Criminal law - Appeal - Duplicity - Concepts of patent duplicity, latent duplicity, uncertainty and ambiguity in a prosecution notice - Prosecution notice alleging one offence of trespass did not raise patent duplicity - Manner of conduct of the case and evidence presented by the prosecutor did not give rise to latent duplicity

Criminal Procedure Act 2004 (WA)

Housing Improvement Act 1940­1965 (SA)

Workers Rehabilitation and Compensation Act 1986 (SA)

1 Under s 70A(2) of the Criminal Code (WA), it is an offence to trespass on a place without lawful excuse. The requisite 'trespass on a place' can be proved in a number of ways. Two of these are to show the accused did (i) 'enter or be in the place without the consent or licence of the owner, occupier or person having control or management of the place' or (ii) 'remain in the place after being requested by a person in authority to leave the place'.[1]

2 The question posed by this appeal can be summarised as follows:

Is it duplicitous for a prosecution notice to charge a person with one count of trespass, by reference to s 70A(2) of the Criminal Code, when the notice is particularised in opening submissions as including 'one composite activity' involving entry to the place without consent and remaining in the place after being requested to leave by a person in authority?

3 The answer in the circumstances of this case is 'no'. Although the application of rules concerning latent duplicity can sometimes involve fine distinctions of fact, the prosecution notice is not patently duplicitous. It charged only a single offence. Nor is there any latent duplicity because the evidence disclosed that the acts can fairly be regarded as forming part of the same transaction or criminal enterprise. The activity in this case also comprised a continuous trespass from entry into the place without consent, being in the place without consent and remaining in the place without consent after having been asked to leave by a person in authority. It was permissible for the prosecution not to cause multiple charges to be issued from this trespass.

5 By prosecution notice dated 8 February 2011, the appellant, Mr McDonald, was charged with an offence, under s 70A(2) of the Criminal Code, that he 'without a lawful excuse, trespassed on 1178 Hay Street'. The details of the offence specified that the date of the offence was 4 February 2011 and the place of the offence was West Perth.

6 The following facts were undisputed.[2] On 4 February 2011, Mr McDonald had no right of entry onto the site at 1178 Hay Street Perth. Mr McDonald entered the site at 7.05 am and left the site at 8.13 am. Mr McDonald was requested to leave the site by both Mr King and Mr Murphy, who were the two most senior people on site. Mr McDonald failed to leave the site when requested to do so by both Mr King and Mr Murphy. Mr McDonald did not leave the site until the police arrived and escorted him from the site.

7 At his trial in the Perth Magistrates Court, Mr McDonald submitted that the offence of trespass under the Criminal Code had not been proved beyond reasonable doubt because: (i) it was not proved that he entered the place without consent; and (ii) it was not proved that either Mr King or Mr Murphy was a 'person in authority' within the meaning in the legislation. Mr McDonald also defended the charge of trespass on the basis that he had made an honest and reasonable mistake of fact or, alternatively, that he had an honest claim of right.[3] Both these defences were rejected by the learned Magistrate, and there is no appeal in relation to those issues. Nor does the appeal relate to any of his Honour's findings of fact.

8 Mr McDonald was convicted. He was fined $1,500 with costs of $2,000.

9 Section 70A of the Criminal Code provides as follows:

70A. Trespass

(1) In this section -

person in authority, in relation to a place, means -

(a) in the case of a place owned by the Crown, or an agency or instrumentality of the Crown - the occupier or person having control or management of the place or a police officer; or

(i) the owner, occupier or person having control or management of the place; or

(ii) a police officer acting on a request by a person referred to in subparagraph (i);

(a) to enter or be in the place without the consent or licence of the owner, occupier or person having control or management of the place; or

(b) to remain in the place after being requested by a person in authority to leave the place; or

(c) to remain in a part of the place after being requested by a person in authority to leave that part of the place.

(2) A person who, without lawful excuse, trespasses on a place is guilty of an offence and is liable to imprisonment for 12 months and a fine of $12 000.

(3) In a prosecution for an offence under subsection (2), the accused has the onus of proving that the accused had a lawful excuse.

10 The prosecutor opened her submissions as follows:[4]

[T]his charge is constituted by trespassing on a place contrary to section 70A of the Criminal Code ... In cases of a charge under that section, the court must ask itself two questions: firstly, was there a trespass and, secondly, was there a lawful excuse for the trespass? Trespass is the single element that must be proved by the prosecution. However, there are two potentially relevant definitions of trespass in section 70A and the prosecution relies on the first two of those three.

11 After an exchange with his Honour, the prosecutor then repeated:[5]

In order to ensure fairness to the accused, I want to make it clear that the prosecution expressly relies on both (a) and (b) in that definition ... Although those matters, we say, could have been charged separately, they are, we say, appropriately the subject of a single charge in accordance with the well-recognised exception to the rule against duplicity in relation to multiple acts that are so close in time and place that they could be viewed as one composite activity.

12 The learned magistrate then said that defence counsel 'may want to ask, "Well, which one are you talking about?"'. To which the prosecutor replied:[6]

She has, and my answer is both because they are properly the subject of a single charge, in that they are so close in time and place as to fall within a well-recognised exception to the rule against duplicity.

13 Counsel for Mr McDonald rose shortly after this, during the prosecutor's opening, to clarify that Mr McDonald did not 'intend to run a defence that there was a lawful excuse and admit that there was no right of entry, either federal or state'. His Honour replied that 'that means it is just a simple trespass case'. Counsel for Mr McDonald agreed and explained that Mr McDonald would run a defence of mistake of fact.[7] No submission was made concerning any alleged duplicity or ambiguity in the charge.

14 In closing written submissions the prosecution alleged that the Mr McDonald had committed the single offence of trespass, contrary to s 70A(2) of the Criminal Code, by 'entering without the consent or license of the owner, occupier or person having control or management of the place (s 70A(1)(a))', and 'remaining after being requested to leave by a person in authority (s 70A(1)(b))'. The prosecution alleged that 'both of these two definitions have been proved'.

15 Although it was submitted in closing submissions that the matters could have been charged separately, and although the prosecution requested the Court to make separate findings in relation to the elements of the definition, the prosecutor said in written submissions that the elements of the definition 'are appropriately the subject of a single charge in accordance with the wellrecognised exception to the rule against duplicity in relation to multiple acts that are so close in time and place that they can be viewed as one composite activity and that the acts 'apparently occurred with the same intention of the accused throughout the conduct'.[8]

16 The closing written submissions from counsel for Mr McDonald then raised the objection concerning duplicity for the first time.[9]

17 The learned Magistrate explained that in Mr McDonald's evidence Mr McDonald had conceded that he had entered the place and then remained in the place after being requested to leave by persons in authority.[10] His Honour concluded that it was established beyond reasonable doubt that on 4 February 2011:

Mr McDonald did enter without consent onto the premises of 1178 Hay Street, Perth after being requested by 2 persons in authority to leave those premises.

18 As I have explained, the learned Magistrate rejected Mr McDonald's excuses under s 22 and s 24 of the Criminal Code.

19 The words used by the learned Magistrate in the paragraph quoted above include aspects of both of the definitions of 'trespass' in s 70A(1) of the Criminal Code. It may be that the learned Magistrate was using the word 'after' in the sense of 'afterwards'. The context of his Honour's reasons supports the conclusion that, on 4 February 2011, Mr McDonald committed trespass within all of the definitions of trespass below:

(i) entering the place without the consent or licence of the owner, occupier or person having control or management of the place (definition (a)); or

(ii) being in the place without the consent or licence of the owner, occupier or person having control or management of the place (definition (a)); or

(iii) remaining in the place after being requested by a person in authority to leave the place (definition (b)).

20 No ground of appeal is explicitly concerned with the Magistrate's infelicity of wording. Indeed, counsel for Mr McDonald accepted that nothing turned upon this matter. The conflation of the definitions in the reasons of the learned Magistrate was relied upon only as an illustration of the latent duplicity which was said to exist.[11]

21 Mr McDonald appeals to this Court on the two grounds that the learned Magistrate erred on the ground of failure to dismiss the charge for duplicity and latent ambiguity. The particulars of the appeal grounds referred separately to the failure of the learned Magistrate to give reasons in relation to duplicity or latent ambiguity, but it was conceded by Mr McDonald on this appeal that this ground could not make any difference to the result. If the charge is not duplicitous or ambiguous then it cannot matter that no reasons were given.[12]

22 The essence of the grounds of appeal was that the prosecution notice, on its face, charged two different offences of trespass (patent duplicity) or, alternatively, that the evidence led by the prosecution potentially disclosed more than one act of criminal trespass (latent duplicity) and that it was therefore uncertain as to which of two possible offences Mr McDonald was convicted.[13]

23 In relation to patent duplicity, the respondent's written submissions explained that an allegation of patent duplicity must be raised at the start of the trial, before the prosecution opens its case. This led to an interesting change of position in oral argument on this appeal, with counsel for the appellant arguing that the prosecution notice did not contain any patent duplicity and counsel for the respondent arguing that any duplicity it contained must be patent. Since the issue of patent duplicity remained alive to some degree, and since the first ground of appeal was never abandoned, I address patent duplicity below.

The concepts of duplicity, ambiguity and uncertainty

24 There is sometimes confusion between the different concepts of patent duplicity, latent duplicity, ambiguity and uncertainty. Historically the labels have been used in different senses from those in which they are commonly used today.

25 Duplicity arises on the face of the indictment or prosecution notice if more than one offence is contained, either conjunctively or disjunctively, in the indictment or prosecution notice. Such cases are now commonly now described as one of patent duplicity, although historically the term 'uncertainty' was used to describe formal errors in an information which joined more than one offence disjunctively.[14]

26 Alternatively, 'duplicity' might emerge from the facts at trial, in the sense that the way that the prosecution case is to be, or has been, conducted gives rise to the possibility of the accused person being convicted of one of a number of distinct offences. In that case, the prosecution notice or indictment is sometimes now described as giving rise to 'latent duplicity'. Historically, the notice or indictment would have been described as being bad for 'ambiguity'.

27 In Mouritz v The State of Western Australia,[15] Pullin JA, with whom Martin CJ and RobertsSmith JA agreed, said:

[G]enerally, 'duplicity' will refer to a defect in the indictment (and if apparent on the face of the indictment, the defect must be objected to before the jury is sworn.[16] But if the ambiguity or duplicity is latent and only emerges during the hearing of the evidence or if the complaint is that the verdict is uncertain because it may be supported by different facts, then the situation is referred to as 'uncertainty'.

28 This is to use the term 'uncertainty' as a synonym for what was described above as latent duplicity. Some judges prefer to use 'uncertainty' or 'ambiguity' rather than 'latent duplicity' because duplicity is said to be 'a matter of form, not a matter of the evidence called to support the count'.[17] But the use of terms like 'uncertainty' or 'ambiguity' in place of latent duplicity also raises other possibilities because historically the term 'uncertainty' was also used to describe a broad type of defect which was patent on the face of an information. For example, an information which did not include the place, time or date of an offence would be uncertain, just as an information which charged offences in the alternative would be described as uncertain.[18]

29 In this case, I will follow the common modern practice, adopted in this jurisdiction, of using the terms 'patent duplicity' and 'latent duplicity'. Both patent duplicity and latent duplicity can give rise to a miscarriage of justice. McLure JA (as her Honour was then) has summarised the position explaining that '[d]uplicity occurs where there is a single charge which on its face (patent duplicity) or on the facts adduced at trial (latent duplicity) gives rise to more than one offence'.[19]

Ascertaining whether a single offence or multiple offences are involved

30 In cases involving a statutory offence, the starting point in ascertaining whether an offence involves any duplicity, patent or latent, is to consider whether the legislation establishes a single offence or multiple offences. If the legislation creates multiple offences, but only a single offence is charged, then a preliminary question may be whether the accused has been charged with an offence known to law. If the legislation creates a single offence but multiple offences are charged then issues of patent duplicity arise. If multiple acts are alleged in the course of evidence then issues of latent duplicity arise.

31 An indictment or prosecution notice will not be bad for patent duplicity if it falls into one of the exceptions created by legislation (which take the place of the common law). And there will be no latent duplicity if the case falls into the well established exception that applies to cases where multiple acts can properly treated as a single offence.

32 The most recent decision of the High Court of Australia in this area is Walsh v Tattersall.[20] In that case, the accused was charged an offence against s 120(1) of the Workers' Rehabilitation and Compensation Act 1986 (SA). That section provided that:

(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 or this Act;

(c) dishonestly makes a statement in relation to a claim under this Act knowing the statement to be false or misleading,

33 The count itself was charged in the following terms:

Patrick Walsh between October 1992 and October 1993 did obtain by dishonest means from the Womens and Childrens Hospital ... payments or benefits being:

(i) payments of income maintenance amounting to $21,891.20

(ii) payment of medical, rehabilitation and like expenses amounting to $6,789.79

by dishonestly pretending that by reason of the effects of alleged injuries namely anxiety and depression allegedly suffered by him in the course of his employment in July 1991 ... he required and thereby incurred medical and ancillary expenses and was incapacitated for work, whereas he was not so incapacitated.

34 The evidence was that a number of separate payments had been made over the period from October 1992 to October 1993. The particulars specified nine different payments for the 'income maintenance' ($21,891.20) and separate payment for the 'medical, rehabilitation and like expenses' ($6,789.79).

35 The appellant in Walsh submitted that the case was one of patent duplicity or, if not, at least of latent duplicity.[21] It was contended that patent duplicity arose because the terms of the Act and the benefits it provided made it clear that included in the count were many acts of obtaining payments or other benefits, each of which would have to be tested at different times, and each of which would individually constitute an offence against the Act.

36 The High Court took a number of different approaches.

37 In the minority, Dawson and Toohey JJ would have dismissed the appeal and upheld the conviction. Their Honours considered that although the count against the appellant alleged a number of payments, the prosecution case did not allege that there was, on each occasion when he received a payment, a separate dishonest pretence that he was incapacitated for work.[22] Rather, the prosecution case was that there had been one offence of a continuing dishonest representation over the relevant period. Since the activity was of a continuous kind it was legitimate to bring a single charge.

38 In the majority, Gaudron and Gummow JJ ordered that the conviction be quashed. Their Honours held that the Act created a distinct offence upon the receipt of any one payment or benefit. But the charge spoke of 'payments or benefits'. Hence, the charge did not correspond with the legislation and charged an offence which was not known to law.[23]

39 Kirby J also held that the conviction should be quashed because it was duplicitous. His Honour considered that a strict approach should be taken to the question of whether a prosecution notice or indictment gave rise to duplicity. He examined the terms and context of s 120(1) closely and concluded, for five reasons, that the Act was concerned with individual payments.[24] The ultimate conclusion reached by his Honour was as follows:

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. This was apparently the original intention of the police and perhaps of the prosecutor. Unwisely, and in my view unlawfully, it was departed from. That departure resulted in a count which manifested the defect of latent duplicity (emphasis added)

40 Mr McDonald's submission was that the learned Magistrate erred by failing to dismiss the charge for duplicity. In this regard, Kirby J's explanation in Walsh of the consequences of patent or latent duplicity is illuminating:[25]

A finding that the rule against duplicitous charges has been breached does not oblige the court, coming to that conclusion, to dismiss the charge. Where the defect is one of patent duplicity, the proper course is to put the complainant to an election to remove the embarrassment.[26] Where the defect is latent and the particulars do not remove it, the court may direct further particulars; require the complainant to elect and to identify the alleged offences; and/or exercise the power to permit an amendment.[27] If the latent defect, once exposed, suggests a risk that the accused might not have a fair trial on the charges as pleaded, the court should require correction.[28]

41 The first ground of appeal, patent duplicity, concerns the Criminal Procedure Act 2004 (WA) sch 1, cl 2(3), which provides that 'a prosecution notice or indictment must contain one charge only, unless cl 7 or another written law permits otherwise'. Neither cl 7 nor any other written law makes provision for the s 70A(2) offence of trespass.

42 The ground alleging patent duplicity must fail for two reasons. First, the charge was not patently duplicitous: on its face it involved only a single offence of trespass. Secondly, the complaint of duplicity was not raised before the prosecutor's opening address.

Section 70A(2) of the Criminal Code does not create multiple offences

43 In written submissions for Mr McDonald reference was made to an ex tempore 1943 decision of Viscount Caldecote CJ in the English Court of Appeal. In a one paragraph decision, his Lordship said that '[i]f an enactment forbids the doing of act A or act B, it creates two offences and a conviction on one information charging both in the alternative is bad for uncertainty'.[29] With genuine respect to counsel, whose oral submissions were carefully researched and presented and placed no direct reliance on this point, I do not find of great assistance a one paragraph decision given 70 years ago in England, immediately after hearing (ex tempore) and in an area of law which has since been the subject of a number of decisions of the High Court of Australia, and which is also the subject of legislation in this jurisdiction.

44 It is true that the alternative definitions of trespass are separated by the disjunctive 'or', for the purpose of the offence in s 70A(2). But the use of the word 'or' in the definition of trespass is not conclusive that multiple offences have been created. There are many cases in which courts have found that a single offence is created despite the use of the word 'or' in the definition of the offence.[30]

45 The strongest support for Mr McDonald's submission might be the decision (not cited in the appellant's submissions) in Ianella v French.[31] In that case, the High Court of Australia considered s 56a(1) of the Housing Improvement Act 1940-1965 (SA), which included the expression, 'wilfully demands or wilfully recovers as rent'. The wording of the provision was held to create two different offences, and the charging of both offences in a single complaint was held to be duplicitous.

46 Unlike the provision considered in Ianella, s 70A(2) does not create multiple offences of trespass but only creates different ways of proving a single offence of trespass. That is, the alternatives in s 70A(1) are alternatives in the definition of a single offence in s 70A(2). The act which is penalised is the single act of 'trespass'. That act occurs if it possesses one or more of the three characteristics in the definition of trespass.[32]

47 This conclusion is reinforced by the overlapping nature of the alternatives in the definition of trespass. Suppose a person enters the hallway of a place with consent of the owner but, while there, is asked by the owner to leave, consent thereby being removed. He refuses to leave. The person would then have been in the place without the consent or licence of the owner (definition (a)). He would also have remained in the place after being requested by a person in authority to leave the place (definition (b)). He would also have remained in part of the place (the hallway) after being requested by a person in authority to leave the part of the place (definition (c)). It is very difficult to conceive of s 70A(2) as creating three offences of trespass when the person refuses to leave.

48 On the face of the prosecution notice, Mr McDonald was charged only with the single offence of trespass. There was no patent duplicity in the prosecution notice.

49 The respondent submitted that counsel for Mr McDonald had requested particulars of the definition of trespass that was to be relied upon, and that the particulars given meant that the two definitions ((a) and (b)) were incorporated into the prosecution notice. The prosecutor, in opening at trial, said that she had been asked by counsel for the defence which limb of trespass was relied upon, and that 'the answer is both'. But, on this appeal, there was no evidence of any particulars given prior to trial. Nor is there any basis to conclude that oral particulars given in opening were incorporated into the prosecution notice, which is defined in s 3 of the Criminal Procedure Act, as 'a document that contains one or more charges, complies with s 23(2) [which includes a requirement of writing], and is lodged with a court of summary jurisdiction' (emphasis added).

Any complaint of duplicity should have been made at the start of the trial

50 Even if there were patent duplicity in the prosecution notice, an allegation of patent duplicity would be an allegation of a patent defect in an indictment or prosecution notice. Section 178(2) of the Criminal Procedure Act provides that 'any objection by an accused to a prosecution notice or indictment on the ground that it is defective must be made before the prosecutor's opening address'. No objection was made in this case. This is fatal to this ground of appeal.

51 The ground of appeal alleging patent duplicity is dismissed.

Ground 2: 'Latent ambiguity' or 'latent duplicity'

The nature of an allegation of latent duplicity

52 The second ground of appeal is described in Mr McDonald's submissions as 'latent ambiguity'. The terminology is borrowed from the decision in S v The Queen.[33] The appeal in that case concerned whether a miscarriage of justice had arisen from three charges against the accused of acts of carnal knowledge in three periods of time. A majority of the High Court held that a substantial miscarriage of justice occurred.

53 Dawson J explained that 'the three counts were framed in a permissible way ... Had the evidence revealed only one offence in respect of each of the years in question, there could have been no complaint about the form of the indictment' (emphasis added). But since the evidence revealed a number of offences during each of the periods 'there was what has been called a "latent ambiguity" in each of the counts'.[34]

54 Gaudron and McHugh JJ explained that the ambiguity in the charges concerning the acts alleged reveals 'a problem which, by reason of its similarity with the problem involved when a count in an indictment charges two or more separate offences, has sometimes been referred to as "latent duplicity"'.[35]

55 As explained above, a charge will give rise to latent duplicity where, although the indictment or prosecution notice does not, on its face, suggest duplicity, the way that the prosecution case 'is to be, or has been, conducted can be seen to subject the accused to the possibility of being convicted of one of a number of distinct offences'.[36] In other words, latent duplicity can arise if there is only one charge on the indictment but two or more separate acts are relied on by the prosecution, each of which is itself capable of constituting the offence.[37]

56 Mr McDonald's submission was that latent duplicity arose because the prosecution, by its particulars, proceeded on the basis that it could prove either of the definitions of trespass as alternatives.

57 The requirement in s 178(2) of the Criminal Procedure Act that '[a]ny objection by an accused to a prosecution notice or indictment on the ground that it is defective must be made before the prosecutor's opening address' does not apply to cases of latent duplicity; this is because latent duplicity, by its nature, will often become apparent only after the opening address or evidence.[38]

The approach taken to cases of potential latent duplicity

58 In Michaels v The State of Western Australia,[39] the State contended that the appellant was a party to a joint criminal enterprise or alternatively that the appellant did an act for the purpose of enabling or aiding another person to commit the offence. On appeal, the appellant's first ground, relied upon the authorities on duplicity and alleged that the jury had to be unanimous about each of the alternatives: there needed to be a single path to conviction.

59 McLure JA, with whom Owen JA and Miller JA agreed, held that this ground of appeal was unarguable.[40] Her Honour said that 'no issue of duplicity arises where, as in this case, the prosecution relies on alternative bases to prove participation in a single offence under s 7 to s 10 of the Criminal Code (WA)'.[41]

60 In Bui v The Queen,[42] Neave JA (with whom Redlich and Hansen JJA agreed) applied Michaels to a case involving a conviction of the appellant, Mr Bui, of murder. The Crown had claimed that Mr Bui was guilty of murder, either because he had agreed with another to inflict really serious injury on the victim or because he had aided and abetted that other person to kill the victim. Each route to criminal liability for murder involved proof of different matters. The Victorian Court of Appeal held that the charge involved no latent duplicity since it involved 'alternative legal formulations of liability which rests on the same or a substantially similar factual foundation'.[43]

61 Perhaps the most famous statement concerning the application of this principle of duplicity is contained in the remarks of Lord Diplock in DPP v Merriman.[44] Lord Diplock said:

The rule against duplicity ... has always been applied in a practical, rather than in a strictly analytical, way for the purpose of determining what constituted one offence. 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.

62 This passage was quoted with approval by Dawson and Toohey JJ in Walsh.[45] And, as I explained above, it is consistent with Kirby J's conclusion that the rule against duplicity does not apply to the exceptional cases of continuing offences or facts so closely related that they amount to the one activity.

63 Although, on this appeal, counsel for Mr McDonald did not embrace this passage from Lord Diplock as part of Australian law,[46] it is a passage which has been approved on numerous occasions in the Australian courts, both before and after the decision in Walsh: it has been quoted with approval in the Court of Criminal Appeal in South Australia,[47] the Victorian Court of Appeal,[48] the New South Wales Court of Criminal Appeal,[49] the Supreme Court of the Australian Capital Territory,[50] and the Northern Territory Court of Appeal.[51]

64 In the Western Australian Court of Appeal it has been held that where in a single charge one 'activity' or 'transaction' or 'criminal enterprise' is charged it is treated as the one offence for the purposes of the rule against duplicity.[52] Ultimately, the question of whether the acts are part of the same transaction or criminal enterprise is one of fact and degree for decision in each case.[53]

65 Although the question is one of fact and degree, my review of the authorities discloses that there are a number of matters which will be relevant to the assessment. These include:

(ii) the physical proximity of the place where the events happened;

(iv) the intention of the accused throughout the conduct; and

(v) whether different defences are raised in response to the different events.

66 In this case, Mr McDonald's acts occurred at the one place, on 1178 Hay Street. Mr McDonald was found to have entered the site at 7.05 am.[54] As I have explained, the prosecution submitted that Mr McDonald's intention was the same throughout the offence. This was the effect of his Honour's findings.

67 The evidence of Mr King was that he had a short conversation with Mr McDonald at about 7.00 am.[55] That short conversation concluded with Mr King asking Mr McDonald to leave.[56]

68 Mr McDonald's evidence was that he went to the 'smoko sheds' to speak to some people then spoke to Mr Murphy and Mr King.[57] Mr McDonald said that amongst the first things that Mr Murphy and Mr King said was that he had to go.[58] He refused.

69 On any view, Mr McDonald's entry or being in the place without the relevant consent (definition (a)) as well as his remaining in the place after being requested to leave occurred within a very short period of time. Subsequently, Mr McDonald was in, and remained in, the place for approximately one hour following the request.

70 Mr McDonald did not commit a series of separate trespasses. The prosecution was correct to charge him with a single offence of trespass on the basis that the facts disclosed a composite activity or 'part of the same transaction or criminal enterprise'. Mr McDonald committed trespass when he entered the place without the relevant consent and without lawful excuse. That trespass did not cease in the period between his entry and the request for him to leave. He was still 'in the place' within definition (a) in s 70A(1). And he was still trespassing when he remained in the place after having been requested to leave by persons in authority.

71 The facts underlying the different routes to proving trespass were part of the same continuing trespass and, to use the phrase of McLure JA, the prosecution relied on alternative bases to prove a single offence.

73 Since I have reached the conclusion that neither of the grounds of appeal can succeed, it is not strictly necessary to consider whether the 'proviso' might apply so that the appeal would be dismissed if no substantial miscarriage of justice occurred.[59] It is sufficient to make the following observations.

74 The potential injustice to Mr McDonald can be considered by asking what response should have been made if latent duplicity were identified. There are several possibilities identified by Dixon J in Johnson v Miller:[60]

A direction may be given that particulars should be furnished: the complainant may be required to elect among the instances or transactions he proposes to prove and to state definitely to the court which of them is to be treated as the subject of the complaint: or the complaint may be amended so as to indicate one to the exclusion of the others.

75 Mr McDonald's ground of appeal was not that the learned Magistrate had erred by failing to take any of these courses. Rather, the ground of appeal was that the error arose due to the failure of the learned Magistrate to dismiss the complaint for latent duplicity. In Johnson, Dixon J had indicated that an inherent power may exist to dismiss the complaint but only 'as a last resort, and in a very unusual case'.[61] No submissions were made in the present appeal in relation to whether the learned Magistrate had such a power. Nor were there any submissions made concerning whether its exercise would have been the appropriate course to have taken, compared with the alternatives.

76 Counsel for Mr McDonald submitted that the learned Magistrate first erred following the prosecution's opening when the learned Magistrate did not, of his own accord, order that the prosecution elect between: (i) an offence of 'entering or being in' the place without the relevant consent; and (ii) an offence of remaining in the place after being requested by a person in authority to leave the place.

77 The Court of Appeal in Western Australia has said that the fact that ambiguous particulars could have been amended without any material difference to a trial is indicative of there having been no unfairness at the trial.[62] It was assumed on this appeal that the proviso might potentially apply to cases of latent duplicity.[63] Whether this assumption is correct, or whether the preservation of the accused's right to plead autrefois acquit or autrefois convict would always prevent the application of the proviso to a case of latent duplicity is not necessary to decide.[64] Nor is it necessary to decide whether different considerations arise if the trial was before a Magistrate who delivers reasons, rather than a jury.

78 It is sufficient to observe that counsel for Mr McDonald conceded that if the prosecution had been put to its election then this would not have changed the prosecution evidence or the evidence of the accused.[65]

79 Although the terminology of duplicity is not wholly consistent, and although the application of the principle can involve fine questions of fact and degree, in this case the prosecution notice did not involve patent duplicity. Nor did the manner in which the case proceeded create any latent duplicity.

[1] Criminal Code (WA) s 70A(1)(a) (b).

[2] See Reasons of the learned Magistrate, pages 3 4.

[8] Prosecution closing submissions, 7 May 2012 [5] [7]; Prosecution responsive submissions, 22 June 2012 [10].

[9] Defence closing submissions, 14 June 2012; Appeal ts 6.

[10] Reasons of the learned Magistrate, page 2.

[14] Romeyko v Samuels (1972) 2 SASR 529, 553 (Bray CJ); Bastin v Davies [1950] 2 KB 579, 581 (Lord Goddard CJ).

[15] Mouritz v The State of Western Australia [2006] WASCA 165 [42].

[16] See s 590 of the Criminal Code and Bounds v The Queen [2006] HCA 39; (2006) 228 ALR 190.

[17] Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77, 84 (Dawson & Toohey JJ).

[18] See the discussion in J Hunter 'Prosecutors' pleadings and the rule against duplicity' [1980] NSWLJ 248, 250.

[19] Michaels v The State of Western Australia [2009] WASCA 174 [8].

[20] Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77.

[21] Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77, 100 (Kirby J).

[22] Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77, 83.

[23] Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77, 91.

[24] Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77, 101.

[25] Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77, 110.

[26] Iannella v French [1968] HCA 14; (1968) 119 CLR 84, 102 (Taylor J) applying R v Molloy [1921] 2 KB 364; R v Disney [1933] 2 KB 138.

[27] Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, 490 (Dixon J) discussed in Stanton v Abernathy (1990) 19 NSWLR 656, 670. See also Hamzy (1994) 74 A Crim R 341.

[28] S v The Queen [1989] HCA 66; (1989) 168 CLR 266, 276 (Dawson J).

[29] Field v Hopkinson [1944] 1 KB 42, 43.

[30] Romeyko v Samuels (1972) 2 SASR 529; Ex parte Polley; re McLennan (1947) 47 SR NSW 392, Lafitte v Samuels (1972) 3 SASR 1; R v Collins (1993) 67 A Crim R 104 (CCA WA); Salmon [1994] NTSC 21; (1994) 70 A Crim R 536 (SC NT), R v Hoang [2002] SASC 262; (2002) 83 SASR 254; Re Black; Ex parte Commonwealth Director of Public Prosecutions [2009] WASC 41.

[31] Ianella v French [1968] HCA 14; (1968) 119 CLR 84.

[32] Romeyko v Samuels (1972) 2 SASR 529, 551 552 (Bray CJ); 567 (Bright J); compare 570 571 (Sangster J).

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

[34] S v The Queen [1989] HCA 66; (1989) 168 CLR 266, 274.

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

[36] B v The Queen [2008] NSWCCA 85 [53] (Spigelman CJ).

[37] Michaels v The State of Western Australia [2009] WASCA 174 [8] (McLure JA).

[38] Gardner v Caporn [2005] WASCA 153 [102] (RobertsSmith JA); Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77, 109 (Kirby J); Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, 486 (Dixon J) 501 (McTiernan J); S v The Queen [1989] HCA 66; (1989) 168 CLR 266, 269 (Brennan J); 274 (Dawson J); 285 (Gaudron and McHugh JJ); Stanton v Abernathy (1990) 19 NSWLR 656, 671 (Gleeson CJ).

[39] Michaels v The State of Western Australia [2009] WASCA 174.

[40] Michaels v The State of Western Australia [2009] WASCA 174 [8].

[41] Michaels v The State of Western Australia [2009] WASCA 174 [9].

[42] Bui v The Queen [2011] VSCA 404.

[43] Bui v The Queen [2011] VSCA 404 [168].

[44] DPP v Merriman [1973] AC 584, 607.

[45] Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77, 84.

[47] R v Traino (1987) 45 SASR 473, 475 476 (King CJ); Giretti and Giretti (1986) 24 A Crim R 112, 118 (Crockett J).

[48] Rixon v Thompson [2009] VSCA 84 [71] (Kyrou AJA; Maxwell P & Weinberg JA agreeing); R v Heaney [2009] VSCA 74 [38] (Ashley JA).

[49] Hamzy (1994) 74 A Crim R 341, 346 (Hunt CJ at CL); B v The Queen [2008] NSWCCA 85 [74] (Spigelman CJ); Hannes v DPP (Cth) [No 2] [2006] NSWCCA 373 [73] (Basten JA).

[50] R v Goodwin [2009] ACTSC 111 [48], [60] (Refshauge J).

[51] R v Whitington [2006] NTCCA 04; (2006) 197 FLR 103.

[52] Gardner v Caporn [2005] WASCA 153 [110], [133] (RobertsSmith JA; Wheeler JA agreeing on this issue).

[53] Gardner v Caporn [2005] WASCA 153 [120] (RobertsSmith JA); R v Heaney [2009] VSCA 74 [73] (Ashley JA); Rixon v Thompson [2009] VSCA 84.

[59] Criminal Appeals Act 2004 (WA), s 14(2).

[60] Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, 490.

[61] Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, 489.

[62] Cotter v Western Australia [2011] WASC 202 [43] (Hall J; Martin CJ & Newnes J agreeing).

[64] Willers (1995) 81 A Crim R 219, 227 (Malcolm CJ, Anderson J agreeing) referring to 'miscarriage of justice' not a substantial miscarriage. Cf R v Ginies [1972] VR 349, 400 (Winneke CJ, Little & Barber JJ); R v Galvin (No 2) [1961] VicRp 114; [1961] VR 740, 743 (O'Bryan, Dean & Hudson JJ).