Lugo (a pseudonym) v The Queen [2020] VSCA 75

49 Charge 2 was described as a representative charge. That was the description used in the indictment, in the Summary and in the sentencing reasons. On closer examination, however, that characterisation was quite inappropriate. Charge 2 should have been treated as a rolled up charge.

50 As the authorities make clear, a representative charge is a single instance of conduct that occurred in a wider context.[34] Here, charge 2 was said to have two parts, or particulars, each constituting a separate offence. That is, two offences were 'rolled up' into one charge which, of course, can only occur with the consent of the defence.

51 Thus, the Summary describes the 17 February sexual assault as 'particular 1 of 2' and the November sexual assault as 'particular 2 of 2'. Further, the judge in his reasons stated that the February assault 'forms part of charge 2' and that the November assault 'also forms part of charge 2'.

52 Further, this resulted in a degree of artificiality, as follows. Part of what occurred on 17 February (charge 3) was treated as subject to the standard sentence scheme, while another part of what occurred on that date was - by being linked with the November assault as 'part of' charge 2 - treated as part of an offence to which the standard sentence scheme did not apply.

53 We are quite satisfied, however, that nothing needs to be done to correct this

misdescription. The charge was not invalid and, most importantly, the parties proceeded, and the judge sentenced the applicant, on the basis that it was a representative charge. It is to be assumed that the defence accepted the form of the charges to which the guilty pleas were entered.

54 In our view, it would be a rare circumstance where intervention was warranted 'to alter the formal or juridical basis of the plea agreement by means of hindsight analysis'. In the present case, the characterisation of charge 2 as a representative, rather than a rolled-up, charge inured to the applicant's benefit. Plainly enough, therefore, no intervention is called for.

55 Although one cannot be categorical or absolute, generally speaking - and all other things being equal - an indecent or sexual assault of a 10 or 11 year old female child constituted by physical contact with the child's vagina will objectively be more serious than physical contact with the child's chest.[35] Thus, although I agree with the general observations in the majority reasons that any 'sexual touching' in circumstances such as those present in the instant case are to be viewed as serious, and that the 'intimacy' of the conduct will be important, I am unable to agree - insofar as the majority reasons may be interpreted as laying down so much as a general proposition - that the 'particular part of the body' with which contact is made matters not.[36]

56 Of course, it is not difficult to imagine circumstances where sexual touching of a child's chest area may objectively be more serious than contact with her vagina. Thus, by way of example only, premeditated sexual contact with a child's chest area as part of a planned grooming or seduction might generally be regarded as objectively more serious than a fleeting and opportunistic touching of the vaginal region over clothing. At the risk of resorting to an overworked truism, every case must be determined on its particular facts.

57 Having regard to the facts of the present case, I consider the circumstances of charge 2 - a supposedly 'representative' charge involving two incidents of touching K's vagina - as objectively more serious than the circumstances of charge 3, yet charge 2 attracted a sentence of two years and six months' imprisonment, and charge 3 a sentence of four years and four months' imprisonment. At first blush the individual sentences on charges 2 and 3 appear to be discrepant (if not incongruous). And, indeed, further examination and analysis of the circumstances surrounding the two charges has persuaded me that the exercise of the sentencing discretion on charges 2 and 3 has gone gravely awry.

58 It is clear to me that the principal source of difficulty in this case has flown from the prosecution's erroneous characterisation of charge 2 as a representative charge. Proper understanding of its foundational facts leaves no doubt that charge 2 could not have been a representative charge. If anything - and bearing in mind the issue of duplicity - charge 2 could only validly have been a 'rolled-up' charge. Importantly, I regard it as likely that the erroneous characterisation of charge 2 influenced the manner in which the standard sentencing scheme was applied with respect to charge 3, and resulted in a manifestly excessive sentence on that charge.

59 The applicant's offending came to light when K, who was born in November 2006, made a complaint to her mother upon her mother's return home at about 11.30 pm on 17 February 2018. Police conducted a VARE[37] with K the next day, commencing at 11.37 am.

60 As K described it in her VARE on 18 February 2018, the applicant's offending had three main facets: first, the applicant procured K to touch his penis (charge 1); secondly, the applicant touched K's vaginal area on two occasions (charge 2); and, thirdly, the applicant kissed K's chest area (charge 3). Other conduct associated with the charged offending included open-mouthed and tongue kissing.

61 The first facet of the applicant's offending was the basis of charge 1. K's description of the events constituting charge 1, an indecent act with or in the presence of a child under the age of 16 years[38] committed between 1 November 2016 and 30 June 2017,[39] occurred in the latter stages of her interview with police. She described touching her father's penis on one occasion as follows:

Well, he said - he grabbed my hand and - and put it against there and then he said, 'Just hold it', and, yeah, I held it but then he just took it away and then did something else and I forgot what - well, I don't really know what that next thing was.

62 Charge 2, sexual assault of a child under 16 years,[40] embraced the second facet of the applicant's offending, and was based upon two occasions that the applicant touched K in the area of her vagina. The first of those two occasions related to conduct in November 2017; and the second, in the evening of 17 February 2018, formed an intrinsic part of the episode which comprehended kissing K's chest (that conduct being the basis of charge 3). K, in the course of the VARE interview, having described the circumstances of the conduct the previous evening, told the interviewing police that the applicant 'does put his hand down my pants a lot'. She said that she remembered an occasion in November the previous year. K said that the applicant had kissed her with his tongue in her mouth, and, kneeling on the side of her bed, put his hands down her pants 'for a lot longer than last night'.

63 The third facet of the applicant's offending, kissing K's chest area, was the basis of charge 3, also a sexual assault of a child under 16 years. Importantly, this conduct also occurred in the course of the episode in the evening of 17 February 2018, and was closely bound up with one of the two episodes of touching founding charge 2. K told police that the applicant came into her room and knelt beside her bed. He kissed her on the cheek, then on the mouth, inserting his tongue. The applicant then pulled down the 'spaghetti strap' of K's top, and kissed her in the chest area. He kissed her again, and put his hand under her underwear and shorts. The applicant touched her 'rude bit', but 'wasn't doing much actually', he 'just had it there'. Although it is not clear precisely what conduct she was referring to, K told police that 'it started when [she] was six or seven so it was about four and a bit years ... that it's been going on for'.

The characterisation of charge 2 as a representative charge

64 In the course of her opening before the sentencing judge, the prosecutor dealt with the circumstances of charge 2 as follows:[41]

At about 9 pm [on 17 February 2018], the [applicant] entered [K's] bedroom and knelt beside her bed to say goodnight. He kissed her on the cheek and then kissed her with an open mouth on her lips. He inserted his tongue into her mouth. He placed his arms around her and she attempted to push the offender away with her hands but wasn't able to do so because of his tight grip on her.

He pulled down the right strap of her top and kissed her right nipple and breast area. Charge 3.

He again kissed her on her lips with an open mouth. He placed his hand down the front of her pyjama shorts and inside her underwear. He put his hand on her vagina and left it there. This is Charge 2, part of the representative charge and the base incident for sentencing. Then he kissed her right nipple and breast area again.

...

On 18 February 2018, the complainant participated in a VARE conducted by Detective Foster. [K] gave an account of the offences which had occurred the night before. She also gave an account of a previous time in November 2017 when she was in bed. He came in and took off his shirt. He was kneeling on the side of the bed and inserted his tongue into her mouth and put his hands down her pants and touched her vagina. That's part of Charge 2, particular two of two.

65 Counsel for the applicant did not query the prosecutor's characterisation of charge 2. Indeed, in the course of her plea, she made the following submission:

It's conceded that [Charge 2 as] a representative charge, stands out in [scil, when] compared to the other two charges. It's relevant on a two-fold basis. Firstly, it demonstrates in general terms the absence of any mitigating factors - or a mitigating factor I should say - it allows the court to see the offending in its full context.

66 The judge accepted that charge 2 was a representative charge. Thus, in his reasons for sentence he remarked:

Count 2 alleges an offence of sexual assault of a child under 16 years and carries a maximum penalty of 10 years' imprisonment. It is important to note that this is a representative charge, not a rolled up charge, given the important difference as between those two types of charges. But as your counsel appropriately acknowledged in her written submissions, the representative nature of this charge precludes it being said by way of mitigation, that the offence for which you fall to be sentenced was isolated and allows the court to consider your offending in its full context.

67 Although it was accepted before (and by) the sentencing judge that charge 2 was a representative charge, and that characterisation initially was not challenged in this Court, charge 2 was in reality a 'rolled-up charge'. There is an essential difference between the two kinds of charge. A representative charge relates to a single instance of criminal conduct occurring in a broader context, whereas a rolled-up charge bundles more than one instance of offending into a single charge.[42] As was said in DPP v Jones (a Pseudonym):[43]

The essential difference between a representative charge and a rolled-up charge is that the representative count is a single instance of conduct which occurred in a wider context, but a rolled-up charge envelops more than one offence under the umbrella of a single charge. Charles JA described the difference between a representative count and a rolled-up count in Jones:[44]

... [Counsel for the applicant] submitted that where an offender is to be sentenced in respect of an offence which is representative of a number of offences, the sentencing judge is not entitled to impose a sentence in respect of other crimes, but may take such other crimes into account in determining whether or not the offence for which the offender is being sentenced is an isolated offence. He submitted that in sentencing on a rolled-up count the discretion is to be exercised in the same way as it is when a count is treated as a representative count. ...

I do not accept the submission that in sentencing on a rolled-up count the discretion is to be exercised in the same way as when a judge is sentencing on a representative count. It is of course correct that when sentencing on a representative offence the judge is not entitled to impose sentence in respect of other crimes. But in my view, a rolled-up count is entirely different from a representative count. In [counsel for the respondent's] written submissions for the Crown, it was submitted, I think correctly, that rolled-up counts are a collection of counts bundled together into a single count, a procedure which can only occur by agreement with the defence and only for the purpose of a plea of guilty. If a rolled-up count were not included by agreement with the defence (demonstrated as here by the plea of guilty) the count would be vitiated for duplicity. [Counsel for the respondent] argued that reasons of public policy dictate the use of rolled-up counts on a plea of guilty to avoid burdening the presentment with multiple counts. The practice simplifies the task of the sentencing judge and works to the advantage of the prisoner. In the present case, for example, the filed-over presentment contained count 28, rolling up 24 discrete offences of theft which had appeared in separate counts on the original presentment. The use of rolled-up counts operates considerably to the advantage of an accused who intends to plead guilty. For in this case on the original presentment there were 24 counts of theft, for each of which the maximum sentence was ten years, providing a theoretical maximum sentence of 240 years. The compression of these counts into a single count of theft not only considerably eased the task of the sentencing judge, but may be thought by an appellant to give him a considerable benefit in return.

68 The difference between the representative and rolled-up charges is one of substance, not merely of form. A rolled-up charge - which would otherwise be bad for duplicity - captures more than one instance of offending, and may only be included on an indictment by the agreement of the accused and only for the purposes of a guilty plea.[45] On the other hand, a representative charge relates to a single instance of offending, which is viewed against a background of other uncharged offending. The fact that a charge is a representative charge is relevant to sentence in at least two ways. First, since the accused cannot claim that the charged offence was an isolated event, it represents the absence of a mitigating factor. Secondly, a sentencing judge must look at the conduct represented by the charge in order to judge the offending in its full context.[46]

69 Plainly, charge 2 was not a representative charge. It did not relate to a single instance of conduct that occurred in a wider context, but rather to two separate instances of similar conduct. The practical consequences of incorrectly characterising charge 2 as a representative charge include the following. First, given that the standard sentencing scheme introduced by the Sentencing Amendment (Sentencing Standards) Act 2017 applies only to offences committed after 1 February 2018,[47] that part of the applicant's conduct included in charge 2 constituted by touching K's vaginal area in November 2017 was not caught by the standard sentencing scheme. Secondly, quite artificially, as a result of charge 2 being alleged to embrace two separate (but temporally separated) instances of similar conduct, the applicant's touching of K's vaginal area during the evening of 17 February 2018 - which otherwise would have fallen within its ambit - also was not caught by the standard sentencing scheme. Thirdly, by artificially putting the conduct in charge 2 beyond the reach of the standard sentencing scheme, the sentencing task on charges 2 and 3 became unacceptably skewed.

70 On 13 February 2020, well after oral argument had concluded on 6 November 2019, the Court through the Registrar drew the parties' attention to the fact that charge 2 might more correctly be characterised as a rolled-up - not a representative - charge. Submissions were invited in effect as to whether, and how, that characterisation might have affected the operation of the standard sentencing scheme in this case, and, ultimately, the sentence imposed on the applicant.

71 In the Respondent's Further Submissions, provided in response to the Court's invitation, counsel for the respondent demurred to the proposition that charge 2 was a rolled-up charge, and held fast to the argument that charge 2 was a representative charge. The respondent's counsel submitted in any event that it is 'quite unfair to an accused person to alter the formal or juridical basis of the plea agreement by means of hindsight analysis unless the position is free of any conceivable doubt'; and that 'the process of charging might have been approached differently, but that is often the case especially where the end result reached is, no doubt, the product of a negotiated plea settlement'.

72 Counsel for the applicant, in their further written submissions, agreed that charge 2 is properly characterised as a rolled-up charge, and with the notion that there is a degree of artificiality in the nexus between charge 2 and charge 3. They submitted that there is also a further question as to whether, as a matter of law, the two charges can stand together 'in such a "hybrid" manner'. Counsel submitted that issues of duplicity[48] and double punishment[49] may make the original framing of charge 2 on the indictment defective and make the original guilty plea, in effect, a nullity; and if that is so, and if the Court as a matter of law finds that to be so, the question arises as to what power this Court has to remedy a defective plea indictment - and associated guilty plea - that is before it.[50]

73 Notably, the applicant's counsel made no distinct submission that charge 2 was duplicitous, or that the applicant had been doubly punished, or that the framing of charge 2 was defective, or that the original plea of guilty was a 'nullity'. Instead, counsel left it to the Court to answer the questions posed, unaided by any analysis.

74 Counsel for the applicant submitted that it 'appears that there are three possible ways to remedy the defective plea indictment in this case'. First, the Court might grant an extension of time to the applicant to appeal against his conviction on charge 2 on the basis that the charge is 'duplicitous, uncertain and bad at law', and 'substitute' a new charge 2, thereby removing the impermissible 'overlap' between charges 2 and 3. Secondly, the Court could allow the appeal against conviction, and the respondent could file a new indictment that 'amends' charge 2. Thirdly, the Court could grant an extension of time to the applicant to appeal his conviction on charge 2, to allow the appeal and 'remit that charge to the County Court so that it can be dealt with according to law'. The extant sentence application might then proceed in relation to charge 1 and charge 3. Significantly, however, beyond floating several possibilities, counsel for the applicant did not make any application to the Court, whether to challenge the conviction on charge 2 out of time or otherwise.

75 Although hinted at in the Respondent's Further Submissions, neither party sought to enlighten the Court as to how or why charge 2 came to be included in the indictment as a representative charge, when, quite plainly, it was a rolled-up charge. As I have said, its true character as a rolled-up charge is a matter of substance, not simply form - with respect, it is not merely a matter of 'misdescription'[51] - since, as I have also observed, rolling two distinct offences into one charge (absent the consent of an accused) renders a charge bad for duplicity.

76 It may be assumed that the applicant's counsel on the plea acquiesced in, or tacitly consented to, the inclusion of charge 2 on the indictment as formulated. But, given that it is clear from her submissions on the plea that she thought charge 2 to be a representative charge, it must be inferred that such acquiescence or tacit consent was prefaced on a misunderstanding of the true nature of the charge.

77 The majority in this Court have observed that it is clear that the parties proceeded, and the judge sentenced the applicant, on the basis that charge 2 was a representative charge.[52] So much cannot be gainsaid. The majority have also observed that this resulted in a degree of artificiality.[53] Again, so much cannot be gainsaid. I respectfully part company with the majority, however, with respect to their observations that 'the charge was not invalid and, importantly, it is to be assumed that the defence accepted the form of the charges to which the guilty pleas were entered'.[54] Charge 2 may not have been 'invalid', but, in its present form it is bad for duplicity, and could only be cured by election and amendment. Further, as I have said, the acceptance of 'the form of the charges' by the defence clearly was prefaced on a misunderstanding as to the true nature of charge 2.

78 Since the seventeenth century, it has been a fundamental rule that no one count on an indictment may charge an accused person with committing two or more separate offences.[55] That basic rule is reflected in the provisions of the Criminal Procedure Act 2009. Section 159(3)(c) of the Act provides that an indictment must comply with Schedule 1. In turn, cl 5(2) of Schedule 1 makes it clear that, save for a course of conduct charge[56] - which charge 2 was not - the particulars of each offence charged on an indictment must be separately set out:[57]

(2) If more than one offence is charged in a charge-sheet or indictment, the particulars of each offence charged must be set out in a separate, consecutively numbered paragraph.

79 Where more than one offence is joined in a single charge on an indictment the charge is bad for duplicity.[58] The charge is not a nullity, however, and may be cured by the prosecution making an election on which offence it is sought to proceed, and an amendment being made to strike out the other offence (or offences).[59]

80 The rule that a charge is bad for duplicity if more than one offence is joined within it allows for an exception in this State in the case of a rolled-up charge. That exception seems to have been first recognised in Coombs, a case in which eighty separate thefts were charged within four counts. Although his Honour referred to no authority permitting such a course, Young CJ said:

It was pointed out to us that it was unusual to lay the counts in that form but that it was done because there were a large number of offences alleged, altogether, we were told some eighty transactions, and since it was understood that the applicant would plead guilty it seemed more convenient that the matter be handled in this way.

81 Further, the applicant's two acts founding charge 2 were not said to be a single activity of a continuing kind, in which case a single charge might have been legitimate.[60]

82 In the present case I do not accept that the acquiescence or consent of the applicant's counsel to the presence of the duplicitous charge on the indictment was the product of an informed decision. As I have said, counsel apparently failed to recognise that charge 2 was not in reality a representative charge. So much is plain from her submissions on the plea.

83 I consider that charge 2 is bad for duplicity. That duplicity has not been cured by election. And given the apparent lack of informed consent, it was not cured by counsel's acquiescence.

84 Moreover, I do not agree with the majority view that the characterisation of charge 2 as a representative, rather than a rolled-up, charge enured to the applicant's benefit, or that, plainly enough, no intervention is called for.[61] In my opinion, the presence of charge 2 on the indictment in its duplicitous form distorted the exercise of the sentencing discretion. Indeed, I consider that, had the prosecution been made to elect upon which offence involving vaginal touching in charge 2 it wished to proceed, then, depending on the election made, there is every prospect that a different sentence would have been imposed on charge 3.

85 Furthermore, I respectfully disagree with the view that the two sexual assault charges were of comparable seriousness so far as their objective gravity is concerned.[62] I regard the circumstances of charge 2, which involved touching the child's vagina, as objectively more serious than the circumstances of charge 3. In my view, the circumstances of charge 2 - had that charge been caught by the standard sentencing scheme - would more appropriately have been considered to fall within 'the middle of the range of seriousness' of the offence of sexual assault of a child aged under 16. Indeed, I consider the sentence imposed on charge 3 - paying due regard to the standard sentence - to be wholly outside the range of those open in the proper exercise of discretion. I would set aside the sentence on charge 3, thereby opening up the whole of the sentencing discretion.

86 In light of the foregoing, grounds 1, 2 and 4 have been made out.

87 I would grant leave to appeal; allow the appeal; set aside the sentence imposed by the sentencing judge; and, in the very unusual circumstances of this case, remit the matter to the County Court to be dealt with in accordance with these reasons.[63]

88 Substantially for the reasons given by the majority,[64] I would refuse leave to appeal on ground 3.

[1] To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

[2] Crimes Act 1958 s 47(1).

[3] Ibid s 49D(1).

[5] Sentencing Act 1991 s 5A(1); Crimes Act 1958 s 49D(2A).

[6] See Brown v The Queen [2019] VSCA 286 (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA) ('Brown'); DPP v Drake [2019] VSCA 293.

[7] DPP v [Lugo] (Unreported, County Court of Victoria, Judge Gamble, 22 February 2019) [71] ('Reasons').

[8] [2018] VSCA 172 (Maxwell P, McLeish and Ashley JJA).

[10] See, eg, Fichtner v The Queen [2019] VSCA 297, [66] Maxwell P and Kaye JA).

[11] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.

[12] DPP v Terrick [2009] VSCA 220; (2009) 24 VR 457, 459 [5] (Maxwell P, Redlich JA and Robson AJA); [2009] VSCA 220.

[13] Alleged as particular 2 of 2 in the base incident for sentencing.

[15] [2018] VSC 742 (Champion J).

[16] Sentencing Act 1991 s 5A(1)(b).

[17] [2019] VSCA 286 (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA).

[20] [2018] VSC 742.

[23] Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, 132 [29] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); [2011] HCA 39.

[24] Reasons [65]-[67] (citations omitted).

[25] [2019] VSCA 286, [4] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA).

[26] See Crouch (a pseudonym) v The Queen [2019] VSCA 30, [36] (Kyrou and Weinberg JJA).

[27] Ibid [110] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA).

[34] DPP v Jones (a pseudonym) [2013] VSCA 330; (2013) 40 VR 267 [80] (Redlich, Priest JJA and Robson AJA; [2013] VSCA 330.

[35] See Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447, 451-2 (Mason CJ, Wilson, Brennan, Toohey and Gaudron JJ).

[36] See [34] above. Compare [30].

[37] Video and audio recorded evidence. See Criminal Procedure Act 2009, s 367; and Criminal Procedure Regulations 2009, Part 2.

[38] Crimes Act 1958, s 47(1). The maximum penalty is 10 years' imprisonment.

[39] Section 47(1) was effectively repealed by s 16 of the Crimes Amendment (Sexual Offences) Act 2016, which substituted Subdivisions (8C) of Division 1 of Part I of the Crimes Act 1958, with effect from 1 July 2017.

[40] Crimes Act 1958, s 49D(1). The maximum penalty is 10 years' imprisonment.

[41] The Particulars subjoined to charge 2 in the Indictment included: 'Note that Charge 2 is a Representative Charge'.

[42] I note that it has not been suggested that charge 2 could have been charged as a 'course of conduct' charge. See Criminal Procedure Act 2009, Schedule 1, cl 4A, and ss 64A and 181A.

[43] DPP v Jones (a Pseudonym) [2013] VSCA 330; (2013) 40 VR 267, 286-7 [80] (Redlich and Priest JJA) (citations as in the reported version).

[44] R v Jones [2004] VSCA 68 at [12]-[13] (citations omitted; emphasis added). See also R v Beary [2004] VSCA 229; (2004) 11 VR 151 at 156-7 [11]-[14] per Callaway JA. See also Reid (a Pseudonym) v The Queen [2014] VSCA 145; (2014) 42 VR 295, 307-8 [73]-[74].

[45] The origin of such a charge in Victoria can be traced to R v Coombs (Unreported, Victorian Court of Criminal Appeal, 3 September 1979) ('Coombs').

[46] See R v SBL [1998] VSCA 144; [1999] 1 VR 706; R v GLH [2008] VSCA 88; R v RGG [2008] VSCA 94; R v CJK [2009] VSCA 58; (2009) 22 VR 104; R v LJF [2009] VSCA 134; DPP v CPD [2009] VSCA 114; (2009) 22 VR 533, 542 [38]; Reid (a Pseudonym) v The Queen [2014] VSCA 145; (2014) 42 VR 295, 308 [75].

[47] See Sentencing Act 1991, s 162.

[48] Counsel cited S v The Queen [1989] HCA 66; (1989) 168 CLR 266, 284 (Gaudron and McHugh JJ), and Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77.

[49] Counsel cited Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610.

[50] Counsel cited Maxwell v The Queen (1996) 184 CLR 501, 522 (Toohey J).

[51] See [53] above.

[52] See [51] above.

[53] See [52] above.

[54] See [53] above.

[55] S v The Queen [1989] HCA 66; (1989) 168 CLR 266, 284.

[56] See Criminal Procedure Act 2009, Schedule 1, cl 4A and cl 5(3) to cl 5(6).

[57] Rule 3(2) of the former Presentment Rules in the Sixth Schedule of the Crimes Act 1958 was as follows:

(2) Where more than one offence is charged in a presentment the particulars of each offence so charged shall be set out in a separate paragraph called a count.

[58] Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77, 84 ('Walsh'); S v The Queen [1989] HCA 66; (1989) 168 CLR 266, 284; DPP v Merriman [1973] AC 584, 607 ('Merriman').

[59] Byrne v Baker [1964] VicRp 57; [1964] VR 443, 457.

[60] Walsh, 86, 91, 107; Merriman, 495, 607.

[61] See [54] above.

[62] See [35] above.

[63] Criminal Procedure Act 2009, s 282(1)(b).

[64] See [38]-[41] above.