Morley (a Pseudonym) v The Queen [2020] VSCA 180

1 An indictment filed in the County Court charges the applicant and his brother, 'DJ', with fraudulently inducing persons to invest money.[2]

2 Prior to empanelment, counsel for the applicant applied to quash the indictment, claiming that the charges against his client 'are bad for patent and latent duplicity'.

3 In a ruling dated 12 February 2020, the trial judge refused to quash the indictment ('the ruling' or 'the interlocutory decision'). Later, on 21 February 2020, the judge refused to certify under s 295(3)(b) of the Criminal Procedure Act 2009 ('CPA') that the interlocutory decision was of sufficient importance to the trial to justify it being determined on an interlocutory appeal.

4 By a Notice dated 25 February 2020, the applicant seeks review of the refusal to certify and seeks leave to appeal against the interlocutory decision.

5 On the review of a refusal to certify, s 296(4) of the CPA requires the Court to consider the matters referred to in s 295(3) - including whether the interlocutory decision was of sufficient importance to the trial to justify it being determined on an interlocutory appeal - and permits the Court to grant leave to appeal if satisfied as required by s 297. Section 297 permits the Court to give leave to appeal against an interlocutory decision 'only if the court is satisfied that it is in the interests of justice to do so' having regard to enumerated factors, including whether the determination of the appeal against the interlocutory decision may resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial (s 297(1)(b)(iii)); or reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial (s 297(1)(b)(iv)).

6 As we will explain, the charges do not suffer from duplicity in the manner contended for by the applicant. That said, however, the drafting of the charges is less than ideal, and will create practical problems for the trial judge in charging a jury. But since the judge has recognised that the charges will require amendment, this Court's intervention presently cannot be justified.[3] Hence, neither the application to review the refusal to certify, nor the application for leave to appeal against the interlocutory decision, can succeed.

7 In essence, the prosecution case is that in 2009 and 2010 the applicant and his brother controlled two companies which ran a business involved in breeding, fattening and on-selling goats. The applicant was responsible for the day to day management of the farm at which the business was centred, and DJ was responsible for marketing and sales.

8 The complainants, 'PL' and 'PM', were a retired couple.[4] By four separate agreements between November 2009 and February 2010, PL and PM invested a total of $395,000 with the brothers.[5]

9 It is alleged by the prosecution that, in return for the investment money, the applicant and DJ agreed to purchase 26,335 goats at $15 per head and then sell them for profit. The prosecution case is that the brothers fraudulently induced PL and PM to invest in their businesses, both by making misleading and deceptive statements and by dishonestly withholding material facts. It is alleged that the money supposedly invested for the purchase of goats was used for other purposes, and that no goats (or only a small number) were purchased. The promise to buy goats, the prosecution alleges, was deliberately or recklessly misleading, false or deceptive. Further, the prosecution alleges that the applicant and DJ dishonestly withheld information about the history of their goat-farming business, and their general financial position, which would have been relevant to PL's and PM's consideration of whether to invest money with them.

10 The applicant and DJ do not dispute that by four agreements PL and PM paid them $395,000 to buy goats. They also have admitted that at least some of the money was not used to buy goats, but to cover business expenses. Both deny, however, deliberately or recklessly making any false promise to PL and PM, or concealing any material facts from them.

Section 191 of the Crimes Act 1958

11 Each charge on the indictment is laid under s 191 of the Crimes Act 1958, which provides:

191 Fraudulently inducing persons to invest money

(1) Any person who, by any statement promise or forecast which he knows to be misleading false or deceptive or by any dishonest concealment of material facts or by the reckless making of any statement promise or forecast which is misleading false or deceptive, induces or attempts to induce another person -

(a) to enter into or offer to enter into -

(i) any agreement for or with a view to acquiring disposing of subscribing in or underwriting securities or lending or depositing money to or with any corporation; or

(ii) any agreement the purpose or pretended purpose of which is to secure a profit to any of the parties from the yield of securities or by reference to fluctuations in the value of securities; or

(b) to acquire or offer to acquire any right or interest under any arrangement the purpose or effect or pretended purpose or effect of which is to provide facilities for the participation by persons in profits or income alleged to arise or to be likely to arise from the acquisition holding management or disposal of any property other than securities; or

(c) to enter into or offer to enter into an agreement the purpose or pretended purpose of which is to secure a profit to any of the parties by reference to fluctuations in the value of any property other than securities -

shall be guilty of an indictable offence and liable to level 4 imprisonment (15 years maximum).

12 Thus, a person who induces or attempts to induce another person to enter into or offer to enter into an agreement (of the kind specified in sub-ss (1)(a)(i) or (ii) or (1)(c)), or to acquire or offer to acquire a right or interest (as contemplated by sub-s (1)(b)), commits an offence, if he or she does so -

• first, by any statement promise or forecast which he or she knows to be misleading false or deceptive; or

• secondly, by the reckless making of any statement promise or forecast which is misleading false or deceptive; or

• thirdly, by any dishonest concealment of material facts.

13 So as to understand the applicant's contentions concerning duplicity, it is necessary to examine the manner in which the charges are formulated. Each charge against the applicant purportedly is laid under s 191(1)(b) and is expressed in similar terms (with necessary variations to meet the circumstances of the case). It is convenient to set out charge 1 as a specimen:[6]

CHARGE 1 The Director of Public Prosecutions charges that [DJ and the applicant] at Camberwell in Victoria on the 16th day of November 2009 knowingly or recklessly made a misleading, false or deceptive promise

Particulars:

namely:

(a) that they would use the money of [PM and PL] to purchase 7334 goats and deal with them in accordance with a written agreement;

and dishonestly concealed material facts

Particulars:

namely, that at the time of the agreement:

(a) [DJ and the applicant] had an overdrawn balance in their combined accounts;

(b) [DJ and the applicant] owed over $900,000 on their combined loan accounts;

(c) numerous cheques linked to the main business account of [DJ and the applicant] had been dishonoured within the previous 12 months;

(d) [DJ and the applicant] and their related entities owed in excess $800,000 to [a named individual] and his related entities and also owed goats to other Malaysian traders;

(e) ['SAPL'] and ['DREPL'], corporations operated by [DJ and the applicant], were under contractual obligations to [a named Malaysian company] to purchase at least 10,000 breeding goats and use those goats to breed a further expected 30,000 goats over 3 years;

(f) that despite having been paid in excess [of] $1.7 million by [a named Malaysian company], [DJ and the applicant] breached that joint venture agreement by failing to purchase goats as agreed, breed goats as expected and export goats as required;

(g) after breaching the contract with [a named Malaysian company], [DJ and the applicant] de-registered Sandie Acres Pty Ltd and failed to return [a named Malaysian company's] calls;

and thereby induced [PL] to acquire a right under an arrangement the effect of which was to provide facilities for the participation by persons in profits alleged to be likely to arise from the disposal of property other than securities, namely goats.

Statement of Offence - Fraudulently induce persons to invest money contrary to s191(1)(b) of the Crimes Act 1958

14 It will be noticed that - separated into component parts - the charges allege that the applicant (and his brother):

• knowingly or recklessly made a misleading, false or deceptive promise (namely, that they would use PM's and PL's money to purchase 7,334 goats and deal with them in accordance with a written agreement)

• and dishonestly concealed material facts (which are particularised)

• and thereby induced either PL or PM (as the case may be)[7]

• to acquire a right under an arrangement (the effect of which was to provide facilities for the participation by persons in profits alleged to be likely to arise from the disposal of property other than securities, namely goats).

15 Put another way, the charges as formulated allege that the applicant induced PL and PM to acquire a right under an arrangement either by knowingly making a misleading, false or deceptive promise; or by recklessly making a misleading, false or deceptive promise; and by the dishonest concealment of material facts.

16 In the course of ruling on the applicant's argument that the charges are duplicitous, the judge found that

following Ginies,[[8]] as I am bound to do, a charge contrary to s 191(1)(b) creates a single offence. Accordingly, a count properly drawn brought under that paragraph, is not bad for patent duplicity.

17 Relying on Walsh,[9] the judge observed:[10]

In that case the Crown had alleged there were seven false representations made, two material facts concealed, and that someone had been bribed. The court held, at [319 [62]]:

'If all of this is read seriatim there were 10 particulars given of the dishonest means by which the trust was to be induced to invest, and so defrauded'.

In the judgment of the court reference was made to the English decision in Brown,[[11]] a case where the appellant was charged with fraudulently inducing investments contrary to the English Act. In that case the Crown relied on a number of separate statements to prove there was a dishonest inducement.

The English Court of Appeal held, quoted at [315 [53]] of Walsh, '... where a number of matters are specified in the charge as together constituting one ingredient in the offence, and any one of them is capable of doing so, then it is enough to establish the ingredient that any of them has been proved, but ... any such matter must be proved to the satisfaction of the whole jury'.

As the Victorian Court of Appeal put it, [315 [54]], 'the jury had to be unanimous about at least one, and the same one, of the representations'.

I find it is permissible for the prosecution to put its case on the basis the accused sought to induce the [complainants] to invest in their scheme by a false promise, and the concealment of a number of different material facts, without offending the rule against duplicity. However as [the prosecutor] conceded in order to convict the accused the jury must be agreed upon at least one act alleged.

In my opinion the present case falls into the second situation described by the Court of Appeal in Walsh, at [316-7 [57]]; that is,

'where one offence is charged ... but a number of discrete acts is relied upon as proof and any one of them would entitle the jury to convict. If those discrete acts go to the proof of any essential ingredient of the crime charged then the jury cannot convict unless they are agreed upon that act which in their opinion does constitute that essential ingredient'.

The court went on to state,

'In this type of case, much will depend "upon the precise nature of the charge, the nature of the prosecution's case and the defence and what the live issues will be at the conclusion of the evidence".'

In my view the indictment as presently pleaded requires amendment and the provision of particulars to remove any ambiguity.

On the prosecution case, as I discern it, the correct charge to be preferred is one contrary to paragraph (b) of s 191(1). As presently charged each count appears to conflate parts of paragraphs (b) and (c) of sub-s (1) of s 191; it requires amendment, and, because the prosecution brings its case on more than one basis, that is inducement by making a false promise and concealing material facts, and alleges a number of material facts were concealed, careful particulars are needed to be provided.

19 In this Court, counsel for the applicant submitted that the current version of the indictment - which is the fourth version - alleges that the applicant knowingly or recklessly made a false promise and dishonestly concealed a number of material facts to induce PL or PM to enter an agreement. Section 191 makes it an offence to make a false promise or dishonestly conceal material facts. Charging a person in a single charge with making a false promise and dishonestly concealing material facts renders the charge bad for duplicity.

20 The applicant's counsel submitted that the language of s 191(1), the intention of Parliament, the context of the section and the principles of statutory construction, all point to s 191 creating at least two separate offences: first, making a false promise; and, secondly, dishonestly concealing a material fact. Markus[12] supports the proposition that s 191 creates more than one offence. Nothing in Ginies - upon which the judge relied to determine that the charges were not duplicitous - dictates a different result, since the court was not asked to consider whether s 191 created more than one offence.

21 Moreover, so counsel submitted, in Grimwade[13] the relevant counts were not duplicitous because the falsity of the relevant promises was established by concealment and non-disclosure of material matters. The matters concealed established the falsity of the promises.[14] In the applicant's case, however, the material facts said to be dishonestly concealed are not particulars of the alleged false promise. Thus, the alleged promise is that the applicant falsely agreed to use PL's and PM's money to buy goats; fatten them; sell them for a profit; and then repay PL and PM with interest, knowing that they were not going to do this or being reckless as to whether they would do this or not. The material facts that are said to be concealed are the applicant's and his brother's overdrawn account; their large mortgages; numerous dishonoured cheques; their debt to various Malaysian entities; their obligation to purchase many goats for a Malaysian company; their failure to purchase these goats; their deregistration of the company responsible for these obligations; and their failure to return calls about the Malaysian deal.

22 Further, the applicant's counsel submitted that the indictment is bad for latent duplicity as any verdict would be uncertain. It is uncertain whether a jury could convict on finding that a false promise was made, or on finding that any of the particularised material facts were dishonestly concealed. This, so counsel argued, would possibly lead to eight bases for conviction.

23 Given that the indictment alleges that the applicant made a false promise and dishonestly concealed material facts, it is not clear whether a jury would have to be convinced beyond reasonable doubt of the making of a false promise and the dishonest concealing of a particular material fact. In this case the different material facts 'are separated in time, space and substance'. They are not, for example, different facts in one company prospectus or report. Counsel submitted that the considerations surrounding each particular in each charge will be different given the various transactions to which they relate. This 'is not a case of a continuing offence or of matters so closely connected in time and place that they can be charged in one offence'.

24 The respondent relied substantially on Ginies, in which the Court said of s 191(1):[15]

In our opinion, the section creates one offence only and states part of it in the alternative. We think this necessarily follows from the form in which the sub-section is cast and the language in which it is expressed.

25 Counsel also submitted that four out of the five charges in Ginies alleged involved particularisation of both false, misleading or deceptive statements, promises or forecasts and also dishonest concealment of material facts,[16] so that Ginies supports the proposition that the charges impugned in this case do not suffer from duplicity.

26 The respondent's counsel submitted that Grimwade - in which 19 counts against s 191, involving 19 investors, were 'particularised as involving numerous false statements and a separate list of dishonestly withheld material facts' - also supports this proposition (although it was acknowledged that no issue of duplicity was raised in that case for the court's consideration). It was also submitted that Markus was distinguishable from the present case.

27 As to the submission of latent duplicity, the respondent's counsel relied on Walsh. It was contended that multiple particulars of false representations and concealed facts can exist within one appropriately particularised charge without making the charge bad for latent duplicity.

28 Initially, in written contentions the respondent's counsel had acknowledged that multiple particulars of false representations and of concealed facts are conjoined in each charge by the conjunction 'and', but submitted that the prosecution is not 'tied to proving both a false representation and at least one dishonestly concealed material fact in order to make out the charge'. Hence, the prosecution case 'is put on the basis that whilst false promises and dishonestly concealed material facts are all alleged to have occurred, as a matter of law a jury is entitled to convict upon unanimous proof beyond reasonable doubt of the false promise alone, or a dishonestly concealed material fact alone'. In oral submissions, however, senior counsel for the respondent accepted that, on the basis of the indictment as presently drafted, the prosecution would need to prove both the knowing or reckless making of a misleading, false or deceptive promise and a dishonest concealment of facts.

29 In Ginies, the applicant had been convicted on two counts of conspiracy to defraud, and five counts of fraudulently inducing or attempting to induce investment contrary to s 191(1) of the Crimes Act 1958. It was alleged that the applicant and his co-accused had induced large sums of money to be invested in a company incorporated by the applicant by false and fraudulent statements, promises or forecasts, or reckless statements, promises or forecasts, and in some cases by the fraudulent concealment of a large debt owed by the company to the applicant. The company had little or no income, and went into liquidation, with the result that very substantial sums were lost by investors. Large amounts of the money invested went into the applicant's and co-accused's pockets.

30 Four of the counts against the applicant alleged that he induced or attempted to induce named individuals to enter into an agreement for acquiring or subscribing in securities, 'to wit, shares' in the company (counts 4 and 5), or to enter an agreement for lending money to or depositing money with the company (counts 6 and 7), by statements, promises or forecasts which he knew to be misleading, false or deceptive, or by the reckless making of statements, promises or forecasts which were misleading, false or deceptive; and also alleged that the inducement or attempted inducement had been brought about by the dishonest concealment of material facts (the fact relied upon being the concealment of the debt by the company to the applicant).[17]

31 A ground of appeal contended that several counts were bad for duplicity in that they alleged both inducement or attempted inducement. Dealing with that distinct contention, the Court said:[18]

Ground 21 was that counts 3 to 7 were bad for duplicity in that they alleged both inducement or attempted inducement. Such in fact was not the case with count 7 which alleged attempted inducement only. Counts 3 to 6, however, were framed in the terms of s 191(1) of the Crimes Act 1958 and such averment in the alternative is authorized by r 5 (1) of the Presentment Rules in the Sixth Schedule to the Act,[[19]] if the section enacts only one offence. It should be said that in relation to count 6 the learned judge directed the jury that the count alleged attempted inducement only in relation to [a named complainant]. The question, therefore, which goes to the heart of this submission, is whether s 191(1) creates one offence only or more than one offence. In our opinion, the section creates one offence only and states part of it in the alternative. We think this necessarily follows from the form in which the sub-section is cast and the language in which it is expressed. The present case is, we think, quite distinct from cases like R v Molloy [1921] 2 KB 364, or R v Disney [1933] 2 KB 138; [1933] All ER Rep 626, where the enactments in question created separate and distinct offences. Here, as was submitted by the learned prosecutor for the Queen, the conduct of a person accused under s 191(1) prohibited by that enactment remains the same whether the inducement has resulted or not. The only difference is that where an attempt only is disclosed by the evidence, inducement did not succeed. It is also pertinent to say, as the learned prosecutor submitted, that if inducement only is charged under this section it would always be open to the jury in any event to return a verdict of an attempt if it was not satisfied that actual inducement had resulted.

32 Ginies thus stands for the proposition that a charge that alleges both that an accused induced or attempted to induce a person to enter into a relevant agreement is not bad for duplicity since, by using the expression 'induces or attempts to induce', s 191(1) creates a single offence which may be committed in the alternative. It does not appear, however, that the Court distinctly was asked to consider whether it was proper to plead in a single charge the inducement (or attempted inducement) to enter into a relevant agreement by a misleading, false or deceptive statement, promise or forecast - made either knowingly or recklessly _ - _ and by the dishonest concealment of material facts.

33 Markus involved (among others) charges of conniving at a corporation inducing investment of money by false representations, contrary to s 13(1)(b) of the Prevention of Fraud (Investments) Act 1958 (UK).[20] The House of Lords was called upon to consider whether on the true construction of s 13(1)(b) the offence of fraudulently inducing a person to offer to take part in an arrangement with respect to property other than securities is an offence separate and distinct from the offence under the same paragraph of fraudulently inducing a person to take part in an arrangement with respect to such property, so that if the facts disclose the former offence it is not open to the prosecution to charge the latter offence by reason of the subsequent acceptance of the victim's offer. Viscount Dilhorne was of the view that a number of offences were created. He said:[21]

In my opinion section 13(1)(b) creates a number of separate offences. In each case it is necessary to prove that by a false statement, etc., a person was induced to do certain acts. If he was induced to enter into an agreement of the kind described that is one offence; if he was induced to offer to enter into such an agreement that is a separate and distinct offence. Similarly, if he was induced to enter into an arrangement of the sort described, it is one offence and if he was induced to offer to enter into such an arrangement, it is another.

Section 13 ... requires one to consider what it was that the victim was induced to do. ...

In my opinion not only are the offences created by section 13 separate and distinct but they are also mutually exclusive. A man cannot at one and the same time enter into an agreement or arrangement and offer to enter into one. ...

34 Lord Diplock (with whom Lord Wilberforce, Lord Kilbrandon and Lord Salmon agreed) said:[23]

This is a short point of construction. The offence of inducing another person to take part in any arrangements of the kind described in section 13(1)(b) is clearly a separate and distinct offence from that of inducing another person to offer to take part in any such arrangements. The use of the conjunction 'or' shows that they are alternative offences; but not that to have committed one precludes the possibility of subsequently committing the other. In many cases the actual taking part in the arrangements by the victim of the fraudulent inducement will have been preceded by an offer by him to take part and will have resulted from an acceptance of that offer. The question posed by the Court of Appeal is whether, in such a case, where the person charged is the person who fraudulently induced the victim to make the offer; this prevents his being charged with fraudulently inducing the victim to take part in the arrangements despite the fact that this was both the actual and the intended consequence of the inducement. When stated in this form the question itself invites the answer 'No'. No plausible reason has been suggested for ascribing to the words of the statute a meaning which would have so absurd a result. In statutes which make acts done with the intention of achieving a particular result punishable as crimes it is common practice to provide that there shall be alternative offences depending on the stage to which the offender has managed to get towards achieving that result.

I do not find it credible that Parliament, by doing this, should have intended that an offender who has actually succeeded in achieving the proscribed result should not be charged with that offence because at some intermediate stage he had done something which, if he had been stopped then, would have constituted one of the alternative offences.

35 Recently, in Lugo, the rule against duplicity was summarised as follows:[24]

Since the seventeenth century, it has been a fundamental rule that no one count on an indictment may charge an accused person with committing two or more separate offences.[25] That basic rule is reflected in the provisions of the Criminal Procedure Act 2009. Section 159(3)(c) of the Act provides that an indictment must comply with Schedule 1. In turn, cl 5(2) of Schedule 1 makes it clear that, save for a course of conduct charge[26] ... the particulars of each offence charged on an indictment must be separately set out:[27]

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

Where more than one offence is joined in a single charge on an indictment the charge is bad for duplicity.[28] The charge is not a nullity, however, and may be cured by the prosecution making an election on which offence it is sought to proceed, and an amendment being made to strike out the other offence (or offences).[29]

36 And in Walsh the Court observed:[30]

As we apprehend it, a count is bad for duplicity if it charges more than one offence; on the other hand, if the count charges but one offence and evidence is led of more than one instance of such offending, then the verdict, if against the accused, will be uncertain. This last is sometimes called latent uncertainty because it depends, not so much upon the terms of the count, as upon the case sought to be made by the Crown. Suffice it to refer in this connection to Johnson v Miller[31] and Trotter.[32]

37 Clause 3 of Schedule 1 of the CPA provides the manner in which a statutory offence may be set out in an indictment. It proceeds on the assumption that a statutory provision creates a single offence, and makes plain that if the statutory offence may be committed in alternative ways, a charge may state the commission of the offence in the alternative without infringing the rule against duplicity. Clause 3 is in the following terms:[33]

3 Statutory offence

(1) In this clause -

statutory offence means an offence created by an Act or subordinate instrument, or by a provision of an Act or subordinate instrument.

(2) For the purposes of clause 1(a), a statement of a statutory offence is sufficient if it -

(a) identifies the provision creating the offence; and

(b) describes the offence in the words of the provision creating it, or in similar words.

(3) If a statutory offence states -

(a) the offence to be committed in alternative ways; or

(b) any element or part of the offence in the alternative -

a charge may state the commission of the offence or the element or part of the offence in the alternative.

38 As we have said, the applicant's counsel submitted that s 191(1) created more than one offence, so that cl 3 of Schedule 1 of the CPA could not justify the form of the charges in the present indictment. It is thus necessary to determine whether s 191(1) does indeed create more than one offence.

39 Section 191 is, it must be said, unhappily drafted. As the present case exemplifies, the structure of the section, and the obscurity of its language, create real difficulties in its interpretation and application. To underscore that this is so, a useful comparison may be made between the terms of s 191 and those of s 318(1) of the Crimes Act 1958. Thus, s 318(1) provides that any person 'who by the culpable driving of a motor vehicle causes the death of another person' is guilty of an offence. By virtue of s 318(2), 'a person drives a motor vehicle culpably if he drives the motor vehicle', (a) recklessly (as defined); or (b) negligently (as defined); or (c) whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the motor vehicle; or (d) whilst under the influence of a drug to such an extent as to be incapable of having proper control of the motor vehicle. And importantly, s 318(3) provides that an indictment (formerly presentment) 'for an indictable offence under this section shall specify which form of culpability within the meaning of subsection (2) is charged but evidence of the whole of the circumstances shall be admissible on the trial on the indictment'. In these circumstances, the Court held in Horvath[34] that s 318 creates one offence which may take any of the four specified forms of culpability.

40 The scheme of s 318 is clear. Subsection (1) creates a single offence of culpable driving; the four forms of culpable driving - connected by the disjunctive or - being set out in sub-s (2); and sub-s (3) requiring the particular form of culpability to be specified in the indictment.[35] By way of contrast, s 191 - headed Fraudulently inducing persons to invest money[36] - is structured very differently. Its terms are, to say the least, largely impenetrable.

41 Despite the obscurity of the language used in s 191(1), however, and notwithstanding that the earlier cited observations of Viscount Dilhorne and Lord Diplock in Markus[37] are not without a deal of attraction, in light of Ginies, we consider that this Court is bound to find that s 191(1) creates a single offence, [38] albeit that the offence will be capable of commission in a number of different ways. Indeed, it is clear from the wording of the section that a charge under s 191 may, depending on the circumstances, admit of a number of different permutations.

42 First, there are three proscribed ways in which a person may induce or attempt to induce another to do certain specified things. At the risk of repetition, the gist of s 191(1) is inducing or attempting to induce another person to do one or other of the things in paragraphs (a), (b) or (c) of sub-s (1) 'by any statement promise or forecast which he knows to be misleading false or deceptive or by any dishonest concealment of material facts or by the reckless making of any statement promise or forecast which is misleading false or deceptive'. Giving the words of sub-s (1) their ordinary natural meaning, it is plain that or is used disjunctively.[39] Hence, as we have indicated, a person relevantly may induce or attempt to induce another, first, by any statement promise or forecast which he or she knows to be misleading false or deceptive; or secondly, by the reckless making of any statement promise or forecast which is misleading false or deceptive; or thirdly, by any dishonest concealment of material facts.

43 Secondly, not only does s 191(1) provide that a person relevantly may induce or attempt to induce another in one of three ways, but paragraphs (a), (b) and (c) of sub-s (1) provide that the inducement or attempted inducement may be to do one or more of five separate things:

• first, to enter into or offer to enter into an agreement for or with a view to acquiring disposing of subscribing in or underwriting securities (sub-s (1)(a)(i)); or

• secondly, to enter into or offer to enter into an agreement for or with a view to lending or depositing money to or with any corporation (sub-s (1)(a)(i)); or

• thirdly, to enter into or offer to enter into any agreement the purpose or pretended purpose of which is to secure a profit to any of the parties from the yield of securities or by reference to fluctuations in the value of securities (sub-s (1)(a)(ii)); or

• fourthly, to acquire or offer to acquire any right or interest under any arrangement the purpose or effect or pretended purpose or effect of which is to provide facilities for the participation by persons in profits or income alleged to arise or to be likely to arise from the acquisition holding management or disposal of any property other than securities (sub-s (1)(b)); or

• fifthly, to enter into or offer to enter into an agreement the purpose or pretended purpose of which is to secure a profit to any of the parties by reference to fluctuations in the value of any property other than securities (sub-s (1)(c)).

44 Noting those permutations, it is convenient at this juncture to return to the prosecution case. The Prosecution Opening alleges that PL and PM invested a total of $395,000 with the applicant and his brother in four agreements, between November 2009 and February 2010. In return for this investment money, the brothers agreed to purchase 26,335 goats at $15 per head and then sell them for profit. By the terms of the first agreement, dated 16 November 2009, PL and PM would invest $110,000 in the brothers' business, which would be spent on the purchase of 7,334 goats at $15 a head. The return on that investment was indicated as $10 per head, with a bonus of $2.50 after sale. The terms of the agreement were that the principal, the return and the bonus would be repaid within three months of the date of the agreement. PL's and PM's money was to be used solely for the purchase of goats. By the terms of the second agreement, on 6 December 2009, PL and PM would invest $110,000 in the brothers' business, which would be spent on the purchase of 7,334 goats at $15 a head. The return on that investment was indicated as $10 per head with a bonus of $2.50 after sale. The terms of the agreement were that the principal, the return and the bonus would be repaid within three months of the date of the agreement. PL and PM were told their money would be used to pay for the goats as specified in the invoice. By the terms of the third agreement, dated 7 January 2010, PL and PM would invest $110,000 in the brothers' business, which would be spent on the purchase of 7,334 goats at $15 a head. The return on that investment was indicated as $10 per head with a bonus of $2.50 after sale. The terms of the agreement were that the principal, the return and the bonus would be repaid within three months of the date of the agreement. PL and PM were told their money would be used to pay for the goats as specified in the invoice. The terms of the fourth agreement, dated 4 February 2010, were that $65,000 would be invested in the brothers' businesses in order to purchase an unspecified number of goats. This investment was subject to the 'similar terms and conditions' as the previous three agreements. PM was told again that the funds would be used to pay for the goats as specified in the invoice.

45 Given the manner in which the prosecution case is put - the essence of the case being that PL and PM gave the applicant and DJ money to buy property (goats), which would then be on-sold at a profit - the only limb of s 191(1) which might be attracted by the facts alleged is paragraph (b); that is, and inducement 'to acquire ... any right ... under any arrangement the ... effect of which is to provide facilities for the participation by persons in profits ... alleged to arise ... from the ... disposal of any property other than securities'. Plainly, paragraph (a), which concerns agreements relating generally to dealings in securities (shares or debentures or similar)[40] or lending money or depositing money with a corporation, could not be applicable to the alleged facts. And it seems doubtful that paragraph (c) - 'to enter into or offer to enter into an agreement the purpose or pretended purpose of which is to secure a profit to any of the parties by reference to fluctuations in the value of any property other than securities - could apply.

46 Once more using charge 1 as a specimen, it is alleged that the applicant:

• knowingly or recklessly made a misleading, false or deceptive promise (but not 'statement ... or forecast') that they would use the money [of [PM and PL]] to purchase 7,334 goats and deal with them in accordance with a written agreement; and

• dishonestly concealed material facts (each of paragraphs (a) to (e) of the particulars relating to the applicant's and DJ's financial position or breach of contractual arrangement); and

• thereby induced [PL] to acquire a right under an arrangement the effect of which was to provide facilities for the participation by persons in profits alleged to be likely to arise from the disposal of property other than securities, namely goats.

47 Thus, by charge 1 it is alleged that PL was induced - no attempted inducement is alleged - to acquire a right (but not 'interest') under an arrangement the effect (but not 'the purpose ... or pretended purpose or effect') of which was to provide facilities for the participation by persons in profits (but not 'income') alleged to be likely to arise (but not 'to arise') from the disposal (but not 'the acquisition holding management') of property other than securities, namely goats, so much seeming to fit squarely with paragraph (b) of s 191(1). The misleading, false or deceptive 'promise' was that the applicant and his brother 'would use the money of [PM and PL] to purchase 7,334 goats and deal with them in accordance with a written agreement', the reference to an agreement being apt to invoke the criteria in paragraph (c) of s 191(1). And as we have indicated, the charge then proceeds to allege also ('and') that the applicant and his brother 'dishonestly concealed material facts' (which are particularised). That is, it alleges that the offence was a composite of both knowing or reckless falsity, and of dishonest concealment. Further, as the subjects of the falsity and concealment are quite distinct (and not two sides of the same coin), the proof of the charge (as currently alleged) might require proof of each such subject.

48 In light of the above, although the charges on the indictment may not suffer from what the applicant described as 'patent duplicity', they are unclear in their present form. What the prosecution alleges is uncertain, and the task of a judge charging a jury on their elements would be virtually impossible. Any such directions would be very confusing and unhelpful for the jury. Unsurprisingly, therefore, the judge has recognised that the charges require amendment. It should be left to him to determine whether any proposed amendments will cure them.

49 Putting the charges unto an acceptable form should not be a particularly difficult drafting exercise. It should be easy enough to formulate a charge that alleges that (on a relevant date) the applicant (and DJ):

(a) knowingly made a misleading, false or deceptive promise; or

(b) recklessly made a misleading, false or deceptive promise; or

and thereby induced PL or PM (as the case requires) to acquire a right under an arrangement the effect of which was to provide facilities for the participation by PL and PM in profits alleged to be likely to arise from the disposal of property other than securities (goats). Separate particulars of the misleading, false or deceptive promise (or promises), and of the dishonestly concealed material facts, could then be subjoined.

50 In directing the jury on any charge thus reformulated, the judge will be required to instruct the jury (at a minimum) that the prosecution needed to prove to the criminal standard that:

(b) the promise was misleading, false or deceptive;

(i) either knew it was misleading false or deceptive, or

(ii) was reckless as to whether it was misleading, false or deceptive;

(d) that the applicant concealed material facts and did so dishonestly; and

(i) the misleading, false or deceptive promise (made knowingly or recklessly), or

induced PL or PM to acquire a right under the relevant arrangement alleged.

51 The judge will need to direct the jury that they must be satisfied unanimously as to the act that caused the inducement - whether the misleading, false or deceptive promise made knowingly, the misleading, false or deceptive promise made recklessly, or of the dishonest concealment of facts. Moreover, on the assumption that there is more than one particular of the alleged misleading, false or deceptive promise, or of the material facts dishonestly concealed, the judge will also need to direct the jury that they must be satisfied unanimously on one or more of the alleged particulars (applicable as the case may be).[41]

52 Directions requiring the jury's unanimity as to the act that induced PL and PM to do as they did, and as to at least one particular of the misleading, false or deceptive promise, or of the material facts dishonestly concealed (as applicable), are required by authority.[42] Proper directions on these topics should assuage concerns that the jury's verdicts will be infected by latent duplicity.

53 The application for review of the refusal to certify, and the application to appeal against the interlocutory decision, should be refused.

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

[2] They are jointly charged with six charges (charges 1 to 6), and DJ individually faces a seventh charge (charge 7).

[7] PL for charges 1, 3 and 5; and PM for charges 2, 4 and 6.

[8] R v Ginies [1972] VicRp 43; [1972] VR 394 (Winneke CJ, Little and Barber JJ) ('Ginies').

[9] R v Walsh [2002] VSCA 98; (2002) 131 A Crim R 299 (Ormiston, Phillips and Buchanan JJA) ('Walsh').

[10] Emphasis added to this and following passages.

[11] Brown v The Queen (1984) 79 Cr App Rep 115.

[12] Secretary of State for Trade v Markus [1976] AC 35 ('Markus').

[13] R v Wilson and Grimwade [1995] VicRp 11; [1995] 1 VR 163 ('Grimwade').

[14] In Grimwade, the Court described the formulation of the charges as follows (at 165):

The first count on the presentment is sufficiently representative of all for the purposes of this narrative. It alleges that: Jon Dean Wilson and Andrew Sheppard Grimwade at Melbourne in the said State between the month of September 1981 and the month of February 1982 together with Trevor Burton Huttley induced or attempted to induce Prudential Assurance Co Ltd to enter into an agreement to acquire or subscribe to a unit in the Jet Corporation of Australia Unit Trust by the making of statements promises or forecasts which were to his knowledge misleading false or deceptive or in which he dishonestly concealed material facts or which being misleading false or deceptive were made recklessly.

[19] Rule 5(1) provided:

(1) Where an enactment constituting an offence states the offence to be the doing or the omission to do any one of any different acts in the alternative or the doing or the omission to do any act in any one of any different capacities or with any one of any different intentions or states any part of the offence in the alternative the acts omissions capacities or intentions or other matters stated in the alternative in the enactment may be stated in the alternative in the count charging the offence.

[20] Section 13(1) bore some similarity to s 191(1) of the Crimes Act 1958. It provided:

(1) Any person who, by any statement, promise or forecast which he knows to be misleading, false or deceptive, or by any dishonest concealment of material facts, or by the reckless making (dishonestly or otherwise) of any statement, promise or forecast which is misleading, false or deceptive, induces or attempts to induce another person -

(i) any agreement, for, or with a view to, acquiring, disposing of, subscribing for or underwriting securities ... or

(ii) any agreement the purpose or pretended purpose of which is to secure a profit to any of the parties from the yield of securities or by reference to fluctuations in the value of securities, or

(b) to take part or offer to take part in any arrangements with respect to property other than securities, being arrangements the purpose or effect, or pretended purpose or effect, of which is to enable persons taking part in the arrangements (whether by becoming owners of the property or any part of the property or otherwise) to participate in or, receive profits, or income alleged to arise or to be likely to arise from the acquisition, holding, management or disposal of such property, or sums to be paid or alleged to be likely to be paid out of such profits or income ...

[24] Lugo (a pseudonym) v The Queen [2020] VSCA 75, [78]-[79] (Priest JA).

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

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

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

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

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

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

[30] Walsh, 309 [40]. See also Senese v The Queen [2004] VSCA 136, [16].

[31] [1937] HCA 77; (1937) 59 CLR 467.

[32] (1982) 7 A Crim R 8.

[34] R v Horvath [1972] VicRp 60; [1972] VR 533, 537 (Winneke CJ, Little and Stephen, JJ) ('Horvath').

[35] Although s 318 creates a single offence which may be established on four specified bases, where an indictment alleges more than one of those bases - for example, negligence and driving under the influence of alcohol to the requisite extent - a verdict of guilty of culpable driving can only properly be returned if the jury is unanimous on one of the statutorily specified bases. See R v Beach (1994) 75 A Crim R 447 (Phillips CJ, Vincent and Teague JJ).

[36] The heading is not part of the Act. See Interpretation of Legislation Act 1984, s 36(2A).

[37] See [33]-[34] above.

[38] The Court could only depart from Ginies if convinced that it was plainly wrong. See AVCO Financial Services Ltd v Abschinski [1994] VicRp 76; [1994] 2 VR 659; RJE v Secretary to the Department of Justice [2008] VSCA 265; (2008) 21 VR 526; Commissioner of State Revenue v Challenger Listed Investments Ltd [2011] VSCA 272; (2011) 34 VR 617; Director of Public Prosecutions v Patrick Stevedores Holdings Pty Ltd [2012] VSCA 300; (2012) 41 VR 81.

[39] See Jennings v Pryce (1984) 30 NTR 39, 42. Compare R v Oakes [1959] 2 QBD 350, 356-7.

[40] See the definition of securities in s 191(3).

[41] Without providing a complete list of topics, directions will also need to be given (among other things) on the meaning of recklessly and dishonestly.

[42] See Walsh; Beach; Magnus v The Queen [2013] VSCA 163; (2013) 41 VR 612; Ardrey v Western Australia (2016) 261 A Crim R 251.