MATTER : An application under the Magistrates Court Act 2004 Section 36 for a review order against Mr Robert Keith Black, Magistrate, of the Magistrates Court at Perth

Criminal law and procedure - Return of review orders in respect of decision of magistrate dismissing a charge as bad for duplicity contrary to Criminal Procedure Act 2004 (WA) s 23(1) and sch 1 cl 2(4) - Whether charge was bad for duplicity - Approach to that question - Whether Australian Crime Commission Act 2004 (Cth) s 33(1) created two offences, not one

Australian Crime Commission Act 2002 (Cth), s 4, s 24A, s 33

Controlled Substances Act 1984 (SA), s 32

Crimes Act 1914 (Cth), s 3C, s 20B, s 20BA

Criminal Procedure Act 2004 (WA), s 23(1), s 76, s 131, Sch 1

Hospital Insurance Act 1973 (Cth), s 129

Magistrates Court Act 2004 (WA), s 6, s 11, s 36

Misuse of Drugs Act 1981 (WA), s 6

1 This is the return of a review order in respect of orders of a magistrate. The review order was made on 3 June 2008 by Johnson J. The magistrate's order was that of Magistrate Black in the Magistrate's Court Perth on 27 February 2008 dismissing a charge of an offence under the Australian Crime Commission Act 2002 (Cth) (ACC Act) s 33(1) (the magistrate's order). The order was made following his decision that day that the charge was bad for duplicity (the magistrate's decision).

2 I have concluded that the magistrate's decision was in error, the magistrate's order should be set aside and the charge should otherwise be dealt with according to law.

3 I first set out the background to the proceedings in this court. I then describe those proceedings, before considering the grounds advanced for making orders to set aside the magistrate's order and further orders in this case.

4 By prosecution notice numbered 05 41015 and dated 2 August 2005 Mr Antonio Pruiti-Ciarello pursuant to ACC Act s 33(1) was charged as follows:

Being a person appearing at an examination before an examiner of the Australian Crime Commission gave false or misleading evidence in a material particular.

(1) A person shall not, at an examination before an examiner, give evidence that is to his or her knowledge false or misleading in a material particular.

6 I note that before me nothing was made of the omission from the charge of any reference to knowledge.

7 On each of 19 December 2006, 20 December 2006 and 20 November 2007, there was a hearing on that charge. Following submissions on the last day, his Honour reserved his decision.

8 What next occurred appears from the magistrate's decision, 2 - 4, in which his Honour said this, referring to the decision of the New South Wales Court of Criminal Appeal in R v Cassell (1998) 45 NSWLR 325, and the requirements of Criminal Procedure Act 2004 (WA) (CP Act) s 23 read with sch 1 cl 2(4):

During the course of preparing reasons for decision a question arose as to whether or not the charge was duplicitous. This arose as the result of a passage in R v Cassell (1998) 45 NSWLR 325 ('Cassell'), an authority referred to by the prosecutor during submissions, though in relation to matters other than the question of duplicity. As a result Counsel for the respective parties were invited to make submissions as to the issue of duplicity. This occurred on 14 February 2008. These reasons are in relation to that issue.

In Cassell the issue of duplicity arose in a case stated to the Court of Criminal Appeal in New South Wales. It arose as the result of Cassell being charged with four counts of knowingly giving false evidence in a material particular during the conduct of an enquiry conducted under the Independent Commission against Corruption Act 1988 (NSW) ('the ICAC Act'). Section 87 of that Act is in the following terms-

'A person who, at a hearing before the Commission, gives evidence that is, to the knowledge of the person, false or misleading in a material particular is guilty of an indictable offence.'

The case stated challenged various rulings made by Judge Downs QC on a de novo appeal from the Local Court. One of the questions to be answered was whether Downs J had made an error when he ruled that the words 'false or misleading' in section 87 of the ICAC Act were disjunctive and not conjunctive; that is that the section created two separate offences. The submission made by Cassell was that section 87 created one offence and that the section had to be read as though the words were 'false and misleading'. In relation to that matter, at page 333, Mr Justice Smart said -

'Cassell submitted that section 87 created one offence and that the section had to be read as though the words were false and misleading. The words are not synonymous.

There are cases in which the word "or" has been held to mean "and". On the other hand, in Field v Hopkinson (1944) 1 KB 42 at 43, Viscount Caldecote CJ said: " ... If an enactment forbids the doing of act A or act B, it creates two offences and a conviction on one information charging both in the alternative is bad for uncertainty. ...". It is a question of construction whether one offence or two offences are created.

In an investigation into whether there has been corrupt conduct it is important that a witness speak the whole truth and that his evidence not be misleading. In my opinion, the word "or" should be given its ordinary meaning as this better reflects the objects of the legislation. Consequently, I think that the section creates two offences.

I agree with the conclusion reached by the Judge.'

Their Honours Ireland and Dunsford JJ agreed with the reasons of Smart J in relation to this matter. It is clear therefore that their Honours concluded that section 87 of the ICAC Act created not one offence but two offences, being -

(a) Giving false evidence in a material particular, and

(b) Giving misleading evidence in a material particular.

Section 87 of the ICAC Act is in substantially the same terms as section 33(1) of the Act. Section 33(1) of the Act provides -

'A person shall not, at an examination before an examiner, give evidence that is to his or her knowledge false or misleading in a material particular.'

Given the decision in Cassell, the question arises as to whether section 33(1) of the Act creates one or two offences. If it creates two offences then the charge offends against clause 2(4) of Schedule 1 to the Criminal Procedure Act 2004 ('the CPA') which schedule, pursuant to section 23(1) of the CPA, has effect in relation to prosecution notices and charges in them. Clause 2(4) of Schedule 1 of the CPA provides -

'A charge must allege one offence only, unless clause 8 or another written law permits otherwise.'

Clause 8 of Schedule 1 is not relevant for present purposes. No submission has been made that any other written law permits more than one offence to be contained in a charge in the present circumstances. A 'charge' is defined by section 3 of the CPA to mean -

'A written allegation in a prosecution notice or indictment that a person has committed an offence.'

9 I will return below to the quotation in Cassell from Field v Hopkinson [1944] 1 KB 42. After considering a number of authorities his Honour concluded 'as it now stands the charge therefore is bad for duplicity' (9). His Honour also provided an 'Addenda' (9) following this statement of his conclusion in which he indicated that he had considered two additional authorities: R v O'Halloran [2000] NSWCCA 528; (2000) 182 ALR 431 and R v Harris [1999] TASSC 53; (1999) 108 A Crim R 58, and that 'those authorities do not change the conclusion in this particular matter'.

10 On 27 February 2008, at the hearing at which he published his decision, and consistently with what it appears to have been agreed before me was the well recognised practice in cases of a conclusion that a charge is bad for duplicity (see Stanton v Abernathy (1990) 19 NSWLR 656, 671 (Gleeson CJ)); see also CP Act s 132(5)), his Honour allowed the prosecution the option to apply to amend the charge or to elect which form of the charge it wished to pursue (see ts 2). The prosecution declined to avail itself of this option.

11 Following submissions to his Honour as to his power or powers to proceed in those circumstances, he concluded 'the only way I can then deal with the matter, given that it is bad, is to dismiss the charge' (27 February 2008, ts 5).

12 Magistrates Court Act 2004 (WA) (MC Act) s 36 provides in material part as follows:

36. Supreme Court's powers to control Court

(1) If a person is or would be aggrieved by one or more of the following -

(a) the failure of a Court officer to do any act or make any order or direction -

(i) on the ground that the officer is under a duty to do the act or make the order or direction; or

(ii) on any ground that might have justified an order of mandamus;

(b) an act, order or direction that a Court officer proposes to do or make -

(i) on the ground that it would be without jurisdiction or power or would be an abuse of process; or

(ii) on any ground that might have justified an order of prohibition;

(c) an act, order or direction done or made by a Court officer -

(i) on the ground that it was done or made without jurisdiction or power or is an abuse of process; or

(ii) on any ground that might have justified an order of certiorari,

the person may apply to the Supreme Court for an order (a review order) that requires the Court officer and any person who will be affected by the act, order or direction to satisfy the Supreme Court at a hearing that the act, order or direction should or should not be done or made or set aside, as the case requires.

(2) The procedure for making, and in relation to, an application under subsection (1) is to be prescribed by rules of court of the Supreme Court.

(3) On an application made under subsection (1) and rules of court of the Supreme Court, the Supreme Court may make any review order that is just, whether it has been applied for or not.

(4) If at the hearing required by a review order the Supreme Court is not satisfied in accordance with the review order, or if it is just to do so, it may -

(a) order that the act, order or direction be or not be done or made or set aside, as the case requires;

(b) grant any relief or remedy that could have been granted by way of a writ of mandamus, prohibition or certiorari;

(c) make any necessary consequential orders.

13 Rules of the Supreme Court 1971 (WA) O 56A r 5 is as follows:

5. Review order, hearing of

(1) At the hearing of a review order any person who wants to oppose the making of an order under section 36(4) or (5) is entitled to be heard, even if he or she has not been served with the review order.

(2) The Court may order any person who is served with a review order, or who is heard at the hearing of a review order, to pay costs.

(3) A person who wants to adduce affidavit evidence at the hearing of a review order must give reasonable notice of the fact to each other party.

14 By notice of originating motion dated 24 April 2008 the applicant applied under MC Act s 36 in the following terms:

TAKE notice that the Supreme Court will be moved at Perth before a Judge of the Supreme Court at Perth on the 3rd June day of 2008 at the hour of 10.30 in the forenoon, or so soon thereafter as counsel can be heard, by counsel on behalf of the application for the following relief, namely:

1. A review order requiring Mr Robert Keith Black and any other person affected by the order dismissing charge number 51015 of 2005 to satisfy the Supreme Court at a hearing that the said order should not be set aside and thereafter otherwise dealt with according to law;
2. A review order requiring Mr Keith Robert Black and any other person affected by the act of failing to determine charge number 41015 of 2005 on the basis of duplicity to satisfy the Supreme Court at a hearing that the charge was so duplicitous and thereafter otherwise dealt with according to law;
3. Such orders as to costs as this Honourable Court deems fit.

And further take notice that the grounds of this application are:

1. The learned Magistrate's order dismissing charge number 41015 of 2005 was made without jurisdiction under either the Magistrates Court Act 2004 (WA) or the Criminal Procedure act 2004 (WA);
2. The learned Magistrate erred by failing to determine the charge before the Court on the basis that the charge was bad for duplicity.

15 The orders of Johnson J of 3 June 2008 were in terms of the '1' and '2' first appearing in that notice of originating motion.

16 At the hearing before me there was an appearance by senior counsel for the applicant, but there was no appearance for Magistrate Black, who I understood had indicated he would abide my decision. Counsel for Mr Pruiti-Ciarello applied for leave to be heard, and senior counsel for the applicant indicated he had no objection to leave being granted and I granted it. Before me counsel for Mr Pruiti-Ciarello in his written submissions undertook the burden of meeting each of the two grounds in the notice of originating motion.

17 I turn now to the grounds on which the review order was granted.

Ground 1: power to dismiss a charge bad for duplicity

18 Counsel for Mr Pruiti-Ciarello did not contend that the learned magistrate had inherent power to dismiss the charge. In my view any such contention would have failed. The Magistrate Court's jurisdiction is entirely statutory: see Traill-Nash v Messer [2004] WASCA 11. It follows that a statutory power vested in that court must be found.

19 Counsel for Mr Pruiti-Ciarello put forward three alternative statutory bases for the power to dismiss in the circumstances of this case. They were Crimes Act 1914 (Cth) s 20BA(1) (Crimes Act) read with Crimes Act s 3C(1) 'offence' and MC Act s 11(3a); MC Act s 11(2)(e) read with s 6; and ACC Act s 33(3). I deal with each basis. In my view, none is sufficient for the purpose for which they were proffered.

20 However, in my view there is no doubt his Honour did have the power permanently to stay the prosecution, under CP Act s 76. On such a view, it was common ground, as I understand it, that, if ground 2 were not made out, no orders of the kinds sought on the review order could properly be made.

21 I turn now to the first of the suggested three bases for a power to dismiss. Crimes Act s 20BA(1) reads as follows:

20BA Upon determining prima facie case, court to dismiss charge or to determine fitness within 12 months

(1) Where the court determines that there has not been established a prima facie case that the person committed the offence, the court must, by order, dismiss the charge against the person and, if the person is in custody, order the release of the person from custody.

22 For meaning of 'prima facie case' for the purposes of this provision, counsel for Mr Pruiti-Ciarello referred me to Beecham Group Limited v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618. That was a patent case which was concerned with whether or not a prima facie case had been established for the purpose of an application for an interlocutory injunction. The test there set out (622, Kitto, Taylor, Menzies and Own JJ) is in terms that

if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief: Preston v Luck [(1884) 27 Ch D 497, at p 506]; Challender v Royle [(1887) 36 Ch D 425, at p 436].

23 As I have indicated I was also referred to the definition of 'offence' in Crimes Act s 3C(1) and to MC Act s 11(3a). Crimes Act s 3C(1) is as follows:

3C Interpretation

(1) In this Part, unless the contrary intention appears:

...

offence means:

(a) an offence against a law of the Commonwealth (other than the Defence Force Discipline Act 1982); or

(b) an offence against a law of a Territory; or

(c) a State offence that has a federal aspect

(3a) The Court's criminal jurisdiction includes any jurisdiction that is conferred on the Court by a written law other than this Act and that is expressly said to form part of the Court's criminal jurisdiction.

25 Counsel for Mr Pruiti-Ciarello put to me that the effect of the MC Act s 11(3a) read with the Crimes Act s 20BA, itself read with s 3C(1) 'offence', was that jurisdiction to dismiss the charge in this case under s 20BA(1) of the Crimes Act was vested in the Magistrates Court. Whether or not MC Act s 11(3a) has that effect (on which I have some doubt: see Interpretation Act 1984 (WA) s 5 'written law'), for the purposes of further consideration of the suggested basis I accept that the learned magistrate had the power under Crimes Act s 20BA(1) to dismiss the charge in at least some cases.

26 Counsel for Mr Pruiti-Ciarello submitted to me that there was a power to dismiss the charge under Crimes Act s 20BA(1) in accordance with the test in Beecham. Whether or not Beecham is the appropriate test to apply for the purposes of s 20BA(1) is not a matter I consider I need to pursue. That is because I consider that s 20BA(1) has no application in this case.

27 The submission of counsel for Mr Pruiti-Ciarello was, as I understood it, that the effect of CP Act sch cl 2(4) was to make it impossible successfully to prosecute the accused on the charge in this case on any evidence. Thus, it was submitted, the jurisdiction in Crimes Act s 20BA(1) was engaged.

28 The submission as to the application of Crimes Act s 20BA(1) must fail. Not only is the provision inapplicable, in my view, to a matter which is not one of the evaluation of evidence proffered, but the effect of the provision contended for is difficult to reconcile with the option which counsel for Mr Pruiti-Ciarello appears to have accepted was properly put to the prosecution in this case. On his submission the charge ought to have been dismissed once a determination of duplicity had been made, as indeed on that submission s 20BA(1) requires. The provision does not on its face readily allow for a recasting of the charge, after the evidence is in.

29 I have also noted the context in which Crimes Act s 20BA(1) appears, to which senior counsel for the applicant drew my attention. That context is the division of the Act in which s 20BA(1) appears, being pt 1B div 6, headed 'Unfitness to be tried'. Crimes Act s 20B also appears in that division, and it sets out a procedure for determining fitness to be tried. There was in this case, of course, no question of invoking that process.

30 However, I am not convinced that that context has any bearing on the construction of the dismissal of a charge under s 20BA(1). On its face that provision does not relate to any prior invocation of that process, although s 20B(4) and s 20B(5) both refer the possibility of a dismissal of the charge after such invocation. However, in view of my earlier conclusion as to scope of the jurisdiction under s 20BA I consider I do not need to go further into the matter.

31 I turn then to the second of the suggested three bases for a power to dismiss.

32 That basis was MC Act s 11(2)(e), read with s 6, which I took to be a reference to s 6(1). Those provisions are as follows:

11**. Criminal jurisdiction**

(2) The Court has jurisdiction -

...

(e) to deal with any case that, under a written law, is to be dealt with by a court of summary jurisdiction.

6. Magistrates, functions of

(1) A magistrate has the functions imposed or conferred on a magistrate by laws that apply in Western Australia, including this Act and other written laws.

33 The submission of counsel for Mr Pruiti-Ciarello in relation to this basis was, as I understood it, that the power in MC Act s 11 'to deal with any case' read with s 6 extended to the power to dismiss a charge as bad for duplicity.

34 That submission must fail, in my view. Neither MC Act s 11(2)(e) nor s 6 specifies how a magistrate may exercise the power or perform the function. Other law is relevant for that purpose, in my view. No other law in that connection was specified.

35 I turn now to the third of the suggested three bases for a power to dismiss.

36 That basis was ACC Act s 33(3), which reads as follows:

(3) Notwithstanding that an offence against subsection (1) is an indictable offence, a court of summary jurisdiction may hear and determine proceedings in respect of such an offence if the court is satisfied that it is proper to do so and the defendant and the prosecutor consent.

37 The submission of counsel for Mr Pruiti-Ciarello in relation to this basis was, as I understand it, that the power to 'hear and determine proceedings' includes the power to dismiss the proceedings on the basis the charge is bad for duplicity.

38 That submission must fail, for similar reasons to those I gave for rejecting the previous suggested basis for the power to dismiss. ACC Act s 33(3) is concerned with giving a court of summary jurisdiction power to deal with an offence under s 33(1) notwithstanding it is an indictable offence. I do not see how s 33(3) can be read to go to how the court of summary jurisdiction is then to deal with that offence. For that purpose there must be resort to other law. No other law in that connection was specified.

39 However, while none of the three bases relied upon by counsel for Mr Pruiti-Ciarello is in my view sufficient for the purpose for which they were proffered, there was in my view power in the circumstances of this case to order a permanent stay of proceedings, if the charge was found to be contrary to CP Act sch 1 cl 2(4), and following an opportunity for the prosecution to make a Stanton election. That power lay in CP Act s 76(1), which reads as follows:

76. Staying a prosecution permanently

(1) A court may at any time order that the prosecution of a charge be stayed permanently, if it is satisfied that the charge is an abuse of the process of the court.

40 It will be noted that the power under CP Act s 76(1) is enlivened if the court is satisfied that the charge is an abuse of the process of the court. I consider that if his Honour's understanding of the position after the Stanton election was correct, then it was open to his Honour to be so satisfied.

41 I turn now to consider whether or not that understanding was correct, which takes me to ground 2.

43 It was common ground before that the approach to be taken to the construction of the requirement in CP Act sch 1 cl 2(4) is that for the purposes of a determination whether or not a charge is bad for duplicity.

44 A widely cited statement of the approach to determining whether or not a charge is bad for duplicity is to be found in Romeyko v Samuels (1972) 2 SASR 529. That case concerned a complaint that the accused had knowingly sent by post a postal article which had therein marks or designs of an indecent, obscene, blasphemous, libellous or grossly offensive character, contrary to Post and Telegraph Act 1901 - 1970 (Cth) (PT Act) s 107(c). That provision, as well as s 107(a) of the PT Act, as set out in the judgment appealed from in Romeyko, read as follows:

Any person who knowingly sends or attempts to send by post any postal article which -

(a) encloses an explosive or a dangerous filthy noxious or deleterious substance or a sharp instrument not properly protected or a living noxious creature or any other thing likely to injure other postal articles in course of conveyance or to injure an officer of the department or other person; or

...

(c) has thereon or therein or on the envelope or cover thereof any words marks or designs of an indecent obscene blasphemous libellous or grossly offensive character,

shall be liable to a penalty not exceeding two hundred dollars or to imprisonment with or without hard labour for a term not exceeding two years (533 - 534).

45 Romeyko was an appeal against a judgment that the respondent's conviction should be quashed on the ground, among others, that the complaint was bad for duplicity. The appeal was dismissed, but the court by a majority concluded that the complaint was not bad for duplicity.

46 Bray CJ said this, referring to, among other authorities, R v Naismith [1961] 2 All ER 735 and Bastin v Davies [1950] 2 KB 579:

The first question to be decided is whether s 107(c) creates for the present purpose one or several offences. Here, with respect, I find myself in disagreement with the learned Judge. It seems to me that the opening words of s 107, read with the specific words of sub-section (c), create two offences only, one of knowingly sending and one of knowingly attempting to send a postal article possessing any one or more of certain characteristics. The complaint only charges the defendant with knowingly sending, not with knowingly attempting to send. If the postal article in question has more than one objectionable word, mark or design, if it has some of such words, marks or designs thereon and some therein and some on its envelope and some on its cover, nevertheless only one offence, in my view, is created. If there are words to which all the five adjectives can be applied, or a collection of words to some of which each of the five adjectives can be applied separately, still, in my view, only one offence is created. Were it otherwise, for example, if a man knowingly sent by post a postal article which contained one word both indecent and obscene, another indecent word, another blasphemous word and another libellous word, and if all of those words were grossly offensive as well, he would commit ten offences. The principles adopted by this Court in R v O'Loughlin; Ex parte Ralphs [(1971) 1 SASR 219] might save the defendant from being convicted more than once in respect of the same word, but could not on this interpretation save him from several convictions for several different words. I cannot think that Parliament intended anything like this. I think that the case falls into the line of authorities represented by Smith v Perry [[1906] 1 KB 262]; Hedberg v Woodhall [(1913) [1913] HCA 2; 15 CLR 531]; Moore v Allchurch [[1924] SASR 111]; per Napier J., as he then was, at p 119; Thomson v Knights [[1947] KB 336]; Naismith ...; and O'Sullivan v Truth and Sportsman Ltd [(1957) [1957] HCA 8; 96 CLR 220]. I agree with Mr Cox that the observations of the learned Judges of the High Court in the last-mentioned case at p 224 are practically conclusive on this point.

The true distinction, broadly speaking, it seems to me, is between a statute which penalises one or more acts, in which case two or more offences are created, and a statute which penalises one act if it possesses one or more forbidden characteristics. In the latter case there is only one offence, whether the act under consideration in fact possesses one or several of such characteristics. Of course, there will always be borderline cases and if it is clear that Parliament intended several offences to be committed if the act in question possesses more than one of the forbidden characteristics, that result will follow. See, for example, Bastin .... So it may be, as Mr Cox suggests, that s 107(a) creates several offences if more than one of the things referred to therein is enclosed in the same postal article, but it is not necessary to decide that. In s 107(a) the various prohibited things are each separated by the word 'or', whereas in s 107(c) the word 'or' only appears once before the last item in the collection, and this has sometimes been regarded as a feature of importance, though with respect, it seems to me that it can only possess very limited significance.

I think, then, that s 107(c) only creates one offence of sending a postal article of the kind referred to. This conclusion renders it unnecessary to discuss many of the points canvassed about the form of the complaint in the event of the Court holding that more than one offence was alleged in it. (551 - 552, emphasis supplied)

See also 567 (Bright J); compare 570 - 571 (Sangster J, holding at 571 the 'conviction is bad for duplicity').

47 I pause to note that, if there is more than one offence created by the relevant provision, a charge expressed in the terms of the provision and disjunctively (or in the alternative) is treated under this approach as bad for duplicity, even although, as Bray CJ in Romeyko points out, referring to Bastin, 581 (Lord Goddard CJ), '[p]robably, in strictness, counts improperly joined conjunctively are referred to as bad for duplicity and counts improperly joined disjunctively are referred to as bad for uncertainty' (553). At the same time, as Bray CJ indicates, referring to Smith v Perry [1906] 1 KB 262 (554):

there is some, though scanty, authority for the view that a disjunctive joinder is bad even in the case of a single offence which may be committed in any of several different ways (Smith ..., per Lord Alverstone CJ at p 265), unless, of course, the word 'or' is not a true disjunctive but is to be read as meaning 'otherwise called' (R v Hall [(1876) 3 CA (NZ) 317]).

48 It was not put to me that that 'scanty' authority was applicable in this case, and I have not been able to find any reference to Smith in the cases I reach below on the application of the approach to duplicity I have described.

49 At the same time, as Romeyko itself illustrates, a charge that is not bad for duplicity or uncertainty may still be regarded as improperly drawn because it does not tell the accused with 'reasonable particularity' how the accused is alleged to have committed the offence: 554 - 555 (Bray CJ). A charge so drawn may result in a charge being dismissed or a conviction quashed, at least where particulars are requested but not supplied, and unreasonable prejudice is caused to the defence thereby: see CP Act s 131. However, it was not suggested to me that in this case particulars had been requested, nor indeed (duplicity, or uncertainty, aside) that there was any lack of reasonable particularity in the charge in this case.

50 I return now to the passage in Romeyko first quoted above. The part of that passage emphasised, or substantially the whole of that part, has been quoted with approval in a number of subsequent cases in which the question whether a charge was bad for duplicity has arisen. See for example Lodhi v Regina [2006] NSWCCA 121 [74] (Spigelman CJ); Harris [14] (Evans J); R v Hoang [2002] SASC 262; (2002) 83 SASR 254 [20] (Gray J); and Bowling v General Motors Holdens Pty Ltd (1975) 8 ALR 197, 218 (Woodward J). I set out below the quotation from Romeyko in Harris.

51 There are indeed, as senior counsel for the applicant reminded me, many cases where it has been held that use of the word 'or' in the statute did not prevent the conclusion being reached that a single offence was created. See Ex parte Polley; re McLennan (1947) 47 SR NSW 392 (offence under Liquor Act 1912 (NSW) s 65(1)(c) of failing to keep licensed premises free from offensive 'or' unwholesome matters; charge in those terms not bad for duplicity); Naismith (Courts Martial Appeal Court) (offence under Offences against the Person Act 1861 (UK) s 18 of causing grievous bodily harm with intent to maim, disfigure 'or' disable; charge in those terms not bad for duplicity); Lafitte v Samuels (1972) 3 SASR 1 (offence under Police Offences Act 1953 - 1967 (SA) s 7 of, in a public place, behaving in a disorderly 'or' offensive manner; charge in those terms not bad for duplicity; but see 20, Zelling J); R v Collins (1993) 67 A Crim R 104 (CCA WA) (offence under Misuse of Drugs Act 1981 (WA) s 6 of possession of prohibited drug with intent to sell 'or' supply; explanation of plea of guilty to charge in those terms of stipulated quantity, that part only of the quantity was for supply the rest being for personal use, was inconsistent with the charge); Salmon [1994] NTSC 21; (1994) 70 A Crim R 536 (SC NT) (offence under Criminal Code (NT) s 155 of, while being able to provide rescue, resuscitation, medical treatment, first aid 'or' succour of any kind to a person urgently in need of it and whose life may be endangered if it is not provided, callously failing to do so; charge in those terms not bad for duplicity); and Hoang (CCA SA) (offence under Controlled Substances Act 1984 (SA) s 32(1)(e) of knowingly having in one's possession 'such a drug or substance' for the purposes of sale, supply 'or' administration; charge in terms of knowingly having heroin, a prohibited substance, for the purpose of selling or supplying it to another person not bad for duplicity).

52 At the same time, I note that, as appeared to be common ground, the question of duplicity (or uncertainty) is one, where the word 'or' is used, not simply of whether or not different characteristics of one act are specified, but also of whether or not the specification of different characteristics should be taken as indications of different offences or rather different characteristics of a single offence: see Salmon 545 (Kearney J); and Romeyko 552 (Bray CJ, referring to Bastin).

53 In the magistrate's decision, in the context I reach below, his Honour referred to all of the authorities in the previous paragraph except Polley (the magistrate's decision pages 5 - 6). However, his Honour had also earlier referred to authority on the meanings of 'false' and 'misleading' (the magistrate's decision page 4), from which he appears to have concluded that these terms do not overlap, from which in turn his Honour appears to have concluded, in the light of Cassell, that the ACC Act s 33(1) provides for two offences, not one.

54 I consider that his Honour's apparent conclusion from the authorities on the meanings of 'false' and 'misleading' was correct, as I will indicate. However, in my view that apparent conclusion does not lead to the conclusion that ACC Act s 33(1) provides for two offences, not one, while Cassell offers no support for the latter conclusion, for the reasons set out below.

55 His Honour referred to Holt v Cameron (1979) 27 ALR 311 (SASC) and the Macquarie Dictionary for the meaning of 'false'.

56 The Macquarie Dictionary Online (as at 15 February 2009) gives as one definition of 'false' the following, which appears to be the definition quoted in the decision:

57 I took his Honour's reference to Holt to be to 315 (King CJ):

The word 'false' is capable of meaning merely 'incorrect' or 'inaccurate' and the word 'misleading' is capable of meaning 'innocently misleading'.

58 His Honour referred to Versteeg v The Queen (1988) 14 ACLR 1 (CCA WA), per Malcolm CJ for the ordinary meaning of 'misleading'. I took his Honour's reference to Versteeg to be to 317:

I am not aware of any decided case on the meaning of 'misleading' as it appears in s 564(1) of the Code. The word is used in the expression 'false or misleading'. The ordinary meaning of 'misleading' is not 'incorrect', but 'leading into error' ... .

59 I accept on the basis of those authorities that, as his Honour apparently concluded, in their ordinary meanings the terms 'false' and 'misleading' indeed do not overlap. At the same time, I also accept, that evidence may be false in one respect, and misleading in another respect. I consider his Honour recognises this when he notes there may be 'evidence which will not necessarily be untruthful, incorrect or erroneous but is misleading' (the magistrate's decision page 7 emphasis added; see also page 8). I set out the context to that passage below.

60 His Honour's reasoning taking account of the ordinary meanings of 'false' and 'misleading' appears from the magistrate's decision pages 5, 6, 7 and 8, in which his Honour discusses Cassell and the view of ACC Act s 33(1) expressed by Sweeney DCJ in R v Mercanti (Unreported, DCt of WA, No 135 of 2006, 16 October 2006).

61 The magistrate's decision, page 5 in relevant part is as follows:

As indicated counsel for the prosecutor refers to the reasons of Sweeney DCJ in Mercanti in support of his submission that section 33(1) of the Act creates one offence. In this matter a submission was made, on the basis of Cassell, that an indictment under section 33(1) of the Act, which alleged the giving of evidence before an examiner was 'false or misleading', was duplicitous. Her Honour rejected this submission and held that section 33(1) of the Act created one offence only. The basis for the conclusion reached by Her Honour appears to be set out at page 29 of the transcript, where Her Honour says -

'The question depends upon the language employed in section 33(1) of the Act and its subject matter. I have reached the conclusion that Parliament intended to penalise one act, namely the giving of evidence, which does not amount to truthful evidence whether because it is false or misleading or false and misleading in a material particular.'

In the last paragraph on page 29 and on to page 30 of the transcript, Her Honour further says -

'I conclude that section 33(1) creates one offence of giving evidence that is false or misleading or both. In my view, Parliament intended to create an offence which also embraced evidence which might not strictly be false but is clearly misleading and therefore has the same effect. To the extent, if any, that this ruling is contrary to the decision in R v Cassell then with great respect to that court I decline to follow that decision.'

62 His Honour then as I have previously indicated referred (the magistrate's decision, pages 5 - 6) to Hoang, Collins, Lafitte and Naismith, as decisions in relation to which counsel for the prosecution had made the submission they were (the magistrate's decision page 6)

demonstrative of the proposition that section 33 (1) of the Act should be read as containing one offence only, notwithstanding the use of the word 'or' between the word false and the word misleading.

63 His Honour then went on (the magistrate's decision pages 7 - 8) as follows:

The submission on behalf of the accused is that though the reasons of their Honours in Cassell are short and though they do not deal specifically with section 33(1) of the Act they are of application in this particular instance as the Act there under consideration is in substantially the same terms. It is submitted that the reasoning of Sweeney DCJ in Mercanti is incorrect. The submission is that the basis of Her Honour's conclusion that there is but one offence created by section 33(1) of the Act is that -

'Parliament intended to penalise one act, namely the giving of evidence, which does not amount to truthful evidence ...' (the italics being mine).

It is submitted that this is incorrect because evidence that is truthful, evidence that is correct, that is not erroneous, may in any event be misleading. Evidence given that is truthful may not be the whole truth and as a result may lead into error being made. False evidence is evidence that is incorrect or erroneous or is not truthful evidence. Misleading evidence may be truthful or correct evidence. The submission is that the section penalises not only evidence that is untruthful but also evidence that is misleading and that these are separate and distinct offences. It is therefore said that the basis of Her Honour's conclusion is incorrect as it refers to but one of the acts offending against section 33(1) of the Act. As a result it is submitted that it ought not be followed. As I understand it the correctness of the other decisions referred to in the prosecutors submissions is not disputed. What appears to be said however is that in these particular instances where the word 'or' appears are different to the section now under consideration. They are instances of one offence being created with the various alternatives indicated by the work 'or' being simply incidents of that single offence. That is that possession of an illegal substance for the purpose of distribution is the offence with an incident of that offence being to sell or supply. Similarly the single offence is of causing grievous bodily harm, with the intent to maim, disfigure or disable being alternative incidents of the intent required. This is different it is said to an offence under section 33(1) the Act of either giving evidence which is false, that is untruthful, incorrect or erroneous, or the different offence of giving evidence which will not necessarily be untruthful, incorrect or erroneous but is misleading. As a result it is submitted that two offences are created by section 33(1) of the Act.

It is my understanding that neither the decision of the Court of Criminal Appeal in New South Wales in Cassell nor the decision of Sweeney DCJ in Mercanti are binding upon me. They are however persuasive authority. The decisions are clearly at odds. It is the case that the decision in Cassell approaches from a different angle than does the decision of Sweeney DCJ in Mercanti the question of whether a statute worded in substantially the same terms as section 33(1) of the Act creates more than one offence. It does appear to me however that notwithstanding this both decisions are directed towards the same question; that is whether or not the relevant statutes create one or two offences. In all the authorities to which reference has been made the question of whether a particular statute creates one or two offences is said to depend upon the intent of Parliament as disclosed by a proper construction of the Act being considered. In Cassell four judges, the original appeal judge and three judges of the Court of Criminal Appeal, reached the conclusion that the word 'or' in section 87 of the ICAC Act creates two offences and that such conclusion better reflects the objects of the legislation; that is that that is the intent of that Act. The court in Cassell recognized and referred to the fact that in other circumstances the word 'or' had been held to mean 'and', thereby creating not two but one offence. Sweeney DCJ in Mercanti concluded that the intent of the legislature by section 33(1) of the Act is to create but one offence. In my view the conclusion of Sweeney DCJ relies upon her conclusion that the intent of Parliament was to penalise the giving of untruthful evidence. As previously set out for a statement to be 'false' the statement must be untrue, incorrect or erroneous. For a statement to be 'misleading' it is not necessary for it to be any of those things but merely capable of leading into error. A statement that is true or not incorrect or not erroneous may well be capable of leading into error. As was set out by Smart J in Cassell '... it is important that a witness speak the whole truth and that his evidence not be misleading' in examinations such as are conducted under the Act. With respect, in my view, section 33(1) of the Act does not intend to penalise only the giving of untruthful evidence but also evidence that though truthful may be misleading. Accordingly, I prefer the view advanced in Cassell and decline to follow the view expressed in Mercanti.

64 In my view, it does not follow from the fact that in their ordinary meanings the 'forbidden characteristics' of the act the relevant statutory provision penalises do not overlap that the provision should be understood to create different offences. There is no indication of such a view in the authorities I have referred to. The question of one or more than one offence remains one of statutory construction.

65 It may be that the lack of overlap weighs in favour of a conclusion that the statute should be construed as one creating more than one offence, although I do not consider such a view can be readily extracted from the authorities.

66 However, there is authority that a statute penalising conduct which creates a false or misleading appearance of a particular kind, or the furnishing of a return or information which is false or misleading in a material particular, creates only one offence for the purposes of the law as to duplicity. That authority is O'Halloran and Harris. As I indicated early in these reasons, his Honour referred to that authority: the magistrate's decision page 9. However, as I will shortly indicate, he erred in not addressing the question of statutory construction which he appears to have recognised was before him in the light of those authorities.

67 O'Halloran concerned a prosecution on a charge the accused had done something 'that was intended to create a false or misleading appearance with respect to the price of securities' of a company, contrary to Corporations Law (NSW) s 998. On an appeal against conviction the court concluded the charge was not bad for duplicity. Heydon JA said this:

First, the submissions do not explain how the primary judge 'failed to appreciate the duplicity argument'' as distinct from rejecting it. Indeed the reference to Murphy v Farmer [1988] HCA 31; (1988) 165 CLR 19; 79 ALR 1 in the appellant's submissions to the primary judge and to this court, and in the primary judge's reasons for judgment, suggests that the primary judge did appreciate the argument. An argument was put below that s 998(1) created one offence of doing something intended to create a false appearance with respect to the price of securities, and another offence of doing something intended to create a misleading appearance with respect to the price of securities. It was submitted that 'false'' meant 'deliberately untrue' while 'misleading' meant 'true but misleading in the context': 1/155 line 56-156 line 4. That analysis for s 998(1) was supported by the citation of Murphy v Farmer [1988] HCA 31; (1988) 165 CLR 19; 79 ALR 1, a case on the construction of s 229(1)(i) of the Customs Act 1901 (Cth). It was submitted that 'the issue in duplicity is not just whether you are able to meet it but whether a jury, in coming to the decision, consider the true import of each word beyond a reasonable doubt and not shovel it together': 1/156 lines 21-4. That was the argument which the primary judge rejected. The primary judge held that what the prosecution had to prove was the doing of something intended to create a particular appearance: it sufficed if that appearance could be characterised as false or misleading. As the primary judge said, Mason J in North v Marra Developments Ltd [1981] HCA 68; (1981) 148 CLR 42 at 58-9 ; [1981] HCA 68; 37 ALR 341 appeared to treat the words 'false or misleading appearance' in the predecessor to s 998(1), namely the Securities Industry Act 1970 (NSW) s 70, as a single integer of one offence, not distinct integers of separate offences. Mason J said the object of s 70 was to protect the market from 'artificial managed manipulation' and to cause it to be 'real and genuine, free from manipulation'. He said that the 'false or misleading appearance' which conduct in breach of s 70 is calculated to create 'is that the market ... appears to be real or genuine, there being no overt sign of market support or manipulation'. In Fame Decorator Agencies Pty Ltd v Jeffries Industries Ltd [1998] NSWSC 157; (1998) 28 ACSR 58 at 62-3, Gleeson CJ used similar language in saying that conduct found in breach of s 998(1) in that case had 'both the purpose and effect of creating, temporarily, an artificial market and price'. An artificial, managed, manipulated, non-genuine market is one with a false or misleading appearance [78].

68 Harris concerned a prosecution on an indictment with a number of counts, each that, for the purposes of the Hospital Insurance Act 1973 (HI Act) (Cth) or its regulations, the accused had furnished 'a return or information ... which was false or misleading in a material particular', contrary to HI Act s 129(2), which was in those terms. The accused submitted that he was not required to plead to the counts in the indictment as each such count was bad for duplicity.

69 Evans J said this, quoting from Romeyko 552 (Bray CJ) with approval:

... The duplicity asserted is that each count alleges the furnished material was 'false or misleading' and this involves an allegation of two distinct offences. In Anthony [1982] Qd R 284, Demack J said (at 289):

'It is sufficient to say that the words "false" and "misleading" do bear separate and distinct meanings. A representation may be false but not misleading, and a representation may be misleading and not false.'

The issue whether the word 'or' in a statutory provision creates one offence, or two or more offences, has been addressed on many occasions. A convenient summary of relevant authorities appears in DPP (Vic) v Williams [1993] 1 VLR 238, Hedigan J at 242-245. At 245, his Honour set out the following passage from Romeyko ... at 552 where Bray CJ said:

'The true distinction, broadly speaking, it seems to me, is between a statute which penalises one or more acts, in which case two or more offences are created, and a statute which penalises one act if it possesses one or more forbidden characteristics. In the latter case there is only one offence, whether the act under consideration in fact possesses one or several of such characteristics. Of course, there will always be borderline cases and if it is clear that Parliament intended several offences to be committed if the act in question possesses more than one of the forbidden characteristics, that result will follow.'

Hedigan J said that the above passage appeared to him to successfully encapsulate the principles which should govern judicial conclusions as to duplicity and, with respect, I agree with him.

The argument put by the defence could, in the circumstances of the charge under consideration, have been extended to a contention that as each charge alleges that the accused furnished 'a return or information' and that the same was 'false or misleading', four distinct offences are involved in each charge. As put, the argument was not taken this far. The ingredients which would distinguish the four offences are, furnishing:

(i) a return which was false;

(ii) a return which was misleading;

(iii) information which was false;

(iv) information which was misleading.

In many circumstances where there has been a breach of s 129(2), it is likely that the material furnished will be 'information' as well as being contained in a 'return' and that the material will be both 'false' and 'misleading'. In that situation I am in no doubt that Parliament did not intend that the furnisher of the material could be charged with four separate offences. The act which attracts a penalty pursuant to s 129(2) is furnishing material in the manner and circumstances referred to where that material possesses one or other of the forbidden characteristics of being 'false' or 'misleading'. That being the case, only one offence is created by s 129(2).

One of the concerns underpinning the law in relation to duplicity is that a person convicted or acquitted of a charge which is duplex, may be denied the benefit of a plea autrefois acquit or autrefois convict. Once it is established that s 129(2) creates only one offence, that concern is overcome. An acquittal or conviction on a charge of furnishing material in contravention of the section will provide the accused full immunity from a further prosecution under the section.

It is, of course, proper and desirable for the prosecution to confine the charge as far as possible. If it is not asserted that the furnished material was both false and misleading, the charge should be limited to the particular forbidden characteristic relied upon. This course appears to have been taken in relation to a charge alleging a breach of s 129(1) in Ward (1989) 42 A Crim R 56. In that case, it was alleged that the material which was the subject of the charge was false. There was no allegation that it was misleading. Accepting that s 129(1) also only creates one offence, the eventual verdict against that accused would have enabled her to plead autrefois convict or acquit in the event that the Crown subsequently sought to lay a further charge alleging a breach of s 129(1) relying on the same material, but alleging that it was misleading.

I have not been referred to any authority which adverts to the proposition that a charge alleging that information or conduct was 'false or misleading' is duplex. In my experience, borne out by a cursory examination of the authorities, this allegation is commonly included in charges. I draw some comfort from this in relation to my conclusion that s 129(2) creates only one offence, and that the charges under consideration are not bad for duplicity [13] - [19].

70 The reference to O'Halloran and Harris in the magistrate's decision is in material part in the following terms (page 9):

Each of those authorities examines a particular statute whereby an offence of doing a particular act that is 'false or misleading' was alleged. Neither deals with section 33(1) of the Act or a statute that is in substantially the same terms. In each instance it was held that the intent of the relevant act was to create one, not two, offences. As a result the indictment in each instance was held not to be duplicitous..

71 In my view, it is correct, as his Honour may be indicating, and as I have already noted, that the question of duplicity is one, where the word 'or' is used in a provision like ACC Act s 33(1), not simply of whether or not different characteristics of one act are specified, but also of whether or not the specification of different characteristics should be taken as an indication of different offences or rather different characteristics of a single offence. In answering the latter question, it is necessary, as his Honour also appears to indicate, to consider the legislative intent, as O'Halloran and Harris illustrate.

72 However, in my view his Honour erred in the decision in not addressing that question by reference to ACC Act s 33(1) read in its statutory context in light of the lessons of authorities I have reviewed, including most particularly O'Halloran and Harris.

73 In my view, Cassell had no bearing on addressing that question. I note that Field, as quoted in Cassell (333) referred to what, as I have earlier indicated, has been treated as an aspect of the law as to duplicity, namely, uncertainty. However, Cassell was not a case concerned with an issue of duplicity in any aspect. Further, Cassell, so far as my research has indicated, has not been cited subsequently as a case on duplicity, except in the magistrate's decision. In particular, I note Cassell was not cited in O'Halloran, itself a decision of the same court.

74 In my view, Cassell, in the respect in which his Honour considered that authority, concerned an issue of statutory construction which his Honour appears to have accepted was not before him, that of whether or not the statutory provision in question in that case, Independent Commission against Corruption Act 1988 (NSW) s 87, employed 'or' in the phrase 'evidence that is, to the knowledge of the person, false or misleading in a material particular' conjunctively, to describe a single characteristic of the evidence that combined the two attributes, or disjunctively, to describe different characteristics of that evidence. In my view, the reference in Cassell 333 to s 87 as legislation that 'creates two offences' should be taken, on the other authorities to which I have referred, and especially Romeyko, to be to a provision setting out two different ways in which a single offence may be committed.

75 The authorities of O'Halloran and Harris strongly support the view that ACC Act s 33(1) when read in its legislative context was intended to create a single offence. Like the provisions in question in those two authorities, s 33(1) when so read may be seen to be directed to penalising misdirection of a protected interest or interests, thereby creating a single offence.

76 Corporations Law s 998 as I understand the reference to it in O'Halloran was concerned with misdirection of a securities market, while HI Act s 129(2) as I understand the reference to it in Harris was concerned with misdirection of the Commission.

77 ACC Act pt II div 2, in which s 33(1) appears, is concerned with 'Examinations', and begins with s 24A. That provision reads as follows:

24A Examinations

An examiner may conduct an examination for the purposes of a special ACC operation/investigation.

78 This provision should be read with ACC Act s 4(1) 'intelligence operation' and 'special ACC operation/investigation', as follow:

4 Interpretation

(1) In this Act, unless the contrary intention appears:

...

intelligence operation means the collection, correlation, analysis or dissemination of criminal information and intelligence relating to federally relevant criminal activity.

...

special ACC operation/investigation means:

(a) an intelligence operation that the ACC is undertaking and that the Board has determined to be a special operation; or

(b) an investigation into matters relating to federally relevant criminal activity that the ACC is conducting and that the Board has determined to be a special investigation.

79 In my view ACC Act s 24A, read with s 4(1) 'intelligence operation' and 'special ACC operation/investigation', indicates that s 33(1) is concerned with the misdirection of a 'special ACC operation/investigation' by evidence which is untrue or by evidence which, by being misleading, otherwise is capable of leading the operation/investigation into error.

80 On the authorities on duplicity, I consider that view indicates the legislative intent was by ACC Act s 33(1) to create a single offence.

81 It follows, in my view, that the charge in the present case was not bad for duplicity, and thus complied with CP Act sch 1 cl 2(4).

82 From the conclusion just described, I arrive at the further conclusion that the magistrate's decision was in error, and thus the magistrate's order should be set aside.

83 I will hear from the parties as to the further order or orders that should be made under MC Act s 36 so that the charge the subject of the order to be set aside may be dealt with, in terms of the review order, 'otherwise according to law'.