R v Goodwin [2009] ACTSC 111

R v Goodwin [2009] ACTSC 111 - ACTSC 2009 case summary — Zoe

[115]

The rule against duplicitous counts in an indictment originated as early as the seventeenth century. See, e.g. Smith v Mall [1676] EngR 492; (1623) 2 Rolle 263 [81 ER 788]; R v Stocker (1696) 5 Mod 137 [87 ER 568]. It may be, as suggested by Salhany in 'Duplicity - Is the Rule Still Necessary?', Criminal Law Quarterly, vol 6 (1963) 205, at pp 206-207, that the rule grew out of the strict formalities associated with criminal pleadings at a time when the difference between misdemeanour and felony was the difference between life and death. However, the rule against duplicitous counts has, for a very long time, rested on other considerations. One important consideration is the orderly administration of criminal justice. There are a number of aspects to this consideration: a court must know what charge it is entertaining in order to ensure that evidence is properly admitted, and in order to instruct the jury properly as to the law to be applied; in the event of conviction, a court must know the offence for which the defendant is to be punished; and the record must show of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict. See, generally, R v Sadler (1787) 2 Chit 519; R v Hollond [1794] EngR 2213; (1794) 5 TR 607, at p 623 [1794] EngR 2213; [101 ER 340, at p 348], per Lord Kenyon C.J. See, as to the need for distinct consideration in relation to penalty, R v Stocker, R v Sadler, R v Morley [1827] EngR 282; (1827) 1 Y & J 221 [148 ER 653]; Cotterill v Lempriere (1890) 24 QBD 634 at p. 637, per Lord Coleridge CJ. See, as to the availability of a plea in bar, R v Robe (1735) 2 Str 999 [93 ER 993]; Davy v Baker [1769] EngR 69; (1769) 4 Burr 2471 [98 ER 295]; R v Wells; Ex parte Clifford (1904) 91 LT 98; R v Surrey Justices; Ex parte Witherick (1932) 1 KB 450.

The rule against duplicitous counts has also long rested upon a basic consideration of fairness, namely, that an accused should know what case he or she has to meet. See, e.g., R v Robe, (1735) 2 STR at p 999 [93 ER at p 994] where it was said 'this is so general a charge, that it is impossible any man can prepare to defend himself on this prosecution ...' See also R v Hollond (1794) 5 TR at p 623 [101 ER at p 348] per Lord Kenyon CJ; R v North (1825) 6 Dowl & Ry 143, at p 146 [28 RR 538, at p 541]; R v Morley (1827) 1 Y & J at pp 224-225 [148 ER at p 654]; and Cotterill v Lempriere (1890) 24 QBD at p 639 per Lord Esher M R. Of course, the degree of unfairness or prejudice involved will vary from case to case, and it may be, as suggested by Professor Glanville Williams in 'The Count System and the Duplicity Rule', [1966] Criminal Law Review 255, at p 264, that on occasions the uncertainty is not 'such as to disable the defendant from meeting the charge'.

[133]

In principle, it is, it seems to me, legitimate to charge, in a single count, one activity, even though that activity may involve more than one act, each of which may amount to an offence. There is ample authority for this proposition. I need refer only to Jemmison v Priddle [1972] 1 QB 489, R v Wilson (1979) 69 Cr App R 83 and the unreported decision of this Court in R v Smale, 13 November 1987, and compare those cases with the decision in Ware v Fox; Fox v Dingley [1967] 1 WLR 379; sub nom Fox v Dingley; Ware v Fox [1967] 1 All ER 100.

Obviously a great deal depends upon the nature of the offence which the Crown seeks to prove. The latent defect is manifested, or made patent, by the evidence, and accordingly depends upon the charge which the material is intended to support.

In the present case, the Drug Misuse and Trafficking Act 1985 in s 3(1) defines 'supply' in very broad terms. The word and the concepts which the word by definition is capable of conveying, have a very long arm indeed. I need only indicate that 'supply' includes selling and distributing, sending, forwarding, delivering and authorising, and directing, causing, suffering or permitting any of the acts previously defined, including supply, selling and distribution.

This is therefore a very different case from S v The Queen [1989] HCA 66; (1989) 168 CLR 266, upon which the appellant understandably enough sought to place considerable reliance.

...

Apart from questions of the admissibility of evidence of similar facts, it is not open to prove the occurrence of a sexual encounter on Thursday by proving that sexual intercourse took place on Monday, Tuesday and Wednesday. Four acts of incest remain exactly that, namely four acts of incest. Aggregating them produces nothing new. But it is possible to prove supply pursuant to the extended definition in s 3 of the Act during a period say of a week, by establishing the occurrence of separate acts on particular days, some, but perhaps not all, of which will themselves constitute the offence of supply.

That in my view is this case. Accordingly I do not think that anything said in S v The Queen tends to invalidate the indictment. However, what also emerges from S v The Queen, and lies at the heart of this kind of problem, is what Toohey J observed (at 281) namely: 'The objection in cases such as the present one is that the accused does not know with any certainty the charge he has to meet.' This is similar to other observations of a similar kind which have been made in other cases; eg, in Director of Public Prosecutions v Merriman [1973] AC 584 at 592.

Hence, Mr MacGregor put to us very strongly that the present was a case of unfairness, and amounted to a miscarriage because the extended definition of 'supply' was never analysed for the jury's benefit by indicating which elements of it the Crown relied upon or which pieces of evidence would support each element. That is the submission, and it deserves careful consideration.

However, having given it that consideration it seems to me that it fails when one examines exactly how the present case was conducted. In the first place, the Crown in the opening made, I think, very clear precisely what it was that would be alleged against the appellant.

...

In the summing-up the learned judge opened by defining supply, that is to say by reading the definition from the Act which he did again later on. Then, coming to the case against the appellant, he made it plain that Locchi was what was described as the common link between the various people whose activities had been established, that all of them were part of a team which the appellant directed which was engaged in the business of supplying heroin and amphetamine.

...

It is of course clear that when one is dealing with arguments of this type, it is necessary to look carefully at the nature of the case and the way in which it was conducted, in order to ascertain whether there was a miscarriage of justice at the trial, requiring the attention of this Court.

[154]

It has been held in England that a single act of ill-treatment can constitute the offence of ill-treating a patient contrary to the Mental Health Act 1959 (UK), s 126: R v Holmes [1979] Crim LR 52. I see no reason why a single act of ill-treatment should not be capable of constituting the crime created by our s 178(1). However that does not preclude a conclusion that a course of conduct over an extended period may also constitute a single crime under that provision.

Having regard to the fact that ill-treatment and neglect can occur over extended periods, and can involve a variety of acts and omissions, and having regard to the purposes or objects of s 178(1), I concluded that a course of conduct over a period of days, weeks, months or years can constitute a single crime for the purposes of that subsection. It follows that the indictment is not formally defective.

Since reaching that conclusion, I have become aware of authority on this point in New Zealand. The Crimes Act 1961 (NZ), s 195, provides as follows:

Everyone is liable to imprisonment for a term not exceeding 5 years who, having the custody, control, or charge of any child under the age of 16 years, wilfully ill-treats or neglects the child, or wilfully causes or permits the child to be ill-treated, in a manner likely to cause him unnecessary suffering, actual bodily harm, injury to health, or any mental disorder or disability.

In R v McFarlane [2001] NZCA 155, the New Zealand Court of Appeal held that an indictment charging the appellant with a single count of ill-treatment 'between 1 January 1997 and 23 July 1999' was not defective. At [7], Doogue J, delivering the judgment of the Court, said:

Upon the Crown's evidence there were numerous incidents of unwarranted use of force and assaults at times and circumstances beyond the ability of a young victim clearly to recall. The fact that initial charges were of individual assaults does not affect that. We accept the submissions for the Crown that the evidence upon which the Crown relied amounted to a course of conduct entirely appropriate for a charge under s 195.

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Judgment (203 paragraphs)

R v Goodwin [2009] ACTSC 111 (3 September 2009)

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Legislation Cited (24)

Cases Cited (17)