PRACTICE AND PROCEDURE - case statements - nature, purpose and genesis.

Supreme Court Act 1933 (ACT), s 37S

Crimes Act 1900 (ACT), s 287

Social Security Act 1991 (Cth), s 1347

Crimes Act 1914 (Cth), s 73(3)

Trade Practices Act 1974 (Cth)

Court Procedures Rules 2006 (ACT), r 4733

Standing Committee of Attorneys-General, Working Group on Criminal Trial Procedure, Report (September 1999)

Conference of Directors of Public Prosecutions and National Legal Aid, Best Practice Model for the Determination of Indictable Charges (August 1998)

Standing Committee of Attorneys-General, Deliberative Forum on Criminal Trial Reform, Report (June 2000)

Standing Committee of Attorneys-General, Model Criminal Code Officers Committee, Report - Model Criminal Code, 'Theft Fraud Bribery and Related Offences' (1995)

Walsh v Tattersall (1996) 188 CLR 77

R v Locchi (1991) 22 NSWLR 309

Hamzy (1994) 74 A Crim R 341

Director of Public Prosecutions v Merriman [1973] AC 584

Jackwitz v The Queen [2006] NSWCCA 419

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

Hyde v Mason [2005] QCA 79; [2005] 2 Qd R 159

Rixon v Thompson [2009] VSCA 84

Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373; (2006) 165 A Crim R 151

Taylor v The Queen [1997] TASSC 5; (1997) 6 Tas R 310

Greenfield (1973) 57 Cr App R 849

Wilson (1979) 69 Cr App R 83

Johnson v Miller [1937] HCA 77; (1938) 59 CLR 467

Ex parte Graham; Re Dowling & Anor (1968) 88 WN (Pt 1) (NSW) 270

R v Yankovski [2007] VSCA 259; (2007) 178 A Crim R 495

Walsh [2002] VSCA 98; (2002) 131 A Crim R 299

R v Whitington [2006] NTCCA 4; (2006) 197 FLR 103

R v Heaney [2009] VSCA 74

Stanton v Abernathy (No 2) (1990) 19 NSWLR 656

Giretti (1986) 24 A Crim R 112

Jacobs [1997] QCA 114; (1997) 94 A Crim R 15

F (1996) 90 A Crim R 356

Dendy v Brinkworth and Anor [2006] SASC 179; (2006) 97 SASR 407

R v Moussad [1999] NSWCCA 337; (1999) 152 FLR 373

Tuck [1999] TASSC 135; (1999) 117 A Crim R 305

R v Ferguson and Anor [2005] VSC 527; (2005) 165 A Crim R 337

Tasmania v M [2008] TASSC 21; (2008) 184 A Crim R 404

Gorman v The King (1944) 45 WALR 80

Williams v The Queen (1979) 23 ALR 369

McDonald v Bojkovic [1987] VicRp 33; [1987] VR 387

Kim [1993] TASSC 19; (1993) 65 A Crim R 278

R v Petroulias (No 36) [2008] NSWSC 626

R v Bal [2009] ACTSC 45

Trade Practices Commission v Nicholas Enterprises Pty Ltd & Ors (No 2) [1979] FCA 51; (1979) 40 FLR 83

Re British Basic Slag Ltd's Agreements [1963] 1 WLR 727

Federal Commissioner of Taxation v Lutovi Investments Pty Ltd [1978] HCA 55; (1978) 140 CLR 434

L Grollo & Co Pty Ltd v Nu-Statt Decorating Pty Ltd (in Liq) and Ors [1978] FCA 33; (1978) 34 FLR 81

1. The prosecution have leave to amend the indictment dated 1 August 2006 to omit the words "and other services" and, if advised, to add another count.

2. The prosecution be given leave to file an amended indictment within 14 days.

3. If the prosecution in the amended indictment charge offences under s 142.1 of the Criminal Code Act 1995 (Cth), that the prosecution provide particulars of the benefit alleged to have been provided and of the dishonesty alleged in respect of each count.

1. The accused in this matter, Daniel John Goodwin, is the subject of an indictment containing one count under s 142.1(1) of the Criminal Code Act 1995 (Cth), namely that Mr Goodwin:

at Canberra in the Australian Capital Territory between about 1 October 2002 and 27 April 2004, dishonestly provided a benefit, namely discounted paint and other services, to another person, namely Rodney William Bradley, who was a Commonwealth public official, namely Co-ordinator of the Australian Federal Police (AFP) Building and Accommodation Team, and the receipt of the benefit would have tended to influence the said public official in the exercise of the official's duties as a Commonwealth public official.

2. The lawyers for Mr Goodwin, in correspondence, asserted that the indictment was defective. It sought particulars. The prosecution, in response, referred to the case statement. The lawyers for Mr Goodwin then claimed that the indictment was defective.

3. On 2 October 2008, Mr Goodwin, through his lawyers, issued an application in proceeding seeking an order that the Crown file an amended indictment within fourteen days.

4. Although the amended case statement (as to which, see below) is extensive, running to some fifteen pages, an outline of facts for this decision can be stated reasonably briefly. It is, of course, accepted that these are only allegations at this stage and not facts found by a court.

5. Mr Goodwin is what is described as "the operator" of a company, Pyotorn Pty Ltd, which trades under the business name "G & A Painters". By operator, I assume it is meant that Mr Goodwin is a director (perhaps the only director) and chief executive of the company.

6. In 1994, Mr Goodwin met Rodney William Bradley, a Commonwealth official, namely the Co-ordinator of the Australian Federal Police (AFP) Building and Accommodation Team. In that role, Mr Bradley was tasked to manage all building and accommodation work for the AFP and, to do so, he possessed financial delegations permitting him to approve expenditure of up to $100,000 on such work.

7. Mr Goodwin and Mr Bradley became friends; they went fishing together and Mr Bradley stayed in the Mr Goodwin's caravan at the South Coast.

8. In 1999, the AFP outsourced its project management and maintenance services and, as a result, United KFPW undertook responsibility for employing sub-contractors to carry out repairs and maintenance to AFP properties. In turn, United KFPW employed Spotless Services Ltd to perform the majority of this work.

9. From 4 August 1999, Manteena Pty Ltd, a project management and building company, was engaged by the AFP as the preferred supplier of project and construction work for its capital building projects. Project manager for Manteena Pty Ltd, Alex Luddington, would compile a short list of tenderers for specific jobs and make a written recommendation to the AFP seeking endorsement. The list would be approved or not and then Mr Luddington would engage with suppliers on the approved list.

10. At Mr Bradley's request, Mr Luddington included G & A Painters on the short list in 2000, although he had not previously been aware of the business.

11. Between March 2000 and April 2004, G & A Painters performed a considerable number of contract painting work for the AFP, in the order of $500,000.

12. It appears that G & A Painters had never been engaged by Spotless Services Ltd and all engagements were directly instigated by Mr Bradley. G & A Painters were, however, contracted by Manteena Pty Ltd for AFP and non-AFP business, but were never engaged directly by the AFP for new capital works within the scope of the AFP contract with Manteena Pty Ltd.

13. Mr Goodwin conducted a trade account under the name "G & A Partners in Painting" for the purchase of painting supplies at two outlets in Canberra. G & A Painters was authorised to operate on the account. These accounts permitted the purchase of paint at a discounted (trade) price.

14. In October and November 2002, Mr Bradley purchased paint on six occasions on these accounts and received a total discount of $866.07. His wife also purchased paint in March and April 2004, receiving a total discount of $88.80. A further purchase by Mr Allan Sandeman, who was the best man at Mr Bradley's wedding, was made in February 2004, where a discount of $77.05 was received.

15. Between 2001 and 2003, a business named NJR Developments carried out some residential developments in Queanbeyan. Mr Bradley was the sole director and shareholder of Bradley Developments Pty Ltd, one of the proprietors of the business. NJR Developments retained G & A Painters for one of those projects. They were personally engaged by Mr Bradley outside the regular arrangements. Their price estimate was said to be 5% to 10% below market price and to be "doing Mr Bradley a favour".

16. The work that G & A Painters undertook for the AFP was relied on by the prosecution. On two projects for the AFP, Mr Bradley overrode the recommendations of Mr Luddington and awarded contracts to G & A Painters. On another project, G & A Painters lodged a quote apparently prior to receiving a request for a quote which was in similar terms to the quote. On a further project lasting some four years there were questions about the need for the project and Mr Bradley's preference of G & A Painters for it. In another contract, Mr Bradley challenged Mr Luddington's choice of sub-contractor and failure to recommend G & A Painters and in another contract, Mr Bradley overrode Mr Luddington's recommendation and required G & A Painters to be appointed. G &A Painters were also contracted directly for at least four or five other contracts directly by the AFP.

17. The proceedings in this court were commenced in a sense when Mr Goodwin was committed for trial on 13 February 2006. A draft indictment was filed on 31 March 2006. It was a joint indictment including the count referred to in [1] above but also eleven other counts involving only Mr Bradley.

18. In June 2006, a fresh draft indictment was filed containing the same count in respect of Mr Goodwin but only five counts in respect of Mr Bradley.

19. On 29 June 2006, Mr Goodwin's lawyers applied by Notice of Motion for an order that the counts on the indictment relating to Mr Bradley be heard separately from the count relating to Mr Goodwin. On 13 July 2006, that order was made.

20. A fresh draft indictment, containing only the count against Mr Goodwin (see [1] above) was filed on 1 August 2006.

21. In August 2006, these proceedings were deferred to await the trial of Mr Bradley on the other counts. Mr Bradley's case involved some pre-trial applications and on 20 March 2007 a jury was empanelled and the prosecution opened its case. The defence also made an address to the jury.

22. As noted by the trial judge, Crispin J, in R v Bradley [2007] ACTSC 35 (at [5]):

In the light of the competing contentions advanced in those addresses, it seemed to me that there were real doubts as to whether the foreshadowed evidence was capable of sustaining the various counts in the indictment. I raised this issue with the learned Crown prosecutor and during the course of the ensuing discussion he advised me that sections of the written submissions he had earlier supplied relating to "dishonesty" and "benefit" could be taken as particulars of those aspects of the offences charged in the relevant counts. In the ordinary course of events, any argument as to the sufficiency of the evidence to sustain a prima facie case must await the close of the case for the Crown. However, as the Court of Appeal observed in R v Fischetti & Caggiano [2003] ACTCA 5 (31 March 2003) at [30]; "A jury, once empanelled, might be directed to acquit, even on the basis of the Crown opening, if that represents the Crown case taken at its highest, and the presiding judge considers that it could not, in law, justify a conviction". In the light of the opening address for the Crown, and the indication that the relevant portion of its written submissions could be accepted as particulars, it seemed to me that it might well be possible to identify the limits of the Crown case "taken at its highest". Accordingly, I indicated that I might be prepared to hear argument, even at that early stage of the proceedings, as to whether there should be directed verdicts of acquittal in relation to some or all of the counts.

23. Ultimately, his Honour did hear argument and directed acquittals on all counts on 21 March 2007.

24. When this matter was next mentioned before the court after that acquittal, it was noted that an appeal had been lodged from his Honour's judgment. It was, of course, a "reference appeal" under s 37S of the Supreme Court Act 1933 (ACT). It was not, however, until 22 April 2009 that the court upheld the reference appeal, stating that a trial judge is not entitled to record a verdict of acquittal under s 287 of the Crimes Act 1900 (ACT) in respect of a prosecution case based on circumstantial evidence on the basis that the prosecution could not negative all reasonable inferences that were inconsistent with the guilt of the accused.

25. Nevertheless, at some stage prior to April 2009, the court progressed those proceedings in the meantime and, on 2 October 2008, the application (referred to in [3] above) was filed. The matter was heard on 11 November 2008. I directed that a fresh case statement be filed and permitted written submissions to be made by the parties but otherwise reserved my decision. An amended case statement was filed and written submissions were filed by Mr Goodwin's lawyers.

26. The requirement for what is now known as a case statement was introduced into ACT Supreme Court criminal procedure following some general consideration of criminal trial reform both nationally and in the Territory.

27. The genesis was the Report (the Martin Report) of the Working Group on Criminal Trial Procedure of the Standing Committee of Attorneys-General (SCAG) chaired by Martin J (as his Honour then was) and which reported in September 1999. There had been precursors. For example, the Best Practice Model for the Determination of Indictable Charges agreed between the Conference of Directors of Public Prosecutions and National Legal Aid in August 1998, recommended full disclosure by the prosecution and pre-trial judicial supervision. The Crimes (Criminal Trials) Act 1999 (Vic) established a detailed pre-trial procedure.

28. The Martin Report supported the procedure introduced by the Crimes (Criminal Trials) Act 1999 (Vic), namely that the prosecution file a case statement "which must outline the manner in which the prosecution will put its case against a defendant and the acts, facts, matters and circumstances being relied upon to support a finding of guilt". This, described as "a summary of the prosecution opening" is taken from s 6 of the Victorian Act.

29. The Martin Report was considered at a Deliberative Forum on Criminal Trial Reform convened by SCAG and held in June 2000, and the Deliberative Forum recommended in its Report that, subject to certain exceptions, a reasonable time before the commencement of the trial, the prosecution should be required to file and serve a final case statement (Recommendation 32).

30. In the ACT, a forum was subsequently held of relevant local stakeholders and reform was implemented through Practice Directions. Initially, Supreme Court Practice Direction No 1 of 2001, "Criminal Jurisdiction: Procedure on Committal from the Magistrates Court" (par 31) required the Director of Public Prosecutions to "file and deliver to the accused, or his/her representatives, a case statement". The contents of such a statement were not otherwise described. This was superseded by, but relevantly in the same terms as to this issue, Supreme Court Practice Direction No 3 of 2004, "Criminal Jurisdiction: Procedure on Committal from the Magistrates Court" and then by the Supreme Court Rules 1938 (ACT), O 80 Div 7 r 20 and now by the Court Procedures Rules 2006 (ACT) in which r 4733 requires the prosecution to file and serve a draft indictment, case statement, list of witnesses and its answers to a pre-trial questionnaire (Form 4.10).

31. The case statement in this Territory is not a summary of the prosecution opening. It is prepared at a relatively early stage after committal, much earlier than required under the proposals referred to above (at [27] to [29]), and not as a "final case statement" as there suggested. The case of the prosecution may change before trial and, of course, so may the case statement. This may become more common with the change in the committal process recently instituted in this Territory. The case statement is a statement of the way the prosecution puts its case and how the various elements of each offence are to be proved. It thus has some similarity to an advice on evidence, a useful analogy. It will make clear which acts, omissions, circumstances or results are said to constitute the offences charged. It is now used frequently, as in this case, to provide a basis for pre-trial applications such as for the severance of the indictment, or on admissibility of evidence and the like.

32. It is, however, not a pleading, nor does it have formal binding status. Thus, it does not supply particulars of counts on the indictment. These must be supplied in the usual way, though a good case statement will, of course, have incorporated the facts which found the particulars. There is no reason why, as here, particulars are not included in the case statement, so long as it is clear that they are particulars of the pleading kind.

33. Until formally relied upon by the prosecution, which may never happen, the case statement does not constitute the prosecution opening by which certain elements in the trial are judged. In a pre-trial application, it can be added to or amended, or relied on for the purposes of the application.

34. It is important that the case statement makes clear how each element is to be proved. In this case, I found in the original case statement that it was difficult to see how it was said that the alleged dishonesty of Mr Goodwin was to be proved. The amended case statement addressed that in a helpful and appropriate way and provided particulars in a separately headed section.

35. It is not sufficient in a case statement simply to set out the facts, like a police statement of facts, or an agreed statement of facts for sentencing. Those facts are important and to be included but must be related to the elements of the offence that need to be proved and how that is said to be done on the facts.

36. Mr Goodwin, represented by Mr B Salmon QC and Mr R Livingston, complains that the count on the indictment in its present form is duplicitous. Initially, the focus was, in fact, on the provision of particulars, unsurprising given the reference to "other services" in the count.

37. The oral argument, however, concentrated on the claimed duplicity of the count, both patent and latent duplicity. It was submitted that the present indictment created unfairness.

38. Some challenge was also made to the likely admissibility of some of the matters set out in the case statement but, of course, I do not have to address those issues on this application.

39. Again, part of the oral submissions were taken up with argument that the prosecution would not be able to prove its case. It was suggested that it would be a difficult case for a court to explain to a jury and that it was an unstructured case where material was simply "put together" and that the jury would be asked "out of all that you must find something that implies dishonesty". Again, while that may or may not be true, it is not a matter that I can consider on this application. The application requires me to focus on whether the indictment is bad for a defect such as lack of particulars or duplicity or some other matter, though the first two were the focus of the submissions for Mr Goodwin.

40. There was, as far as I could see, no submission that there would be different defences to each occasion of benefit provision such that Mr Goodwin would be prejudiced by the way in which the prosecution proposed to conduct the case.

41. The prosecution, represented by Mr G Farmer, submitted that the first question to be asked was whether the section created a separate offence, in the sense used in Walsh v Tattersall (1996) 188 CLR 77, whereby each benefit constituted a separate offence. It was submitted that the courts had recognised that, where there was a continuing course of conduct, a separate count was not necessarily required for each occasion of such conduct. Reliance was placed particularly on R v Locchi (1991) 22 NSWLR 309 and Hamzy (1994) 74 A Crim R 341.

42. The prosecution submitted that here there was an ongoing arrangement. All the instances of benefit provision were "all so tied up" that there was no prejudice in them being particularised as part of the one indictment.

43. Mr Farmer submitted that evidentiary difficulties (I assume he means absent any latent duplicity disclosed by the evidence) are not relevant to this application.

44. He further submitted that unfairness was an important consideration and that no unfairness had been shown. What seemed to be the defence, though not clearly articulated, was that none of the relevant provisions of benefits were done with dishonest intent. In the trial, that defence, it was submitted, would not give rise to unfairness in the way Mr Goodwin had to participate in the trial.

45. In Walsh v Tattersall, Dawson and Toohey JJ, though in dissent, set out (at 84) the essence of duplicity as follows:

The proscription against duplicity is succinctly stated by Archbold:

The indictment must not be double; that is to say, no one count of the indictment should charge the defendant with having committed two or more separate offences ... This rule though simple to state is sometimes difficult to apply ... Duplicity in a count is a matter of form, not evidence.

The rule has been described as one of elementary fairness, to enable the defendant to know what it is of which he has been charged or found guilty and so that he has the opportunity of making a no case submission or a sensible plea in mitigation. That duplicity is a matter of form, not a matter relating to the evidence called to support the count, is emphasised by the Court of Appeal in Greenfield. For this reason S v The Queen is, in our view, not a case of duplicity. (footnotes omitted)

46. As Walsh v Tattersall is a central case often cited in relation to duplicity, it is worth understanding exactly what it decided.

47. Dawson and Toohey JJ held that where there was a course of conduct, such as here, a count which could be proved by any or all of a series of acts was not duplicitous. It was, however, important for the accused to be "in no doubt as to the case to be presented against him" (at 86) but that "[i]n most cases the uncertainty can be dispelled by further and better particulars" (at 87). Their Honours also made clear the difference between evidentiary issues and the pleading issue of duplicity.

48. In the same case, Kirby J traced the rule against duplicity at least to the early 17th century and noted that the original strictness was not currently applied in England, where the court had taken a "practical" or "commonsense" approach, as exemplified in an oft-quoted passage of Lord Diplock in Director of Public Prosecutions v Merriman [1973] AC 584 (at 607):

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.

49. Justice Kirby did not accept such an approach and said (at 110):

With all respect to those who are of a different view, I cannot agree to any reduction in the strict approach to resolving questions of duplicity in the pleading of criminal charges. A strict approach has been consistently applied by this Court ... Quite apart from the consistent application of the authority of this Court, there are reasons of legal principle or policy which favour the approach of this Court and which resist the approach which has apparently found favour in England and New Zealand.

50. His Honour then set out five reasons of legal principle or policy.

51. Gaudron and Gummow JJ did not decide the case on the basis of duplicity. Their Honours held that the section of the Act created an offence that was completed once the payment of the benefit had been made.

52. The effect of Walsh v Tattersall has been helpfully summarised by Simpson J in Jackwitz v The Queen [2006] NSWCCA 419 (at [25]-[27]):

1. ... In that case, a single charge was brought under a statute which made an offence of obtaining by dishonest means any payment or other benefit under the statute. The defendant, Walsh, was charged with obtaining a series of payments or benefits by dishonest means. The payments or benefits were particularised.
2. It was there argued that the count was bad for duplicity as alleging a number of separate offences. Dawson and Toohey JJ rejected the argument. Their Honours noted that the prosecution case was not of a series of separate dishonest pretences, but that, as a result of, effectively, a single dishonest pretence, Walsh received multiple payments or benefits. The gist of the offence was the act of dishonesty in making a false pretence.
3. Gaudron and Gummow JJ decided the case on what they described as 'an anterior question', and did not deal with the duplicity issue. Kirby J was of the opinion that the count was bad for duplicity.

53. The reason for the rule against duplicity has been conveniently set out in the reasons of Gaudron and McHugh JJ in S v The Queen [1989] HCA 66; (1989) 168 CLR 266 (at 284-5):

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'.

54. See also Hyde v Mason [2005] QCA 79; [2005] 2 Qd R 159 and Rixon v Thompson [2009] VSCA 84.

55. As was said by Barr and Hall JJ in Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373; (2006) 165 A Crim R 151 (at 247):

A duplicitous count may be productive of prejudice as, for example, by evidence being wrongly admitted or incorrect directions being given to the jury: S v The Queen [1989] HCA 66; (1989) 168 CLR 266 at 285; [1989] HCA 66; 45 A Crim R 221 at 235 per Gaudron and McHugh JJ.

The standard imposed by well-established rules of practice in criminal proceedings requires that fair information and reasonable particularity as to the nature of the offence charged be given to a defendant: Johnson at 501 per McTiernan J, citing Smith v Moody [1903] 1 KB 56. See also John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508 at 521; [1987] HCA 42; 27 A Crim R 228 at 236 per Mason CJ, Deane and Dawson JJ.

A defect in a criminal pleading may arise due to a deficiency in particulars, as for example, in specifying the factual matters said to support the charge. Such a deficiency may give rise to ambiguity capable of creating prejudice for a defendant.

56. There are two forms of duplicity. They have been conveniently labelled "patent duplicity" and "latent duplicity". Each result in the court and the accused being unable to be certain about the case to be met and, if a conviction follows, of what the accused has been convicted.

57. Essentially, duplicity is a matter of form and not of evidence: Taylor v The Queen [1997] TASSC 5; (1997) 6 Tas R 310 (at 321); Greenfield (1973) 57 Cr App R 849 (at 855). The duplicity, however, may not be apparent on the face of the count in an indictment (patent duplicity) as where the count actually charges two or more offences, but only become clear when evidence has been led. Thus, in Wilson (1979) 69 Cr App R 83 (at 85) the UK Court of Appeal distinguished between "true duplicity" and what it described as "divergence or departure" where the evidence actually led establishes that more than one offence was committed on the occasion to which a particular count relates. This is now more generally referred to as "latent duplicity", possibly from the use of the term "latent ambiguity" in Johnson v Miller [1937] HCA 77; (1938) 59 CLR 467. See also the reference by Asprey J in Ex parte Graham; Re Dowling & Anor (1968) 88 WN (Pt 1) (NSW) 270 (at 284) to "latent ambiguity or uncertainty". See R v Yankovski [2007] VSCA 259; (2007) 178 A Crim R 495 (at 500-4).

58. The term latent duplicity was explained by Phillips and Buchanan JJA, with whom Orniston J agreed, in Walsh [2002] VSCA 98; (2002) 131 A Crim R 299 (at 309) as follows:

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.

59. In this case, the duplicity is arguably both patent and latent duplicity.

60. The approach taken by the House of Lords in Director of Public Prosecutions v Merriman (see [48] above) has been followed in Australia. It was quoted with approval by Dawson and Toohey JJ in Walsh v Tattersall. It has been followed in R v Whitington [2006] NTCCA 4; (2006) 197 FLR 103 (NT Court of Appeal); Taylor v The Queen. See also R v Heaney [2009] VSCA 74 (at [39]). Although Kirby J in Walsh v Tattersall referred to this passage in the House of Lords judgment, his Honour clearly rejected (at 110) a more pragmatic approach.

61. Whichever approach is adopted, however, there are problems. As Gleeson CJ said in Stanton v Abernathy (No 2) (1990) 19 NSWLR 656 (at 666), "the courts have never managed to produce a technical verbal formula of precise application which constitutes an easy guide ... as to whether the common law rule [against duplicity] has been infringed."

62. Notwithstanding the "strict" approach preferred by Kirby J, his Honour did state in Walsh v Tattersall (at 108):

Various verbal formulae have been offered as a suggested test for whether the criminal acts are sufficiently close in time and space as to "fairly and properly be identified as part of the same criminal enterprise or the one criminal activity". These valiant attempts by judges have been criticised as "glib". Judges themselves have acknowledged that judicial views in particular cases are not always easy to reconcile. Ultimately, what is presented is a question of fact and degree for decision in each case. Various indicia are proposed to sustain a single count against the charge of duplicity, notwithstanding that it may permit evidence to be adduced of events which, taken individually, could constitute separate offences. The indicia include (a) the connection of the events in point of time; (b) the similarity of the acts; (c) the physical proximity of the place where the events happened; and (d) the intention of the accused throughout the conduct. Perhaps an indication of the considerable difficulty of the task to be found is in the fact that, in many of the leading cases, there is (as in this case) a division of judicial opinion.

Exceptions to the general rule against duplicity have been allowed where the multiple acts relied on by the prosecution are so close in time and place that they can be viewed as one composite activity; where the offence is one that can be classified as continuing in nature; and in other anomalous cases.

64. Recently, the Court of Appeal in Victoria has, relying upon the comprehensive review and the authorities in R v Heaney, set out a helpful scheme by which a court should approach the question. In Rixon v Thompson, the Court, comprising Maxwell P, Weinberg JA and Kyrou AJA said (at [83]-[85]):

1. ... we should say at once that we do not accept the respondent's submission that one approaches the question of duplicity by asking simply whether the defendant was in some sense treated unfairly. It is true, as Gaudron and McHugh JJ made clear in S v The Queen, that the rule against duplicity has long rested upon a basic consideration of fairness, namely that an accused should know what case he or she has to meet. It does not follow that, provided the accused does know the case to be met, there can be no difficulty associated with a duplicitous charge. In the first place, the rule itself is grounded upon considerations which include, but also extend beyond, fairness. As their Honours made clear, one important consideration is the orderly administration of criminal justice. And, as their Honours also made clear, there are a number of aspects to that consideration.
2. Of course, the requirement that an accused be informed clearly of the case that he or she must meet is based on a broader principle than that which underlies the rule against duplicity. In the present case, the appellant was fully aware of precisely what the complainant claimed had occurred. He was provided with a detailed statement, setting out each specific act that the appellant was alleged to have committed. To that extent, the requirements of Johnson v Miller were satisfied.
3. However, that is by no means the end of the matter. If upon a fair reading of the charge, it alleged the commission of two or more separate offences, then prima facie it would be what is often described as 'patently duplicitous'. The problem could then only be cured by an election. We say 'prima facie' because even an apparently duplicitous charge will not fall foul of the rule if one of the recognised exceptions to the rule is made out.

65. Before applying the law to the facts of this case, it is worth considering some of the authorities as to the exception relating to what might be called a continuing offence.

66. It is convenient to refer first to R v Locchi where Samuels JA, with whom Enderby and Loveday JJ agreed, said (at 312-3):

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.

67. The court rejected the claim of unfairness and the challenge to the indictment.

68. Subsequently, in Hamzy, the submission was made (at 345-346) that R v Locchi had been wrongly decided. The court reconsidered the position noting (at 345-6) that both R v Locchi and another case Smale (unreported, NSWCCA, 13 November 1987):

... cited respectable authority for the principle which they stated. In Jemmison v Priddle (at 495; 234), Lord Widgery CJ held that, depending upon the circumstances, it is legitimate to charge in a single count one activity even though that activity may involve more than one act and notwithstanding that each such act would itself constitute an offence. That statement was expressly approved by Lord Morris of Borth-y-Gest in DPP v Merriman [1973] AC 584 at 593; (1972) 56 Cr App R 766 at 776. In the same case (at 607; 796), Lord Diplock said:

Where a number of acts of a similar nature ... 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 18th century, to charge them in a single count of an indictment.

See also Wilson (1979) 69 Cr App R 83 at 85-87; Eades (1991) 57 A Crim R 151 at 154-156; Ex parte Graham; Re Dowling (1968) 88 WN (Pt 1) (NSW) 270 at 283-284.

69. Hunt CJ at CL, with whom Abadee and Simpson JJ agreed, then addressed a number of arguments made by the appellant. At 347, his Honour said:

The right of the Crown to establish a number of acts where each is not specified in a separate count, it is said, denies to an accused knowledge of the nature of the case which he has to meet, infringing the principle stated in Johnson v Miller (at 487, 489) and in S (at 274, 281-282, 284-285; 227, 232-233, 234-235). But those cases are altogether different. In each of them, the Crown sought to rely upon only one individual act as constituting the offence charged but declined to identify in advance which particular one out of the multitude of acts which it was intending to prove. Where the Crown seeks to establish a particular activity or enterprise, it relies upon every act which it intends to prove (although, obviously enough, it does not have to establish every such act in order to succeed). In such a case, the Crown would be obliged to provide proper particulars, not only to enable the accused to know the case which he has to meet (Stanton v Abernathy at 663; 21), but also to enable the trial judge to deal with any objection taken to what is proposed ...

Next, it is said that proof of an activity or enterprise in accordance with this principle permits the Crown to call what is in effect propensity evidence without the protection of proper directions as to the use which may legitimately be made of that evidence. But the evidence is not of mere propensity to commit this particular crime. Each individual act of supply is directly relevant to the issue which the Crown seeks to prove - namely, in the present case, that the appellant was engaged in the criminal enterprise of dealing in heroin. There is nothing said in either Hoch [1988] HCA 50; (1988) 165 CLR 292; 35 A Crim R 47 or Harriman [1989] HCA 50; (1989) 167 CLR 590; 43 A Crim R 221 which would prevent such a course being followed.

70. His Honour addressed the issue of autrefois convict and autrefois acquit and then concluded (at 348) that "[a] reconsideration of all these authorities does not persuade me that the principle stated by this Court in Smale and Locchi is wrong".

71. To the same effect is the decision of the Court of Criminal Appeal of Victoria in Giretti (1986) 24 A Crim R 112 and the Court of Appeal in Queensland in Jacobs [1997] QCA 114; (1997) 94 A Crim R 15 (at 20). In F (1996) 90 A Crim R 356, Hunt CJ at CL, with whom Ireland J and Bell AJ agreed, held (at 361) that Walsh v Tattersall had not overruled Hamzy.

72. Such cases are not limited to drug cases. In Dendy v Brinkworth and Anor [2006] SASC 179; (2006) 97 SASR 407, the court was confronted with the question of whether the clearing of 27 separate sites of native vegetation could be charged under one offence proscribing such clearing. Duggan J held that the 27 sites could be included in the one charge. His Honour held that the offence was a continuous offence: "[t]he clearing of such land is likely to be carried out in the course of a continuous operation spread over a period of time" (at 413). His Honour further accepted that (at 414) "the prosecution could not exclude the possibility that the clearing of a particular site involved more than one act of clearing".

73. A similar approach can be seen in fraud cases. In R v Moussad [1999] NSWCCA 337; (1999) 152 FLR 373, Smart AJ, with whom Wood CJ at CL and Bell J concurred, said (at 382):

1. The courts in this State have found that 'enterprise' counts have their place in drug supply and fraud cases where it is important to stress the overall criminality. Some large scale heroin and cocaine operators supply relatively small amounts at a time so that if caught, they cannot be charged with supplying a commercial quantity or a large commercial quantity. In order to bring home the full extent of their criminality and ensure appropriate punishment, the quantities from a number of acts and supply have to be aggregated. The enterprise is to supply large commercial quantities of heroin, cocaine or other harmful drugs.
2. In some of the fraud cases, as part of a systematic and long term defrauding, small sums are taken by overclaims and other dishonest means. Each instance may well involve a small sum which can be dealt with a Magistrate. Often the frauds continue for some years. The smaller the sum taken, the less likely it is to be investigated and discovered. Despite the arguments to the contrary, if there had been a series of separate counts, whether nine based on the false quarterly fee claim or 46 based on the false statements, I would not have regarded separate counts as appropriate.

74. In Tuck [1999] TASSC 135; (1999) 117 A Crim R 305, the accused was charged with one count of stealing but the prosecution sought to rely on multiple takings of moneys that were the property of a club, the accused being the wife of the treasurer. On appeal, the accused, who had been convicted, sought to challenge the conviction on the ground of duplicity.

75. Slicer J, with whom Evans J agreed, (Cox CJ disagreeing on this point but agreeing on the decision), held that allegations of stealing by means of a general deficiency is both a composite activity and one of the anomalous cases referred to by Kirby J in Walsh v Tattersall. Slicer J set out certain principles prohibiting or inhibiting duplicitous charges. Those principles (at 317) were:

(1) notification to the person charged of the precise nature of the crime charges;

(2) identification of discrete acts alleged where such acts give rise to a specific form of criminal responsibility;

(3) precision so as to prevent a change in the nature of the prosecution case at trial;

(4) definition of the issue before the court or tribunal so that the relevant law might be applied;

(5) definition of the issue so that only relevant and admissible evidence can be adduced on trial;

(6) identification of the verdict of a jury or tribunal in a form which governs the relevant sanction or consequence;

(7) the admixture of allegations of disparate conduct.

76. In Hyde v Mason, the Queensland Court of Appeal considered the structure of a charge under s 1347 (now repealed) of the Social Security Act 1991 (Cth), which provided:

A person must not knowingly obtain:

(a) payment of a social security payment under this Act or of fares allowances; or

(b) payment of an instalment of a social security payment under this Act;

for which the person is not eligible, or which is:

(c) not payable at all; or

(d) only payable in part.

It concluded that the section created "one continuing breach constituted by a number of separate acts which together satisfy the element of obtaining" (at [21]). This was based on a construction of the Act and of the provision to ensure that each part had "meaningful work to do".

77. In R v Ferguson and Anor [2005] VSC 527; (2005) 165 A Crim R 337, Kaye J held that a count charging the accused of money laundering, where the Crown relied on a large number of ongoing transactions involving the accounts and funds of the accused, did not allege that each individual deposit, withdrawal or cash payment constituted an act of money laundering, even though, had it sought to rely on specific individual transactions constituting the acts of money laundering it may have been able to do so but may have had to charge each transaction separately.

78. In Montgomery v Stewart [1967] HCA 11; (1967) 116 CLR 220, the accused was charged with authorising the issue of a prospectus containing untrue statements. Particulars were given in the indictment of a number of statements said to be untrue. The section creating the offence provided a defence if the accused proved that the untrue statement was immaterial. Accordingly, he argued that, if each statement were charged separately, he would be at liberty to show that some were immaterial and that others were true.

79. The High Court had no difficulty in finding that the substance or gist of the offence was that of authorising the issue of the prospectus which contains any untrue statement or statements. The giving of the authority was the single act and the character of the offence did not depend on or vary with the number of untrue statements. The court held that no duplicity was shown.

80. Finally, in Tasmania v M [2008] TASSC 21; (2008) 184 A Crim R 404, Blow J had to consider an indictment charging the accused with ill-treatment of certain children. The charge was supported by what was alleged to be a course of conduct over a period of years. His Honour held (at 407):

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.

81. To summarise, the authorities seem to make clear at least the following propositions:

1. Each count on an indictment must only charge one offence.

2. The evidence as led must not disclose, subject to permitted exceptions, such as allowable 'uncharged acts', the commission of more than one offence.

3. Where, in either case, more than one offence is disclosed, the prosecution must, as the circumstances require, amend the indictment, provide further and better particulars or elect as to which act is relied on to prove the charge.

4. If the prosecution does not proceed in one of these ways, the accused must be acquitted.

5. The accused must know the case which he, she or it has to face and with sufficient particularity to be able to understand and, if available, to meet it. This may be provided, as well as in the indictment, by particulars, and by the way the prosecution conducts the case, including the prosecution opening. This may be assisted by the case statement, if adopted in the trial by the prosecution.

6. To comply with such obligations, the prosecution must notify the accused of the precise nature of the offence charged and identify the discrete acts alleged where they give rise to a specific form of criminal liability. The prosecution must also ensure that the court is fully informed of those matters so that the relevant law is applied and only relevant evidence is adduced.

7. The question of whether more than one offence has been charged or disclosed depends upon the terms of the statute creating the offence and the legislation must be carefully considered to understand what the substance of the offence is.

8. Where an offence is a continuing offence, then more than one act can constitute the offence and evidence of such multiple acts will not make a count duplicitous.

9. Where an offence is a "composite offence", then more than one act can constitute the offence and evidence of such multiple acts will not make a count duplicitous.

10. In determining whether an offence is a continuing offence or a "composite offence", relevant indicia include but are not limited to the connection of the acts in point of time, their similarity, the physical proximity where they occurred and the alleged intention of the accused throughout the conduct.

11. Considerations to be borne in mind by the court include fairness to the accused and, the orderly administration of criminal justice, including the maintenance of proper conduct of the trial including as to admissibility of evidence and the correct directions to be given to the jury, the certainty of what culpability is represented by a conviction to determine sentence and the certainty on which a future plea of autrefois convict or autrefois acquit can be based.

82. Applying this law, then, I turn to the charge and the facts in this case.

83. Section 142.1 of the Criminal Code Act (Cth) relevantly provides:

142.1 Corrupting benefits given to, or received by, a Commonwealth public official

Giving a corrupting benefit

(1) A person is guilty of an offence if:

(a) the person dishonestly:

(i) provides a benefit to another person; or

(ii) causes a benefit to be provided to another person; or

(iii) offers to provide, or promises to provide, a benefit to another person; or

(iv) causes an offer of the provision of a benefit, or a promise of the provision of a benefit, to be made to another person; and

(b) the receipt, or expectation of the receipt, of the benefit would tend to influence a public official (who may be the other person) in the exercise of the official's duties as a public official; and

(c) the public official is a Commonwealth public official; and

(d) the duties are duties as a Commonwealth public official.

Penalty: Imprisonment for 5 years.

(2) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew:

(a) that the official was a Commonwealth public official; or

(b) that the duties were duties as a Commonwealth public official.

...

Benefit in the nature of a reward.

(4) For the purposes of subsections (1) and (3), it is immaterial whether the benefit is in the nature of a reward.

84. The genesis of this offence is in the Report of the Model Criminal Code Officers Committee of SCAG, Model Criminal Code, 'Theft Fraud Bribery and Related Offences' (1995) (Ch 3). While there are drafting differences, the substance of s 20.3 in that Report is the same as this section.

85. I have read the commentary to the proposed s 20.3 carefully but, as often happens, the practical aspects of the offence and its appropriate pleading are not addressed. The only slight suggestion is in the sentence, "[c]learly, the sorts of benefits that can be conferred in a bribe are many and varied and anything that can be said to constitute a benefit should be covered" (at p 269). The use of the plural for "benefits" with the singular for "bribe" is a miniscule point on which to rely.

86. Paragraph 142.1(1)(b) is perhaps itself some help in that it includes not just receipt which might be said to be a discrete and singular act, but also "expectation of receipt" which is a little more ambiguous about a singular receipt but apt to include an ongoing series of receipts, such as continuing free lunches or the like.

87. The predecessor of the provision, namely s 73(3) of the Crimes Act 1914 (Cth) is in quite different terms. It provided:

(3) A person who, in order to influence or affect a Commonwealth officer in the exercise of his duty or authority as a Commonwealth officer, gives or confers, or promises or offers to give or confer, any property or benefit of any kind to or on the Commonwealth officer or any other person is guilty of an offence.

Penalty: Imprisonment for 2 years.

88. This, in itself, is a product of an amendment in 1982; the earlier version of the offence being in somewhat different terms.

89. I could find only five authorities on s 73, Gorman v The King (1944) 45 WALR 80, Williams v The Queen (1979) 23 ALR 369, McDonald v Bojkovic [1987] VicRp 33; [1987] VR 387 and Kim [1993] TASSC 19; (1993) 65 A Crim R 278 and the Petroulias litigation. None of them assisted in the issues in this case, though I note that the first three related to the payment of one sum of money to the relevant official. I do not believe that this fact is of any particular assistance.

90. I do note that in the fourth case, Kim, the particulars of the indictment described the benefit (at 281) as "offered to give Peter Nathan Bennett Ten Thousand Dollars and future financial benefits". The court then noted (at 288) that there was "evidence ... that the respondent [the accused] offered to one Peter Bennett sums of money".

91. More recently, this section was used to prosecute Nikytas Nicholas Petroulias and at least 36 rulings were made by the trial judge. None, however, dealt with this issue. Doing the best I can, it appears that during the course of a business arrangement, Mr Petroulias received from time to time sums of money which ultimately totalled $41,000: R v Petroulias (No 36) [2008] NSWSC 626 (at [21]-[23], [75] and [114]).

92. As a relatively new section, s 142.1 has not, so far as I can discover, received much consideration. The only decision is a sentence imposed by Higgins CJ in this court in R v Bal [2009] ACTSC 45. The issues in this case did not arise for consideration. I do note that fifteen counts were preferred. Nevertheless, we do not, in Australia, follow the US approach of using administrative views and practices to construe legislation. Thus, the decision in that case to charge fifteen counts is not determinative of whether separate counts are necessarily required.

93. I also note that the offence created by s 142.1 is not of what might be called "actual bribery". The receipt of the benefit is only required to "tend to influence" the public official. In this way, a payment that might not be enough in itself to cause a public official to be influenced, may nevertheless have that tendency, that is to be conduced or disposed (Macquarie Dictionary) to be influenced.

94. Nevertheless, "benefit" is widely defined. It is defined in s 140.1 to include "any advantage and is not limited to property". Thus, for example, there is no reason why an arrangement less than a contractual agreement, whereby some form of access is granted to the public official, should not be a benefit. An arrangement or understanding of this kind could be quite informal. In the context of the use of the phrase "arrangement or understanding" in the Trade Practices Act 1974 (Cth) some assistance can be gained.

95. Thus, in Trade Practices Commission v Nicholas Enterprises Pty Ltd & Ors (No 2) [1979] FCA 51; (1979) 40 FLR 83 (at 88), the Federal Court adopted the following statement by Willmer LJ in Re British Basic Slag Ltd's Application [1963] 1 WLR 727 (at 739):

Though it may not be easy to put it into words, everyone knows what is meant by an arrangement between two or more parties. If the arrangement is intended to be enforceable by legal proceedings, as in the case where it is made for good consideration, it may no doubt properly be described as an agreement. But the Act... clearly contemplates that there may be arrangements which are not enforceable by legal proceedings, but which create only moral obligations or obligations binding in honour ... For, when each of two or more parties intentionally arouses in the others an expectation that he will act in a certain way, it seems to me that he incurs at least a moral obligation to do so. An arrangement as so defined is therefore something "whereby the parties to it accept mutual rights and obligations".

96. Similarly, in Federal Commissioner of Taxation v Lutovi Investments Pty Ltd [1978] HCA 55; (1978) 140 CLR 434, Gibbs and Mason JJ (as their Honours then were) said (at 444):

It is, however, necessary that an arrangement should be consensual, and that there should be some adoption of it. But in our view it is not essential that the parties are committed to it or are bound to support it. An arrangement may be informal as well as unenforceable and the parties may be free to withdraw from it or to act inconsistently with it, notwithstanding their adoption of it.

97. Similarly, the concept of an understanding is broad and flexible. Smithers J in L Grollo & Co Pty Ltd v Nu-Statt Decorating Pty Ltd (in Liq) and Ors [1978] FCA 33; (1978) 34 FLR 81 (at 89):

I have to remember that the concept of an understanding is broad and flexible. It may arise merely where the minds of the parties are at one that a proposed transaction proceeds on the basis of the maintenance of a particular state of affairs or the adoption of a particular course of conduct.

98. It may be that, depending on the precise terms of the arrangement or understanding, the benefit may not accrue until advantage is taken of what it offers, but the offer may constitute the essence of the benefit.

99. This is a complex case and will make a difficult trial. That, however, is not to say that the court cannot strain to meet the challenges and, indeed, it must do so.

100. On the case statement, on which, for reasons outlined above, I rely, there seem to be two basic benefits. The first is the access to discounted paint. That, it seems to me is claimed to be on the basis of an understanding or arrangement so that individual purchases are transacted in that context.

101. The evidence in the case statement does not suggest that each occasion of the obtaining of paint at a discount using the account of G A Painters is specifically authorised by him before Mr Bradley or his wife attends at the relevant outlet.

102. This seems to me to give the circumstances the character of a continuing offence: the access to the paint account is an ongoing benefit under an arrangement or understanding.

103. In this sense it is not different from an arrangement to pay periodical amounts as a benefit (as appears to be the Petroulias position) or, for example, for a café to provide free coffee to police officers as and when they attend. While each individual supply may be an offence in itself, the ongoing provision is encompassed within the benefit which is the provision of such access as and when required. This, in my view, permits the provision of paint at a discount in this case to be included in the one count.

104. The second benefit, though described as "other services", appears to be limited to the assistance provided at the residential development being constructed by NJR Development. If this is not so, it needs to be expressly particularised. This matter is somewhat more complex. It is true that the genesis of the arrangement is, as alleged, the relationship between Mr Bradley and Mr Goodwin, perhaps merely of friendship, but alleged to be a little more, and it has to be so in order to found the offence.

105. It does not seem to me that such a relationship even of the wider kind is sufficient to make these separate circumstances into a part of continuing offence. The arrangement there is sufficiently different in nature and without other connections, such as time or place, to justify incorporation into the notion of a continuing course of conduct with access to discount paint.

106. Accordingly, I would not let the indictment in its present form go to a jury. The words "and other services" must be deleted. The inclusion of that is duplicitous. The prosecution may prefer another count to charge the benefit alleged in relation to the NJR Development but it must be particularised. That need not be in the indictment but it is not sufficient simply to include it in the case statement unless specified to be for the purposes of the pleading process.

1. That the prosecution have leave to amend the indictment dated 1 August 2006 to omit the words "and other services" and, if advised, to add another count.

2. That the prosecution be given leave to file an amended indictment within 14 days.

3. If the prosecution in the amended indictment charge offences under s 142.1 of the Criminal Code Act 1995 (Cth), that the prosecution provide particulars of the benefit alleged to have been provided and of the dishonesty alleged in respect of each count.

I certify that the preceding one-hundred and seven (107) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the plaintiff: Commonwealth Director of Public Prosecutions

Counsel for the defendant: Mr B Salmon QC and Mr R Livingston

Solicitor for the defendant: Wood Fussell Solicitors