Criminal Law -Jurisdiction practice and procedure - Information indictment or presentment - Averments - Uncertainty duplicity and ambiguity - A number of false representations made over several years but rolled up in three counts held duplicitous. Crimes Act 1914 (Cth), s29D. R v Greenfield (1973) 57 Cr App R 849, DPP v Merriman [1970] 3 AC 584, Walsh v Tattersall (1996) 139 ALR 27, applied. (Aus Dig Criminal Law [713].)

HOBART, 13-14 November 1996 (hearing), 19 February 1997 (decision)

1 Appeal against convictions allowed. 2 Convictions quashed. 3 Orders of sentence and reparation set aside. 4 There be a new trial of the appellant.

1. The appellant was arraigned, and pleaded not guilty to this indictment (formal parts omitted):

"1 STATEMENT OF CRIME Defraud the Commonwealth contrary to Section 29D of the Crimes Act 1914 (Cth). PARTICULARS That Marlene Taylor between 1 November 1984 and 12 June 1986 (inclusive) defrauded the Commonwealth in that she obtained payment of a Sole Parent Pension from the Department of Social Security in the sum of $13,840.20 to which she was not entitled. 2 STATEMENT OF CRIME Defraud the Commonwealth contrary to Section 29D of the Crimes Act 1914 (Cth). PARTICULARS That Marlene Taylor between 26 June 1986 and 31 December 1992 (inclusive) defrauded the Commonwealth in that she obtained payment of a Sole Parent Pension from the Department of Social Security in the sum of $72,301.40 to which she was not entitled. 3 STATEMENT OF CRIME Defraud the Commonwealth contrary to Section 29D of the Crimes Act 1914 (Cth). PARTICULARS That Marlene Taylor between 14 January 1993 and 20 May 1993 (inclusive) defrauded the Commonwealth in that she obtained payment of a Sole Parent Pension from the Department of Social Security in the sum of $2,126.00 to which she was not entitled."

2. During the course of argument following a submission of no case to answer, the particulars to each count were amended to delete the words "to which she was not entitled". The appellant was found guilty on each count and orders of sentence were made. The appellant has appealed against conviction and seeks leave to appeal against sentence.

3. The following are the grounds of appeal against conviction:

"1 The learned trial judge erred in directing or ruling that it was not a defence for the appellant to show that notwithstanding any false statement she may have made in the course of obtaining a sole parent pension from the Department of Social Security she was by virtue of living separately and apart from her husband under the one roof nevertheless eligible and/or entitled to such pension. 2 The learned trial judge erred in exercising his discretion to allow the indictment to be amended by the deletion of the words '... to which she was not entitled'. 3 The learned trial judge erred in ruling or directing that it was not necessary for the purpose of proving the crimes stated in the indictment, (either before or after it was amended), that it be proved that the appellant was not entitled to the pension she obtained. 3A The indictment and/or the conviction founded upon it are bad for duplicity and/or uncertainty. 3B That the appellant's trial miscarried as a result of the Crown providing particulars which made no reference to the fraudulent failures of the appellant to declare income to the Department of Social Security, or to fraudulent concealments as to her marital status, not opening generally in accordance with those particulars and then leading evidence about such failures and concealments. 3C That the learned trial judge erred in failing to instruct the jury as to the use of the evidence referred to in ground 3B as to those failures and concealments. 3D The verdict of the jury is unsafe and unsatisfactory in that the evidence was wholly inadequate to permit the jury to conclude that acts or omissions of the appellant alleged to be fraudulent were true or false at the time they were made and/or their operative effect. 3E That the learned Trial Judge erred in failing to instruct the jury that the Crown case was confined to an allegation that the appellant had defrauded the Commonwealth by imperilling its economic interest and not by causing it actual loss by obtaining pension payments to which she was not entitled."

The Crimes Act 1914 (Cth), s29D

4. The Crimes Act 1914 (Cth), s29D creates a statutory offence simply expressed:

"A person who defrauds the Commonwealth or a public authority under the Commonwealth is guilty of an indictable offence."

5. By virtue of the Acts Interpretation Act 1901 (Cth), s17(a), "Commonwealth" means the Commonwealth of Australia.

6. Fraud is a well used word in the criminal law, but its concepts are difficult to define. According to Stephen's History of the Criminal Law (1883) Vol 2 at 121 (cited in Scott v Metropolitan Police Commissioner [1974] UKHL 4; [1975] AC 819 at 836), "[t]here has always been a great reluctance amongst lawyers to define fraud and this is not unnatural when we consider the different kinds of conduct to which the word is applied in connection with different branches of the law ...".

7. Perhaps the statutory offence created by s29D has its provenance in the old common law offence of cheating. See Hawkins Pleas of the Crown, ch71; Russell on Crime (12 ed) ch70. Whatever its provenance, the statute offers no guidance with respect to the meaning of defraud as enacted in s29D.

8. In In re London and Globe Finance Corporation Limited [1903] 1 Ch 728 Buckley J at 732 - 733 considered the meaning of the words "with intent to deceive or defraud" as enacted in two criminal statutes. With respect to this he said:

"... To deceive is, I apprehend, to induce a man to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false. To defraud is to deprive by deceit : it is by deceit to induce a man to act to his injury. More tersely it may be put, that to deceive is by falsehood to induce a state of mind ; to defraud is by deceit to induce a course of action."

9. This dictum was considered by Lord Radcliffe in Welham v Director of Public Prosecutions [1960] AC 103. In this case the House of Lords was called upon to consider the meaning of the expression "intent to defraud" as enacted in the Forgery Act 1913 (UK), s4(1). At 126 his Lordship observed that Buckley J's dictum (set out above) was clearly obiter and rejected it as an authoritative exposition of the meaning of the words "intent to defraud" whenever enacted in a criminal statute. With encouraging certainty, Lord Radcliffe opined at 123 - 124:

"Now, I think that there are one or two things that can be said with confidence about the meaning of this word 'defraud.' It requires a person as its object: that is, defrauding involves doing something to someone. Although in the nature of things it is almost invariably associated with the obtaining of an advantage for the person who commits the fraud, it is the effect upon the person who is the object of the fraud that ultimately determines its meaning. This is none the less true because since the middle of the last century the law has not required an indictment to specify the person intended to be defrauded or to prove intent to defraud a particular person. Secondly, popular speech does not give, and I do not think ever has given, any sure guide as to the limits of what is meant by 'to defraud.' It may mean to cheat someone. It may mean to practise a fraud upon someone. It may mean to deprive someone by deceit of something which is regarded as belonging to him or, though not belonging to him, as due to him or his right. It passes easily into metaphor, as does so much of the English natural speech. Murray's New English Dictionary instances such usages as defrauding a man of his due praise or his hopes. Rudyard Kipling in the First World War wrote of our 'angry and defrauded young.' There is nothing in any of this that suggests that to defraud is in ordinary speech confined to the idea of depriving a man by deceit of some economic advantage or inflicting upon him some economic loss."

10. That passage was cited with approval by Viscount Dilhorne in Scott v Metropolitan Police Commissioner (supra) at 838. His Lordship there observed that although Lord Radcliffe in Welham was concerned only to interpret the words in the Forgery Act, the cited passage is "of general application". In Welham, Lord Radcliffe said at 124, that although in most cases the intention to deceive someone to his prejudice usually means a gain for the deceiver and a corresponding loss for the deceived, this is not necessarily always so. His Lordship referred to three old authorities as support for this statement and said, at 124:

"But in that special line of cases where the person deceived is a public authority or a person holding a public office, deceit may secure an advantage for the deceiver without causing anything that can fairly be called either a pecuniary or an economic injury to the person deceived."

11. This observation was also referred to with approval by Viscount Dilhorne (obiter) in Scott at 839. In the same case at 840, Lord Diplock expressed agreement with the reasons for judgment of Viscount Dilhorne and at 841, said:

"(2) Where the intended victim of a 'conspiracy to defraud' is a private individual the purpose of the conspirators must be to cause the victim economic loss by depriving him of some property or right, corporeal or incorporeal, to which he is or would or might become entitled. The intended means by which the purpose is to be achieved must be dishonest. They need not involve fraudulent misrepresentation such as is needed to constitute the civil tort of deceit. Dishonesty of any kind is enough. (3) Where the intended victim of a 'conspiracy to defraud' is a person performing public duties as distinct from a private individual it is sufficient if the purpose is to cause him to act contrary to his public duty, and the intended means of achieving this purpose are dishonest. The purpose need not involve causing economic loss to anyone."

12. In Attorney-General's Reference No 1 of 1981 [1982] 2 All ER 417, the Court of Appeal applied the dictum of Viscount Dilhorne in Scott. The Court held, at 422, that "fraudulent conduct" in the Customs and Excise Management Act 1979 (UK), s170(2) meant:

"... dishonest conduct deliberately intended to evade the prohibition or restriction with respect to, or the duty chargeable on, goods as the case may be. There is no necessity for the prosecution to prove acts of deceit practised on a customs officer in his presence."

13. Wai Yu-tsan v R [1992] 1 AC 269 concerned a conviction in the High Court of Hong Kong on one count of conspiracy to defraud. The relevant conduct was entries made by the appellant in the books of his employer, the Hang Lung Bank of which the appellant was the chief accountant. With respect to the issue of whether fraud required proof of actual loss on the part of the bank, the Privy Council referred (inter alia) to the passage in Lord Diplock's speech in Welham which I have set out above and expressed the opinion that its approach was too narrow. The following passage is taken from their Lordships' advice at 277:

"With the greatest respect to Lord Diplock, their Lordships consider this categorisation to be too narrow. In their opinion, in agreement with the approach of Lord Radcliffe in Welham v Director of Public Prosecutions [1961] AC 103, the cases concerned with persons performing public duties are not to be regarded as a special category in the manner described by Lord Diplock, but rather as exemplifying the general principle that conspiracies to defraud are not restricted to cases of intention to cause the victim economic loss. On the contrary, they are to be understood in the broad sense described by Lord Radcliffe and Lord Denning in Welham v Director of Public Prosecutions the view which Viscount Dilhorne favoured in R v Scott [1974] UKHL 4; [1975] AC 819, as apparently did the other members of the Appellate Committee who agreed with him in that case (apart, it seems, from Lord Diplock)."

14. Their Lordships then turned to an earlier case, R v Allsop (1976) 64 Cr App R 29, and held that conspiracy to defraud encompassed an agreement with another to act dishonestly with the intention of creating a state of affairs that the accused realised would, or might, deceive the victim of the dishonest conduct into acting or failing to act in a way that would cause actual loss or would imperil his or her economic interest.

15. In Australia, the principles expressed in Wai Yu-tsan v R (supra) were adopted by the Full Court of the Federal Court in Barker v R (1994 - [1994] FCA 1577; 1995) 127 ALR 280 at 307. In Brott v R (1991 - 1992) 173 CLR, the High Court considered the scope of the expression "fraudulent intent" as an element in the crime of forgery. The judgment in Wai Yu-tsan v R (supra) had not been delivered at the time Brott was argued and is not referred to, but Brennan J referred to Lord Radcliffe's speech in Welham and said at 431:

"It is not necessary to prove that any prejudice was actually suffered; a possibility of prejudice is enough."

16. I think it wise to join the lawyers to whom Stephen referred and shy away from an attempt to identify the elements in the crime created by s29D any wider than is necessary for the purposes of this case. Analysis of the authorities to which I have referred shows that before the appellant could be found guilty, the jury had to be satisfied beyond reasonable doubt with respect to each count separately:

1 that she; 2 acted dishonestly; 3 with the intention of causing an officer or officers of the Commonwealth to pay or decide to pay her "a sole parent pension" in or about the sum specified in each count; and that 4 she received from the Commonwealth of Australia such pension.

17. The question of whether the appellant was entitled to that benefit in any event and thus, whether the Commonwealth of Australia suffered any economic loss by reason of the fraudulent conduct, was immaterial to the issue of criminal liability. However, it is clear from the transcript of proceedings that the whole thrust of the defence was that the appellant was not guilty because even if she made false statements in connection with the payment of the benefit, she was entitled to the payment of the benefit in any event and therefore the Commonwealth had suffered no economic loss. Upon the authorities to which I have referred, this matter was irrelevant to the issue of criminal liability and the words "to which she was not entitled" appearing in each of the three counts of the indictment were otiose. Accordingly, grounds 1, 2 and 3 of the appeal fail.

18. It is important to note at the outset that the indictment pleads neither act nor omission relied upon by the Crown as constituting the relevant dishonest conduct. The so called particulars are not particulars at all. They merely re-state the crime and the alleged result of its commission viz, the obtaining of a sole parent pension in about the sum of money specified in each count. This is contrary to the Criminal Code, s311(1) which requires that in addition to a statement of crime, the indictment include "such particulars as may be necessary for giving reasonable information as to the nature of the charge." The learned trial judge adverted to this before the Crown opened its case. At the same time, the learned trial judge raised the question of duplicity (although not using that word) with senior counsel for the Crown at the trial. His Honour questioned whether the Crown case was that the appellant committed a crime each time she received a benefit. Senior counsel for the Crown described the indictment as a "rolled up charge" and said that the Crown case was that "at all times" the appellant was living in a bona fide domestic relationship with her husband. I should interpolate here that we were informed by counsel for the respondent on the hearing of the appeal, that there were three counts instead of a single count of defrauding the Commonwealth because the penalty sections in the Crimes Act 1914 (Cth) were twice amended during the period the Crown alleged that the appellant had defrauded the Commonwealth. He said that the commencement dates particularised in counts 2 and 3 coincided with the dates those amendments took effect. Counsel's statement that the Crown case was that at all times the appellant was living in a bona fide domestic situation with her husband totally failed to address the question asked by the learned trial judge. There is nothing dishonest or fraudulent in a married woman living with her husband. Had counsel directed his mind to the issues in the case, he would have answered the learned trial judge's question by identifying the appellant's conduct in which the Crown alleged she engaged, dishonestly and with the intention of causing the Commonwealth to pay her a pension. There followed this exchange between senior counsel for the Crown and the learned trial judge:

"MR LALOR: The Crown case is that at all times she was living in a matrimonial relationship with her husband. Your Honour had the problem with rolled up charges and the reason the courts have dissuaded the Crown from bringing such charges is that as your Honour says, if the accused was to say (or one of the witnesses was to say) well 'No, I left for a lengthy period'; things of that nature, and the jury was uncertain as to how it could find on one occasion and not another occasion, but then found that yes, during a certain period of time there was a bona fide marriage, it is not appropriate because there is uncertainty... HIS HONOUR: Well you say that here the Crown case is that they were living together for the entire period? MR LALOR: Yes your Honour. HIS HONOUR: And so the Crown stands to win completely or lose completely? MR LALOR: That's right. HIS HONOUR: And there's not going to be any confusion in the jury's mind as to particular dates or periods of times within those expressed in the charges? MR LALOR: No, not on the Crown case. HIS HONOUR: All right then. Mr Angle, [counsel for the accused] are you content with that? MR ANGLE: I am your Honour, yes. HIS HONOUR: And you are content with the way the charges have been formulated. MR ANGLE: Yes your Honour."

19. The apparent failure of senior counsel for the Crown to properly address the issues in the Crown case and those assurances from counsel for the appellant at the trial led the trial into error.

20. The Crown case was opened to the jury in the following manner. The appellant first became the recipient of a Social Security benefit in 1977. It was then called a supporting mother's benefit. Prior to 1977 she was living in a de facto relationship with a Mr Jones. They separated at the end of 1976 and the appellant accordingly applied for the benefit. Some time after the separation, the appellant entered into a relationship with Mr Taylor. There were three children of that relationship born on 31 March 1978, 21 March 1979 and 14 September 1980. The appellant made statements in documents she gave to the Department of Social Security (later tendered in evidence) to the effect that she was not living in a de facto relationship with Mr Taylor. Payment of the benefit continued. In 1981 the appellant advised the Department of Social Security that she was about to marry Mr Taylor. This marriage took place on 7 March 1981 and in result payment of the benefit stopped.

21. On 28 August 1981, the appellant again made application for the payment of the benefit. In the application form, she stated that she and Mr Taylor had separated that day. By this time, the benefit was called a supporting parents benefit. The application was accepted and the benefit was first paid on 10 September 1981. Thereafter the benefit was paid to the appellant each fortnight until 20 May 1993.

22. Although Mr Lalor told the learned trial judge that "the Crown case is that at all times she was living in a matrimonial relationship with her husband", the appellant was not charged with committing any crime until 1 November 1984. The reason for this was that any relevant conduct of the appellant prior to that date was not an offence contrary to s29D for the crime of defrauding the Commonwealth did not exist until 25 October 1984 when the Crimes Act, s29D was inserted by Statute Law (Miscellaneous Provisions) Act (No 2) 165/1984, s2(9).

23. Senior counsel for the Crown opened the case to the jury, and later adduced evidence to the effect that between 10 September 1981 and 20 May 1993, the appellant made a number of statements to the Department of Social Security in various forms, all to the effect that she was not living with her husband or a person of the opposite sex, or that she did not share her accommodation with any person other than her children. Senior Crown counsel then said to the jury:

"Now, it's the Crown case that between the times I put to you that the accused has at all times not declared her true marital status. That prevented the Department from properly assessing her eligibility for benefit and the ultimate result of that was that the Department paid benefit to which she just wasn't entitled."

24. Counsel then went on to outline the evidence that he would be calling. The list of witnesses included Mr Taylor. It transpired from his evidence given later, that he was an alcoholic who consistently failed to support the appellant and his children, and frequently absented himself from home on drinking sprees for varying periods of time.

25. The opening address to the jury concluded without further identification of any specific act or omission of deceit relied upon by the Crown in the case of any count.

26. Prior to the commencement of the trial, particulars of the indictment were sought and given. The request (formal parts omitted) provided:

"Would you please provide us with precise particulars of each instance of conduct by our client which you rely upon to support the allegation that our client defrauded the Commonwealth in relation to each count on the indictment. Where the conduct of our client relied upon consists of our client giving answers or responses to questions, (written or verbal), please provide particulars as to each question and answer given. In view of the trial commencing on Monday, 22nd July, please provide the above requested particulars by close of business on Friday, 19th July."

"1 That Marlene Taylor stated in Entitlement Reviews dated 10th October 1984 and 13 September 1985 that she was separated which was false. 2 Between 21 December 1986 and 15 June 1993 Marlene Taylor lodged 12 Weekly Sole Parent Review forms with the Department of Social Security in which she stated that no other adult of the opposite sex lived at her address. 3 All the statements Marlene Taylor provided to the Department of Social Security were misleading in that she failed to advise the Department of Social Security that she had reconciled with her husband Graeme John Taylor."

28. The existence of these particulars was not disclosed to the learned trial judge until after the close of the Crown case and during an ill-conceived and ill-fated submission that there was no case to answer. Why neither counsel disclosed the particulars to the learned trial judge at the very beginning of the trial, especially in the light of the matters he then raised with counsel, is a mystery. After all, as Dixon J (as he then was) pointed out in Johnson v Miller (1937 - [1937] HCA 77; 1938) 59 CLR 467, at 490 the very purpose of particulars is to identify the occurrence or transaction that is the subject matter of the charge and to distinguish it from other transactions or occurrences that are capable of being the subject matter of a charge. Recourse to that basic principle immediately shows that the appellant's statement of 10 October 1984, referred to in particular 1, could not have been conduct constituting a fraud on the Commonwealth for the crime did not exist until fifteen days after the statement was made. That is not to say that the statement was inadmissible, for a failure to disclose the true position after making the statement and after s29D came into effect, might amount to defrauding the Commonwealth if that failure was dishonest and intended to cause the Commonwealth to continue paying the benefit during the period nominated by count 1. However, I digress from the main point.

1 Five written statements or forms made by the appellant to the Department of Social Security prior to the application for payment of a benefit made on 28 August 1981. The first of these is dated 31 March 1977, seven years before it is alleged that the appellant committed any crime. (Had the learned trial judge been made aware of the existence of the particulars, it is highly likely that he would not have admitted at least some of these statements into evidence notwithstanding the consent of counsel for the appellant at the trial given when his Honour queried the admissibility of these and other documents.) 2 An application for benefit dated 28 August 1981, a statement of circumstances made by the appellant in support of that application, a letter advising grant of the benefit from 10 September 1981 and a statement by Mr Taylor corroborating that he and the appellant had separated. 3 Three review of maintenance forms, the earliest dated 4 January 1983 and the latest 10 October 1984 and one "Client's Report". 4 Thirty "Sole Parent 12 Weekly Review" forms completed by the appellant between 21 December 1986 and 15 June 1993. 5 One "Sole Parent Pension Review" form dated 28 April 1994 (after the period defined by count 3, but containing statements by the appellant with respect to the period encompassed by all three counts) and two "Statements" made by the appellant, both dated 16 December 1987.

30. All the review forms contain statements by the appellant, expressed by her placing a tick in a box, all to the effect that she was not living with her husband, although the form of the question next to the ticked box differs throughout the period covered by the forms.

31. The particulars and the evidence make it abundantly clear that the Crown case was that on thirty-one separate occasions the appellant dishonestly made false statements in forms she completed and supplied to the Department of Social Security, to the effect that she was living separately from her husband, although, as I have observed, the first of these statements was made before the crime charged existed.

32. Duplicity is a matter of form and not of evidence, although in some cases duplicity may be latent in that it is not apparent until evidence has been led. See R v Greenfield (1973) 57 Cr App R 849 at 855 - 866; R v West [1948] 1 KB 709; Walsh v Tattersall (1996) 139 ALR 27. To borrow the words of Gaudron and Gummow JJ in Walsh v Tattersall (supra), the question is "whether in a single count, the appellant was charged with more than one offence" This question has to be answered in a practical way, for a single count may relate to facts which technically constitute a number of separate offences, but which are also closely related in some manner such as time or circumstance, that in reality, they constitute a single criminal transaction and there is no unfairness to the accused in charging him or her on a single count. In Director of Public Prosecutions v Merriman [1973] AC 584, Lord Diplock said at 607:

"Where a number of acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the eighteenth century, to charge them in a single count of an indictment."

33. The question in this case with respect to each count then, is whether the allegedly false statements in the review forms made during the period encompassed by each count, constituted a single course of deceit or whether each statement amounted to a separate criminal transaction. A similar question faced the High Court in Walsh v Tattersall (supra). The appeal concerned a conviction for an offence contrary to the Workers Rehabilitation and Compensation Act 1986 (SA), s120(1) which provided:

"(1) A person who: (a) obtains by dishonest means any payment or other benefit under this Act; (b) dishonestly claims to be entitled to a payment or other benefit under this Act; or (c) dishonestly makes a statement in relation to a claim under this Act knowing the statement to be false or misleading, is guilty of an offence. Penalty : $10,000 or imprisonment for one year."

34. The prosecution case was that between October 1982 and November 1983 the appellant dishonestly pretended he was ill and unfit for work in order to obtain payments pursuant to the provisions of the Act and in result received payments totalling $21,891.20. Dawson and Toohey JJ said that the conduct relied upon was one compendious false pretence of incapacity for work. However, Gaudron and Gummow JJ said that the words of s120(1)(a) expressly referred to the obtaining of any payment or benefit and said at 34:

"... once a payment or benefit is first so obtained an offence then has been completed. Where there is a temporal sequence of payments or benefits allegedly obtained by dishonest means, the ascertainment of the essential element of dishonesty will be tested at different times. That is not to deny, in the particular circumstances of a case, that the same untrue statements or wilful non-disclosures may have the necessary operative effect in relation to more than one act of obtaining. But there is no offence created of '[obtaining] by dishonest means payments or benefits under [the Act]'. Yet count 1 was so expressed."

35. Their Honours went on to say that their views on the proper construction of the Act were supported by the structure of the Act as a whole.

36. In a lengthy and learned judgment, the other member of the Court, Kirby J, traced the origins of the rule against duplicity. His Honour expressed the view that the rule held good today and adopted a passage from the judgment of Gaudron and McHugh JJ in S v R [1989] HCA 66; (1989) 168 CLR 266 at 284 which concluded with the proposition that the rule against duplicity was founded on "a basic consideration of fairness". Kirby J acknowledged that the rule was sometimes difficult to apply, for some offences require proof of acts committed over a period of time and some offences, such a trafficking, often involve acts done over a period of time. I might here add that defrauding the Commonwealth is an offence that may involve a number of acts and/or omissions committed over a period of time. In such cases then, how is duplicity detected? Kirby J offered this advice at 49:

"Various indicia are proposed to sustain a single count against the charge of duplicity, notwithstanding that it may permit evidence to be adduced of events which, taken individually, could constitute separate offences. The indicia include: (a) the connection of the events in point of time; (b) the similarity of the acts; (c) the physical proximity of the place where the events happened; and (d) the intention of the accused throughout the conduct."

"Perhaps an indication of the considerable difficulty of the task to be found in is the fact that, in many of the leading cases, there is (as in this case) a division of judicial opinion. For instance, Latham CJ dissented in Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 472; Kitto J dissented in Montgomery v Stewart [1967] HCA 11; (1967) 116 CLR 220 at 225; and Brennan J (as he then was) dissented in S v R [1989] HCA 66; (1989) 168 CLR 266 at 267; [1989] HCA 66; 89 ALR 321."

38. The Crimes Act, s29D does not create a separate offence for each payment but I am of the opinion that the indictment is nonetheless bad for duplicity and the convictions must be quashed. The indictment and particulars pleaded that on thirty-one occasions over 6.5 years the appellant dishonestly made statements to the Department of Social Security with the intent and the result of obtaining benefits. Although the statute creating the offence did not fix on the obtaining of a benefit as in Walsh v Tattersall, the indictment and particulars together focus on the obtaining of benefits as a result of making a specified number of false statements. The indictment and the particulars did not plead that there had been a continuous deceitful failure to disclose the true state of affairs. The pleaded case focussed on precisely identified false representations, each made with the intention of obtaining the benefit. As pleaded, the case required the jury to decide with respect to each statement, whether it was false at the time it was made. The indictment and particulars did not allege a breach of s29D upon receipt of each payment, but they did allege a breach of that section each time a particularised false statement was made and ayments of benefit resulted. Such payments continued until the next statement was made. To illustrate the significance of the way the case was pleaded, I draw attention again to the fact that the first statement made after s29D was enacted was dated 13 September 1985. Count 1 alleged the commission of a crime between 1 November 1984 and 12 June 1986. The particulars pleaded that the appellant made a false statement in the review form dated 10 October 1984 but at the time that statement was made, s29D did not exist. Accordingly, the only possible case that could have been made against the appellant between 1 November 1984 and the time she made the statement on 13 September 1985, was that she practised a deceit by failing to notify the Department of Social Security that the statement made on 10 October 1984 was false. However, the case was not so pleaded and accordingly the particulars only supported a very small part of the period charged by count 1.

39. In my view, all three counts on the indictment are duplicitous in that between them they rolled up what was in reality some thirty charges of offences contrary to the Crimes Act, s29D. Ground 3A is made out.

40. Ground 3D claims that the verdicts are unsafe and unsatisfactory because the evidence was not sufficient to "permit the jury to conclude that the acts or omissions of the appellant alleged to be fraudulent were true or false at the time they were made ...". The argument presented in support of this ground was to the effect that the evidence about the appellant and her husband living together during the relevant periods was so sketchy and lacking in detail, that the jury's conclusion that the appellant's statements to the Department of Social Security were false, was unsatisfactory or unsafe. There is no substance in this ground. It is true that the evidence concerning the domestic arrangements between the appellant and her husband were very sketchy and lacking in precision. No doubt this was because counsel did not have their attention focussed on the real issues namely, whether at the time each statement was made it was false. There was evidence that the appellant's husband was an alcoholic and spent periods of time away from the house, either on drinking binges or receiving treatment. Thus, there were periods when he was absent from the house but of course, absences from the matrimonial home do not mean that there has been a separation. Over all, the evidence was to the effect that throughout the whole period the appellant and her husband were living together, albeit, in great disharmony and the jury finding to that effect could not be described as unsafe or unsatisfactory.

41. It is unnecessary to deal with any other ground, but I would like to add that ground 3B is also clearly made out, and alone would justify an order quashing the conviction. There is no reference in the particulars to the appellant defrauding the Commonwealth by failing to disclose income she earned. Notwithstanding this, the Crown led evidence from a Mrs Nichols who said that between 1986 and 1992 the appellant cared for her children in the appellant's home four days a week and for this service Mrs Nichols paid the appellant $70 per week. Counsel for the appellant at the trial did not cross-examine this witness. Notwithstanding the absence of any challenge or objection to this evidence, it is likely that the learned trial judge would have questioned its admissibility on the ground of relevance had counsel made him aware of the particulars. The learned trial judge did not refer to this evidence in his summing up but senior counsel for the Crown told the jury in opening, that "at no time did she declare that income to the Department". Thus, this evidence was inadmissible, not only on the ground of relevance, but also on the ground that it was evidence of bad character not the subject matter of a count and not admissible on any other basis. See Makin v Attorney-General for New South Wales [1894] AC 57.

42. For the above reasons I would allow the appeal against conviction and quash the conviction. I would also quash the orders of sentence and reparation that were made. Although the indictment is presently defective, it is appropriate to order a new trial. The ultimate fate of the indictment will depend upon what happens when the retrial commences.

Marlene Joy Taylor was convicted upon three counts of defrauding the Commonwealth, contrary to the Crimes Act 1914 (Cth), s29D and was sentenced to a term of imprisonment. She now appeals against both conviction and sentence. The grounds of the appeal against conviction are as follows:

"1 The learned Trial Judge erred in directing or ruling that it was not a defence for the Appellant to show that notwithstanding any false statement she may have made in the course of obtaining a sole parent pension from the Department of Social Security she was by virtue of living separately and apart from her husband under the one roof nevertheless eligible and/or entitled to such pension. 2 The learned Trial Judge erred in exercising his discretion to allow the indictment to be amended by deletion of the words '... to which she was not entitled'. 3 The learned Trial Judge erred in ruling or directing that it was not necessary for the purpose of proving the crimes stated in the indictment, (either before or after it was amended), that it be proved that the Appellant was not entitled to the pension she obtained. 3A The indictment and/or the conviction founded upon it are bad for duplicity and/or uncertainty. 3B That [sic] the Appellant's trial miscarried as a result of the Crown providing particulars which made no reference to the fraudulent failures of the Appellant to declare income to the Department of Social Security, or to fraudulent concealments as to her marital status, not opening generally in accordance with those particulars and then leading evidence about such failures and concealments. 3C That [sic] the learned Trial Judge erred in failing to instruct the jury as to the use of the evidence referred to in Ground 3B as to those failures and concealments. 3D The verdict of the jury is unsafe and unsatisfactory in that the evidence was wholly inadequate to permit the jury to conclude that acts or omissions of the Appellant alleged to be fraudulent were true or false at the time they were made and/or their operative effect ie the jury should have had a reasonable doubt as to the element of deceit. 3E The learned Trial Judge erred in failing to instruct the jury that the Crown case was confined to an allegation that the Appellant had defrauded the Commonwealth by imperilling its economic interest and not by causing it actual loss by obtaining pension payments to which she was not entitled."

43. The indictment against the appellant was originally in the following form:

"The 23rd day of May 1996 TASMANIA HOBART TO WIT The Director of Public Prosecutions of the Commonwealth of Australia who prosecutes in this behalf for Her Majesty the Queen, informs the Court and charges MARLENE TAYLOR with:- 1 STATEMENT OF CRIME Defraud the Commonwealth contrary to Section 29D of the Crimes Act 1914 (Cth). PARTICULARS That Marlene Taylor between 1 November 1984 and 12 June 1986 (inclusive) defrauded the Commonwealth in that she obtained payment of a Sole Parent Pension from the Department of Social Security in the sum of $13,840.20 to which she was not entitled. 2 STATEMENT OF CRIME Defraud the Commonwealth contrary to Section 29D of the Crimes Act 1914 (Cth). PARTICULARS That Marlene Taylor between 26 June 1986 and 31 December 1992 (inclusive) defrauded the Commonwealth in that she obtained payment of a Sole Parent Pension from the Department of Social Security in the sum of $72,301.40 to which she was not entitled. 3 STATEMENT OF CRIME Defraud the Commonwealth contrary to Section 29D of the Crimes Act 1914 (Cth). PARTICULARS That Marlene Taylor between 14 January 1993 and 20 May 1993 (inclusive) defrauded the Commonwealth in that she obtained payment of a Sole Parent Pension from the Department of Social Security in the sum of $2,126.00 to which she was not entitled. ANTHONY DAVID DAVIS For and on behalf of the Commonwealth Director of Public Prosecutions Filed in the Supreme court of Tasmania this 23rd day of May 1996. Clerk of the Court"

44. Prior to the trial, counsel for the appellant sought and obtained further particulars from the Commonwealth Director of Public Prosecutions. Those particulars, delivered on 18 July 1996, were given in respect of each count in the indictment and were in the following form:

"PARTICULARS 1 That Marlene Taylor stated in Entitlement Reviews dated 10th October 1984 and 13 September 1985 that she was separated which was false. 2 Between 21 December 1986 and 15 June 1993 Marlene Taylor lodged twelve Weekly Sole Parent Review forms with the Department of Social Security in which she stated that no other adult of the opposite sex lived at her address. 3 All the statements Marlene Taylor provided to the Department of Social Security were misleading in that she failed to advise the Department of Social Security that she had reconciled with her husband Graeme John Taylor."

45. The prosecution case was that the appellant's activities over the period covered by the indictment indicated a continuing course of conduct on her part, accompanied by an intent to defraud the Commonwealth of sole parent benefit payments. This fraudulent scheme was allegedly first manifested in the appellant's original claim for benefit which was made well before the commencement of the Crimes Act 1914, s29D on 1 November 1984. For this reason, evidence relating to that claim and its contents was introduced during the course of the trial. It was not contended by the Crown that s29D had any retrospective effect so as to enable a conviction of the appellant based upon her original fraudulent claim. Rather, it was alleged that the relevant fraud justifying the appellant's conviction consisted of her continuation of the representations made in the original claim, coupled with an acceptance by her of monies paid by the Department or its relevant officers acting in reliance upon the original representation. It was upon this basis that the prosecution opened its case to the jury, but, as the trial progressed, it became apparent that there was considerable confusion on the part of the counsel and the learned trial judge as to the issues upon which the jury's verdicts were required. No question as to possible duplicity in the indictment was raised by defence counsel. Indeed, he specifically eschewed it when discussing the matter with the learned trial judge. Consequently the central issue raised by the present appeal received little, if any, attention.

46. Furthermore, as the trial unfolded, it became apparent that the appellant was seeking to show either that she was entitled to the periodic sums which she had received from the Department of Social Security notwithstanding any deceit on her behalf, or, at the very least, that it could not be shown by the prosecution that she was not so entitled. Obviously it was assumed by the appellant's legal advisers that success on this point would justify her acquittal. When these issues became manifest, the prosecution sought, and was granted, leave to delete the concluding words "to which she was not entitled" from each statement of particulars appearing in the indictment. It should perhaps be noted that the particulars supplied by letter dated 18 July 1996 were neither incorporated in the indictment by amendment nor placed before the jury at any stage of the trial. As a result of the deletions which were made at the prosecution's request, the appellant's alleged lack of entitlement to the monies received should have ceased to be a live issue in the proceedings. The prosecution secured the deletions by persuading the learned trial judge that actual lack of entitlement on the part of the accused was not an essential ingredient of the offences and that the accused could and should be convicted of those offences if it was shown that by deceit she had "imperilled the economic interests of the Commonwealth".

47. I must say that although such a formulation has found favour as the basis for establishing fraud in some cases in the past, notably in cases in which the accused's deceit has induced a course of conduct which had the potential to cause financial loss to some other person or entity at a later date, it seems to me to have been an inappropriate, if not erroneous, basis upon which to leave the case to the jury in the present circumstances. The Commonwealth case was that the appellant had made false representations to the Department of Social Security several years ago and that those misrepresentations, coupled in many instances with further false statements or representations, had resulted in her being paid benefits during the period between the commencement date of s29D and 20 May 1993. In Barker v R [1994] FCA 1577; (1994) 127 ALR 280 at 307, Jenkinson and O'Loughlin JJ said:

"In Wai Yu-tsan v R [1992] 1 AC 269 it was held sufficient to constitute a defrauding that a deceit, and the same may be said of concealment, has caused the imperilment of the economic interest of the person deceived or, in the case of bodies corporate and polities, the economic interest of the body on behalf of which that person is acting. The Judicial Committee approved reasoning of the English Court of Appeal in R v Allsop (1976) 64 Cr App R 29 which included the following observations (at 31, 32): 'Generally the primary objective of fraudsmen is to advantage themselves. The detriment that results to their victims is secondary to that purpose and incidental. It is "intended" only in the sense that it is a contemplated outcome of the fraud that is perpetrated. If the deceit which is employed imperils the economic interest of the person deceived, this is sufficient to constitute fraud even though in the event no actual loss is suffered and notwithstanding that the deceiver did not desire to bring about an actual loss. We see nothing in Lord Diplock's speech to suggest a different view. "Economic loss" may be ephemeral and not lasting, or potential and not actual; but even a threat of financial prejudice while it exists it [sic] may be measured in terms of money. ... Interests which are imperilled are less valuable in terms of money that those same interests when they are secure and protected. Where a person intends by deceit to induce a course of conduct in another which puts that other's economic interests in jeopardy he is guilty of fraud even though he does not intend or desire that actual loss should ultimately be suffered by that other in this context.' The Supreme Court of Canada has also approved that reasoning: R v Olan (1978) 41 CCC (2d) 145 at 150; Vézina v R (1986) 25 DLR (4th) 82 at 96. Nor is it in our opinion inconsistent with any authority binding on this court. In our opinion the learned trial judge's directions in relation to the required detriment were both legally correct and apt in reference to the circumstances which the evidence disclosed. At the time of the trial it was not possible to say with certainty that the Commonwealth would suffer economic loss in consequence of the concealment alleged in that count. It was possible that thereafter the Chaplins would be compelled to pay the whole of the aggregate debt of $3,800,000 together with interest thereon. But there could be no room for doubt that the concealment if it had occurred as the Crown contended had imperilled the economic interest of the Commonwealth."

48. There were three counts in the indictment effectively covering the period between the commencement of s29D and 20 May 1993 and we were informed by counsel during the hearing of the appeal that the reason for so dividing the allegations was that different penalties applied in respect of the crime specified in s29D during each of those periods. To my mind this was not a logical or adequate basis for creating three counts where, upon the prosecution's own case, only one crime had been committed. This, however, is by the way and is not an issue which arises directly on this appeal. It does, however, tend to illustrate some of the problems which can arise when an attempt is made to conceptualise the relevant parameters of a supposedly continuing offence.

49. It seems to me that despite having changed the nature and emphasis of the case by obtaining an amendment to the indictment during the trial, the prosecution case was nonetheless presented to the jury, both by the prosecutor himself in his final address, and by the learned trial judge in his summing up, as a case in which the appellant had actually received benefit payments which she would not have received if the true facts had been known to the Department. It is not really surprising that the trial went off the rails in this way because, despite the prosecution attempt to salvage proceedings by reformulating its case as one of economic imperilment, the real complaint was, and always had been, that the appellant had defrauded the revenue of specified identifiable sums of money by her deceitful representations. If she had failed to achieve that result by her conduct, it may well be that she should have been charged with attempting to defraud the Commonwealth rather than actually defrauding the Commonwealth by imperilling its economic interests.

50. It seems to me that the confusion which attended the trial has, to some extent, carried over into the appeal. In this connection I draw attention to grounds 3B and 3C. During the course of the trial, evidence was adduced by the prosecution to show that at times during the relevant period the appellant had been engaged for reward to perform babysitting duties and had not declared her receipt of such monies to the department. In my opinion, this evidence was inadmissible. It showed that the appellant was either generally dishonest or had committed other offences thus reflecting adversely upon her character. I am unable to see how this evidence was relevant in any other way to the charges before the court. In grounds 3B and 3C it is complained that no direction was given to the jury by the learned trial judge as to a legitimate use which may have been made of such evidence. However, it seems to me that the real objection to the evidence as to the babysitting money is more fundamental than that. The evidence was inadmissible and was capable of prejudicing the fair trial of the indictment. For these reasons I am of opinion that the trial miscarried in at least two respects and that the appeal should be upheld.

51. As there must be a new trial at which, in the discretion of the prosecution, a new indictment may be filed (see Nicholas v R [1989] Tas R (NC 24)), there seems to be little profit in pursuing ground 3A of the appeal. That ground claims that the indictment was bad for duplicity or uncertainty. It was argued that there was both "patent" and "latent" duplicity in the indictment which had not been cured by the delivery of particulars prior to the trial or by the amendments made at trial. This submission was based upon observations made by the Justices comprising the majority in Walsh v Tattersall (1996) 70 ALJR 884.

52. I am in little doubt that there was at least latent duplicity in the three counts in the indictment, and I was originally of the opinion that there was no need to express a concluded view on the matter raised because if the indictment were to be presented again in its existing form, amended at the new trial, or, if a new indictment were to be filed, the trial judge would then have to make a determination upon the duplicity issue. However, since preparing these reasons I have had the advantage of reading what Zeeman J has said on this matter and as I am fully in agreement with his views, it may provide useful guidance to the parties to be aware of the views of this Court upon the question.

53. I would uphold the appeal and concur in the orders proposed by Zeeman J.

54. The appellant was convicted by verdict of a jury on each of three counts of defrauding the Commonwealth, contrary to the Crimes Act 1914 (Cth), s29D, contained in one indictment. On the indictment, she was sentenced to imprisonment for a term of eighteen months. It was ordered that upon her giving security by her own recognisance in the sum of $1,000, she be of good behaviour for a period of three years and be released after having served eight months of that sentence. In addition, a reparation order was made by which the appellant was required to make reparation to the Commonwealth in the sum of $88,267.60. The appellant has appealed against her convictions and has applied for leave to appeal against the sentence. At this stage the Court has only heard argument concerning the appeal against the convictions.

55. The grounds of appeal relevant to the convictions are as follows:

"1 The learned trial judge erred in directing or ruling that it was not a defence for the appellant to show that notwithstanding any false statement she may have made in the course of obtaining a sole parent pension from the Department of Social Security she was by virtue of living separately and apart from her husband under the one roof nevertheless eligible and/or entitled to such pension. 2 The learned trial judge erred in exercising his discretion to allow the indictment to be amended by deletion of the words '... to which she was not entitled'. 3 The learned trial judge erred in ruling or directing that it was not necessary for the purpose of proving the crimes stated in the indictment, (either before or after it was amended), that it be proved that the appellant was not entitled to the pension she obtained. 3A The indictment and/or the conviction founded upon it are bad for duplicity and/or uncertainty. 3B That the appellant's trial miscarried as a result of the Crown providing particulars which made no reference to the fraudulent failures of the appellant to declare income to the Department of Social Security, or to fraudulent concealments as to her marital status, not opening generally in accordance with those particulars and then leading evidence about such failures and concealments. 3C That the learned trial judge erred in failing to instruct the jury as to the use of the evidence referred to in ground 3B as to those failures and concealments. 3D The verdict of the jury is unsafe and unsatisfactory in that the evidence was wholly inadequate to permit the jury to conclude that acts or omissions of the appellant alleged to be fraudulent were true or false at the time they were made and/or their operative effect. 3E The learned Trial Judge erred in failing to instruct the jury that the Crown case was confined to an allegation that the appellant had defrauded the Commonwealth by imperilling its economic interest and not by causing it actual loss by obtaining pension payments to which she was not entitled."

56. As amended, the indictment contained the following counts:

"1 STATEMENT OF CRIME Defraud the Commonwealth contrary to Section 29D of the Crimes Act 1914 (Cth). PARTICULARS That Marlene Taylor between 1 November 1984 and 12 June 1986 (inclusive) defrauded the Commonwealth in that she obtained payment of a Sole Parent Pension from the Department of Social Security in the sum of $13,840.20. 2 STATEMENT OF CRIME Defraud the Commonwealth contrary to Section 29D of the Crimes Act 1914 (Cth). PARTICULARS That Marlene Taylor between 26 June 1986 and 31 December 1992 (inclusive) defrauded the Commonwealth in that she obtained payment of a Sole Parent Pension from the Department of Social Security in the sum of $72,301.40. 3 STATEMENT OF CRIME Defraud the Commonwealth contrary to Section 29D of the Crimes Act 1914 (Cth). PARTICULARS That Marlene Taylor between 14 January 1993 and 20 May 1993 (inclusive) defrauded the Commonwealth in that she obtained payment of a Sole Parent Pension from the Department of Social Security in the sum of $2,126.00."

57. In the original form of the indictment there appeared at the end of the particulars of each count the words "to which she was not entitled". The learned trial judge ordered that the indictment be amended by deleting those words. That order was made by him immediately after he had ruled against a submission made by the appellant that she had no case to answer.

58. Prior to trial the appellant's solicitors sought and obtained further particulars of the charges. It is not surprising that the appellant sought further particulars. The particulars in the indictment were entirely deficient in that in each case they particularised the act of defrauding alleged by reference to its consequences, ie, the payment of a Sole Parent Benefit, but in no way identified the deceptive conduct of the appellant relied upon.

59. The request for further particulars was as follows:

"Would you please provide us with precise particulars of each instance of conduct by our client which you rely upon to support the allegation that our client defrauded the Commonwealth in relation to each count on the indictment. Where the conduct Of our client relied upon consists of our client giving answers or responses to questions, (written or verbal), please provide particulars as to each question and answer given. In view of the trial commencing on Monday, 22nd July, please provide the above requested particulars by close of business on Friday, 19th July."

60. The following particulars were supplied in response to that request:

"1 That Marlene Taylor stated in Entitlement Reviews dated 10th October 1984 and 13 September 1985 that she was separated which was false. 2 Between 21 December 1986 and 15 June 1993 Marlene Taylor lodged twelve Weekly Sole Parent Review forms with the Department of Social Security in which she stated that no other adult of the opposite sex lived at her address. 3 All the statements Marlene Taylor provided to the Department of Social Security were misleading in that she failed to advise the Department of Social Security that she had reconciled with her husband Graeme John Taylor."

61. The purpose of particulars is to limit the issues. Notwithstanding this, no mention was made to the learned trial judge or the jury that further particulars had been sought and delivered. It was incumbent upon counsel for the Crown to inform the learned trial judge of the particulars. His failure to do this meant that, as between the Crown and the appellant, the issues were defined in a way which was not communicated to the Court. Where the issues in a case have been defined between the parties in a particular way, that must be made known to the trial judge and the jury.

62. The importance of particulars was recognised by Macrossan CJ in R v Lewis [1994] 1 Qd R 613 at 624 when his Honour said:

"Particulars when ordered and delivered will have a force and significance by virtue of the very fact that our criminal procedure provides for them. Once delivered they will have consequences in the further conduct of the trial. Obviously they will have to be read with the terms of the indictment in defining the terms of the charge and the case which the Crown has to prove."

63. The practical effect of particulars on the conduct of a trial was referred to by Evatt J in Johnson v Miller [1937] HCA 77; (1938) 59 CLR 467 at 497:

"It is an essential part of the concept of justice in criminal cases that not a single piece of evidence should be admitted against a defendant unless he has a right to resist its reception upon the ground of irrelevance, whereupon the court has both the right and the duty to rule upon such an objection. These fundamental rights cannot be exercised if, through a failure or refusal to specify or particularize the offence charged, neither the court nor the defendant (nor perhaps the prosecutor) is as yet aware of the offence intended to be charged. Indeed the matter arises at an even earlier stage. The defendant cannot plead unless he knows what is the precise charge being preferred against him."

64. There is no difference in principle between particulars furnished upon request by an accused person and particulars furnished pursuant to an order of the Court. Whilst no express provision is made by the Criminal Code for the making of such an order, it is undoubted that in a proper case such an order will be made (see Brett v R [1970] Tas SR 41 at 52). Had the Crown declined to furnish the particulars sought, it would have been proper for the Court to order that they be delivered.

65. Before considering particular grounds of appeal, it is necessary to consider the nature of the case as it was presented to the jury. Counsel for the respondent said that the case presented by the Crown was one which alleged continuing conduct by the appellant between 1 November 1984 and 20 May 1993 which could have been charged as one crime. The Crown's reason for charging three separate crimes was that during that period there were various changes to the penalties prescribed for a breach of s29D. Each period the subject of a particular count was a period throughout which a particular penalty was prescribed. It was said that the appellant's conduct had commenced much earlier than 1 November 1984, but at a time before s29D was inserted into the Crimes Act. That section was inserted by the Statute Law (Miscellaneous Provisions) Act (No 2) 1984 which commenced on 25 October 1984.

66. Before counsel who then appeared for the Crown opened the case to the jury, he had some discussion with the learned trial judge after his Honour had raised some concerns as to the form of the indictment. Counsel informed the learned trial judge that it was the Crown case that "at all times" (presumably throughout the periods specified in the indictment during which the appellant received a Sole Parent Pension) the appellant "was living in a bona fide domestic relationship with her husband, and if the jury were not to find that, or was not satisfied that that was so, well all counts would fail". After counsel who then appeared for the appellant expressed his satisfaction with the formulation of the charges, the learned trial judge did not pursue the matter. Had counsel given proper attention to the matters raised with them, the trial might not have suffered from the many unsatisfactory features to which I refer in these reasons.

67. In the course of opening to the jury, counsel for the Crown said:

"... the Crown says that it was defrauded between 1st November 1984 and 20th May 1993 by the accused when she obtained in essence a social security benefit to which she wasn't entitled. There will be exhibited before you the departmental records, their claim forms, their review forms, her statements to the department and things of that nature."

68. After then referring to various claims for the payment of benefit which were not directly relevant to the charges, counsel told the jury that a claim for benefit was lodged by the appellant on 28 August 1981 in which she stated that she had married her husband on 7 March 1981 and had separated from him on 27 August 1981. He referred to various subsequent statements alleged to have been made by her to the department, all to the effect that she was then separated from or not residing with her husband. He then continued:

"She made all those statements in various forms from time to time sent by the Department so that the Department could ascertain her continued status for pension benefit. Now, it's the Crown case that between the times I put to you that the Accused has at all times not declared her true marital status. That prevented the Department from properly assessing her eligibility for benefit and the ultimate result of that was that the Department paid benefit to which she just wasn't entitled."

69. In fact the evidence which was led made it quite clear that it was not the Crown case that the appellant had misrepresented her marital status but rather that she had said, or made statements which suggested, that she was not residing in the same house as her husband when the contrary was the case. Counsel for the Crown opened to the jury a quite different matter when he told them, without any objection from counsel for the appellant:

"... an amount of $70.00 per week she received by way of babysitting. Interpolating there, at no time did she declare that income to the department and a Mrs Nichols will come and give evidence and state that she babysat her children for about five years and was paid $70.00 per week in relation to that."

70. The terms in which that matter was opened could only have been construed by the jury as a suggestion that the failure of the appellant to disclose to the department income she had received in her capacity as a baby sitter amounted to some form of wrongdoing on her part and that that in some way was relevant to their consideration of the charges. Yet counsel had shortly before informed the learned trial judge that the Crown case would fail if the jury were not to be satisfied that at the relevant times the appellant had been living in a bona fide domestic relationship with her husband. The jury were never told how the non-disclosure of the baby sitting income was relevant to the charges. The way in which the case was conducted meant that they could only have used the evidence as evidence of bad character, ie, that the appellant was a person who was prone to tell untruths to the department.

71. I have mentioned the further and better particulars which were furnished to the appellant by the Crown prior to the commencement of the trial. Although those particulars were not disclosed to the jury, evidence of the conduct particularised was placed before the jury and relied upon by the Crown. The evidence led by the Crown indicated that it relied on those particulars. It may be assumed that the appellant's conduct of her case proceeded upon the basis of those particulars. Notwithstanding their non-disclosure, the Crown case was so conducted that those particulars ought to be taken as delineating the ambit of the Crown case.

72. The particulars did not identify the misleading statements relied upon with complete particularity, but, by reference to the evidence actually adduced by the Crown, it can be said that the following statements were being relied upon:

The appellant ticked a box indicating that she was separated.

The appellant ticked a box indicating that she was separated.

The appellant ticked boxes indicating that she was not sharing accommodation with anyone other than her children and was not again living with her spouse or de facto spouse.

The appellant ticked boxes indicating that she was not sharing accommodation with anyone other than her children and was not again living with her spouse or de facto spouse.

The appellant ticked boxes indicating that she was not sharing accommodation with anyone other than her children and was not again living with her spouse or de facto spouse.

The appellant ticked boxes indicating that she was not sharing accommodation with anyone other than her children and was not again living with her spouse or de facto spouse.

The appellant ticked boxes indicating that she was not sharing accommodation with anyone other than her children and was not again living with her spouse or de facto spouse.

The appellant ticked boxes indicating that she was not sharing accommodation with anyone other than her children and was not again living with her spouse or de facto spouse.

The appellant ticked boxes indicating that she was not sharing accommodation with anyone other than her children and was not again living with her spouse or de facto spouse.

The appellant ticked boxes indicating that she was not sharing accommodation with anyone other than her children and had not recently reconciled, married or started living with a person of the opposite sex as if married.

The appellant ticked boxes indicating that she was not sharing accommodation with anyone other than her children and had not recently reconciled, married or started living with a person of the opposite sex as if married.

The appellant ticked boxes indicating that she was not sharing accommodation with anyone other than her children and had not recently reconciled, married or start living with a person of the opposite sex as if married.

The appellant ticked boxes indicating that she was not sharing accommodation with anyone other than her children and had not recently reconciled, married or started living with a person of the opposite sex as if married.

The appellant ticked boxes indicating that she was not sharing accommodation with anyone other than her children and had not recently reconciled, married or started living with a person of the opposite sex as if married.

The appellant ticked boxes indicating that she was not sharing accommodation with anyone other than her children and had not recently reconciled, married or started living with a person of the opposite sex as if married.

The appellant ticked boxes indicating that she was not sharing accommodation with anyone other than her children and had not recently reconciled, married or started living with a person of the opposite sex as if married.

The appellant ticked a box indicating that no other adults lived at her current address.

The appellant ticked a box indicating that no other adults lived at her current address.

The appellant ticked a box indicating that no other adults lived at her current address.

The appellant ticked a box indicating that no other adults lived at her current address.

The appellant ticked a box indicating that no other adults lived at her current address.

The appellant provided no answer to the question whether any other adults of the opposite sex lived at her current address.

The appellant ticked a box indicating that no other adults of the opposite sex lived at her current address.

The appellant ticked a box indicating that no other adults of the opposite sex lived at her current address.

The appellant ticked a box indicating that no other adults of the opposite sex lived at her current address.

The appellant described her marital status as "separated" and ticked a box indicating that no persons of the opposite sex, other than her children, lived at her current address.

The appellant ticked a box indicating that no persons of the opposite sex, other than her children, lived at her current address.

The appellant described her marital status as "separated" and ticked a box indicating that no persons of the opposite sex, other than her children, lived at her current address.

The appellant described her marital status as "separated" and ticked a box indicating that no persons of the opposite sex, other than her children, lived at her current address.

The appellant described her marital status as "separated" and ticked a box indicating that no persons of the opposite sex, other than her children, lived at her current address.

The appellant ticked a box indicating that no persons of the opposite sex, other than her children, lived at her current address.

73. The first two of those statements are of particular significance because a statement by the appellant that she was separated from her husband could not be said to be untrue if, at the time that she made it, she was living separately and apart from her husband although they both resided in the same house. Surprisingly, neither the appellant nor her former husband, who was called by the Crown, were asked to direct their minds to the situation at the times that those statements were made, although the appellant made some general suggestions that, at least for some part of the relevant period, she and her husband were living separately and apart under the same roof. In the course of his summing up the learned trial judge referred to those statements but gave the jury no particular instructions concerning them. Unless at least one of those statements amounted to a deceit, the offence charged by count 1 could not have been made out.

74. These grounds may be dealt with together because, if the ruling the subject of ground 3 was correct, none of these grounds can succeed. The grounds proceed upon the basis that the crime of defrauding the Commonwealth may be committed in one of two distinct ways, namely by fraudulent conduct which causes actual loss and by such conduct which imperils the economic interests of the Commonwealth. Counsel submitted that the way in which the appellant was charged was such that the Crown relied upon actual loss and, in order to show such loss, it was necessary to show that the appellant had obtained something to which she was not entitled. That categorisation finds some authority in the speech of Lord Diplock in R v Scott [1974] UKHL 4; [1975] AC 819 at 841 but was rejected by the Privy Council in Wai Yu-tsang v R [1992] 1 AC 269 at 277.

75. The argument based on the proposition that, by abandoning the allegation that the appellant was not entitled to the benefit, the case was transformed from one alleging actual loss to one alleging the imperilment of the Commonwealth's economic interests, fails to appreciate the real significance of the references in the cases to an imperilment of economic interests. In particular cases, the argument has been advanced that there was no defrauding because the person deceived was not deprived of anything tangible. In other cases the argument has been advanced that because the person deceived was not deprived of anything which could be regarded as belonging to the person, because he was acting as a public official, there has been no defrauding. Both arguments have been rejected and in the course of rejecting each of them courts have referred to the imperilment of economic interests.

76. The meaning of the word "defraud" was considered in the speech of Lord Radcliffe in Welham v Director of Public Prosecutions [1961] AC 103 at 123 - 124:

"Now, I think that there are one or two things that can be said with confidence about the meaning of this word 'defraud.' It requires a person as its object: that is, defrauding involves doing something to someone. Although in the nature of things it is almost invariably associated with the obtaining of an advantage for the person who commits the fraud, it is the effect upon the person who is the object of the fraud that ultimately determines its meaning. This is none the less true because since the middle of the last century the law has not required an indictment to specify the person intended to be defrauded or to prove intent to defraud a particular person. Secondly, popular speech does not give, and I do not think ever has given, any sure guide as to the limits of what is meant by 'to defraud.' It may mean to cheat someone. It may mean to practise a fraud upon someone. It may mean to deprive someone by deceit of something which is regarded as belonging to him or, though not belonging to him, as due to him or his right. It passes easily into metaphor, as does so much of the English natural speech. Murray's New English Dictionary instances such usages as defrauding a man of his due praise or his hopes. Rudyard Kipling in the First World War wrote of our 'angry and defrauded young.' There is nothing in any of this that suggests that to defraud is in ordinary speech confined to the idea of depriving a man by deceit of some economic advantage or inflicting upon him some economic loss. Has the law ever so confined it? In my opinion there is no warrant for saying that it has. What it has looked for in considering the effect of cheating upon another person and so in defining the criminal intent is the prejudice of that person: what Blackstone (Commentaries, 18th ed, vol 4, at p 247) called 'to the prejudice of another man's right.' East, Pleas of the Crown (1803), vol 2 at pp 852, 854, makes the same point in the chapter on Forgery: 'in all cases of forgery, properly so called, it is immaterial whether any person be actually injured or not, provided any may be prejudiced by it.' Of course, as I have said, in ninety-nine cases out of a hundred the intent to deceive one person to his prejudice merely connotes the deceiver's intention of obtaining an advantage for himself by inflicting a corresponding loss upon the person deceived. In all such cases the economic explanation is sufficient. But in that special line of cases where the person deceived is a public authority or a person holding a public office, deceit may secure an advantage for the deceiver without causing anything that can fairly be called either a pecuniary or an economic injury to the person deceived. If there could be no intent to defraud in the eyes of the law without an intent to inflict a pecuniary or economic injury, such cases as these could not have been punished as forgeries at common law, in which an intent to defraud is an essential element of the offence, yet I am satisfied that they were regularly so treated."

77. His Lordship's reference to the "special line of cases" ought not to be construed as indicating that there is a special category of defrauding where there is no more than an imperilment of economic interests. The passage which I have set out, which was approved by the Privy Council in Wai Yu-tsang v R (supra) is authority for the following propositions:

1 "defrauding" requires the following elements: (a) the practising of a deceit with the intention of obtaining an advantage; (b) the infliction of a corresponding loss on the person deceived or on some other relevant person or body; and 2 the nature of the advantage and of the corresponding loss need be no more than an imperilment of an economic interest even though no actual loss is suffered and even though the deceiver did not intend to bring about an actual loss.

78. Those principles find support in R v Allsop (1976) 64 Cr App R 29. That was a case of conspiracy to defraud. The appellant was a broker who submitted to a finance company offers to take goods on hire purchase. Various of the offers contained material mis-statements in order to induce the company to accept the offers which it might not have accepted had it known the true position. The defence relied on what was said to be the appellant's fundamental intention which was to bring about an increase in the business which he took to the finance company to the ultimate benefit of all concerned, the appellant believing that the transactions which he introduced would be duly completed by the hirers of the goods and not intending that the finance company suffer any pecuniary loss. In rejecting this argument, the court said, at 31:

"It seemed to this Court that [counsel's] argument traversed the shadowy region between intent and motive. Generally the primary objective of fraudsmen is to advantage themselves. The detriment that results to their victims is secondary to that purpose and incidental. It is 'intended' only in the sense that it is a contemplated outcome of the fraud that is perpetrated. If the deceit which is employed imperils the economic interest of the person deceived, this is sufficient to constitute fraud even though in the event no actual loss is suffered and notwithstanding that the deceiver did not desire to bring about an actual loss."

79. It is not an element of the crime of defrauding that the person obtaining the advantage is not entitled to it. The essence of the crime is the deceit. By removing the references to the appellant not being entitled to the benefit the crimes charged remained the same, ie, practising a deceit upon the Commonwealth with a view to obtaining the payment of a benefit. The references in the indictment to the non-entitlement of the appellant to the benefit were mere surplusage.

80. The ruling the subject of ground 3 was correct and it follows that all these grounds fail. Even if the learned trial judge had not amended the indictment, he would have been bound to tell the jury that the Crown was not required to prove that the appellant had not been entitled to the payment of the relevant benefits.

81. The relevant law has recently been considered by the High Court in Walsh v Tattersall (1996) 70 ALJR 884. In that case the appellant had been charged by one count with obtaining by dishonest means payments or benefits under the Workers Rehabilitation and Compensation Act 1986 (SA). In summary, the particulars of that count were that between October 1992 and October 1993 the appellant, by dishonest means, had obtained from his employer various payments of income maintenance and the payment of various medical, rehabilitation and like expenses by dishonestly pretending that by the reason of a specified injury suffered by him in the course of his employment in July 1991, he required and incurred medical and ancillary expenses and was incapacitated for work. The appellant appealed against his conviction on this count on the basis that it was bad for duplicity.

82. In the South Australian Full Court, Perry J summarised the prosecution case as being that "the appellant's course of conduct amounted to one compendious false pretence of incapacity for work". By a majority, the High Court quashed the conviction but the members of the court who constituted the majority did so for different reasons. Gaudron and Gummow JJ did so on the basis that the relevant section did not create the offence charged. They said, at 889 - 890:

"Section 120(1)(a) fixes upon the obtaining of a payment or other benefit under the statute, where that payment or benefit was obtained 'by dishonest means'. In a particular instance, the dishonest means by which this result is achieved may comprise a number of untrue statements or wilful non-disclosures, identified as a course of conduct extending over a period. But, once a payment or benefit is first so obtained an offence then has been completed. Where there is a temporal sequence of payments or benefits allegedly obtained by dishonest means, the ascertainment of the essential element of dishonesty will be tested at different times. That is not to deny, in the particular circumstances of a case, that the same untrue statements or wilful non-disclosures may have the necessary operative effect in relation to more than one act of obtaining. But there is no offence created of '[obtaining] by dishonest means payments or benefits under [the Act]'. Yet count 1 was so expressed. ... ... The Act taken as a whole, in the manner we have indicated, displays the intention to create an offence in the direct terms used in s 120(1)(a), and not otherwise. A discrete offence is completed upon the receipt of any one payment or benefit, whereas count 1 spoke of 'payments or benefits' which were made under the Act and obtained by dishonest means."

83. The third member of the majority, Kirby J, held that the charge was impermissibly duplicitous. His Honour said, at 902 - 903:

"With all respect to those who are of a different view, I cannot agree to any reduction in the strict approach to resolving questions of duplicity in the pleading of criminal charges. A strict approach has been consistently applied by this Court from Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 through Iannella v French [1968] HCA 14; (1968) 119 CLR 84 and up to S v The Queen [1989] HCA 66; (1989) 168 CLR 266, the latter having been decided in 1989. Quite apart from the consistent application of the authority of this Court, there are reasons of legal principle or policy which favour the approach of this Court ... ... This Court should adhere to its longstanding insistence that, save for statutory warrant and for the exceptional cases of continuing offences or facts so closely related that they amount to the one activity, separate offences should be the subject of separate charges. The Act under which the appellant was charged clearly contemplated that obtaining each payment or benefit was a separate offence. Each should have been the subject of a separate charge."

84. Although the members of the majority reached their conclusion that the charge was bad for somewhat different reasons, each of them was of the view that the statute under which the appellant was charged contemplated that the obtaining of a particular benefit or payment was a separate offence and that therefore it was impermissible to charge the obtaining of various benefits and payments as one offence. Whether that is because the statute did not create such an offence (as held by Gaudron and Gummow JJ) or because the charge was duplicitous as charging several offences in one count (as held by Kirby J) did not affect the ultimate result that the charge was bad.

85. The way in which the charges against the present appellant were formulated and particularised was such that they relied on misrepresentations made by the appellant at various times and in various documents. Each of those misrepresentations was relied upon by the Crown as a deceit by which the appellant intended to induce a course of conduct in the Commonwealth. If proved, a deceit on the part of the appellant with that intention and having the requisite effect amounted to a defrauding of the Commonwealth (Wai Yu-tsang v R (supra) at 277).

86. Counsel for the respondent submitted that the deceit practised by the appellant was a "compendious false pretence" in the form of her failure to advise the department of her living arrangements. That is not the way in which the charges were particularised. The request for particulars was clear in that it asked for particulars of the conduct of the appellant relied upon to support the allegation that she defrauded the Commonwealth. The particulars furnished did not suggest that the Crown relied on any ongoing failure to advise, but on specific statements made by her in various documents and that those statements were misleading. That such was the nature of the Crown's case is re-inforced by the statement in opening to the jury made by counsel who prosecuted which is the second of the statements to which I have referred at page 4 of these reasons.

87. It follows from what I have written that the Crown alleged thirty-one separate deceits on the part of the appellant and therefore thirty-one acts of defrauding. The views expressed by Kirby J in Walsh v Tattersall (supra), if adopted, would inevitably require the conclusion that that required that each of those acts be the subject of a separate count. That view should be adopted, even though the other members of the court who formed the majority in that case found it unnecessary to express a relevant view. The observations made by Dawson and Toohey JJ, who were in dissent in that case, require the same conclusion. Their Honours said, at 886:

"Where then is the duplicity of which the appellant complains? It lies in the argument that an offence under s 120(1)(a) of the Act is complete as soon as a person obtains by dishonest means 'any payment or other benefit' under the Act. (The appellant's argument did not relate to any of the other counts in the complaint and summons against him.) That is no doubt correct, so long as it is understood that 'payment' and 'benefit' in par (a) include the plural [Acts Interpretation Act 1915 (SA) s 26] and that a course of conduct may be involved. The next step in the argument is that it is wrong to add up the payments and benefits obtained by the appellant over a period of time and to join them in one count. This, it is said, constitutes duplicity because a number of alleged offences are contained in the overall charge. It is at this step that the argument breaks down. It is true that count 1 did embrace a number of payments. But the case against the appellant was not that on each occasion he received a payment there was a separate dishonest pretence that he was incapacitated for work. That is a case that the prosecution might have sought to make out. If it had, the count would have alleged the commission of a number of offences. A question might then have arisen as to the joinder of those charges in one complaint. [See s 51(1) of the Summary Procedure Act.] But it would have been a different case to the one which the appellant faced."

88. In the present case the Crown asserted that the appellant had made thirty-one separate dishonest pretences in various terms but all inconsistent with the true position, namely that she was then cohabiting with her husband, and that each had resulted in a number of payments of benefit being made to her. On the basis of what was said by each of Dawson, Toohey and Kirby JJ, at least thirty-one separate charges of defrauding the Commonwealth were encompassed by the three counts contained in the indictment. That placed the appellant in an impossible position because it diverted attention from the requirement that the Crown prove, as to each statement relied upon, that it was untrue at the time that it was made. I have already mentioned that, had their minds been directed to the relevant question, the jury might have taken a quite different view as the first two of the statements relied upon than of the other statements.

89. Regrettably the matter of duplicity was not pursued at the outset of the trial. Clearly the matter troubled the learned trial judge when he raised the form of the indictment. Neither then, nor at various other stages of the trial, did he receive the assistance from counsel to which he was entitled. The many unsatisfactory features of the trial largely were the product of the way in which counsel permitted it to proceed. Although counsel who then appeared for the appellant expressly agreed that the trial should proceed on the indictment, the defects in it are so fundamental and the consequences of the defects so prejudicial to the appellant that this ground alone should result in the convictions being quashed (see R v Traino (1987) 45 SASR 473 at 475).

90. I have already mentioned the opening by counsel for the Crown insofar as it referred to the allegation that the appellant had failed to disclose to the department her earnings from baby sitting. The Crown called Pamela Nichols. She gave evidence that between 1986 and 1992 the appellant took care of her children on four days each week whilst she was at work and that she paid the appellant $70 per week. There was evidence that the appellant did not disclose this income to the department when asked relevant questions by various of the questionnaires in evidence. Those failures were not ever relied upon as being an ingredient of any act of defrauding and were not mentioned in the further and better particulars which were delivered. The question may then be asked why this evidence was introduced. It was irrelevant to the charges as they were formulated and irrelevant to the case as it was presented to the jury. The evidence could only have served the purpose of demonstrating to the jury that the appellant was a dishonest person. Plainly it was inadmissible and should have been excluded, despite the absence of any objection by the appellant (Roughley v R [1995] TASSC 14; (1995) 5 Tas R 8). Ground 3B is made out. It follows that it is unnecessary to deal with ground 3C separately.

91. The evidence entitled the jury to conclude that throughout the relevant period the appellant's husband resided in her house, even though he may not always have been physically present, and that she and her husband resided there as man and wife, notwithstanding the unsatisfactory features of the relationship including the husband's various temporary absences and his failure to provide financial support for his family. The evidence would have entitled the jury to conclude as to each of the relevant statements alleged to have been made by the appellant that she made it, that it was false, that she knew it to be false, that she made it intending that thereby the payment of a benefit would continue and that it formed a basis upon which the department continued the payment of the benefit. The verdicts were not unsafe or unsatisfactory on the bases asserted by ground 3D and it fails.

92. The convictions cannot stand. Some difficulties arise as to further disposition. If the Court had the power to do so, I would quash the indictment and leave it to the Crown to determine whether some other indictment should be filed. However, this Court does not have such a power. I do not consider the entry of verdicts of acquittal to be appropriate. It follows that there must be an order for a new trial. At the same time it should be understood that any trial on the present form of indictment would be inappropriate. A motion to quash would necessarily succeed.

1 that the appeal be allowed; 2 that the convictions, sentence and reparation order be quashed; and 3 that there be a new trial.