The Ambit of the Rule
76 What, then, is the ambit of the rule against duplicity? In Walsh v Tattersall, Kirby J encapsulated the rule, and its exceptions, in these words: (at 112)
"This Court should adhere to its longstanding insistence that, save for statutory warrant and for the exceptional cases of continuing offences or facts so closely related that they amount to the one activity, separate offences should be the subject of separate charges."
77 Here, there is no statutory warrant for aggregating in the one count a number of acts of intercourse. Indeed, the statute, it may be thought, clearly signals the reverse. The definition in s 61H(1) of "sexual intercourse" suggests that the Crown must identify each act of penetration, and make it the subject of a separate count (although it has a discretion not to charge every offence).
78 What is comprehended by the two exceptions, namely those offences which can be characterised as continuing offences, and matters where the facts are so closely related that they amount to the one activity? In respect of continuing offences, in Walsh v Tattersall, Gaudron and Gummow JJ said this: (at 91)
" … it may be observed that the present case is to be contrasted with those dealing with an offence defined in terms of a course of conduct or state of affairs, such as keeping a disorderly house or being a rogue or vagabond ( Loftus v Woodworth [1936] VLR 279). There, upon proof of a series of material facts, guilt of the offence may follow, although no particular fact suffices by itself."
79 Kirby J, in the same case, provided the following illustrations: (at 107)
"Particular problems arose for the application of the duplicity rule in the case of offences which, of their definition, were constituted by continuous activity. Such offences as keeping a brothel, required proof of particular acts at different times. Similarly, conduct which need not, but in some circumstances might, be constituted by activity over time could quite properly be charged in a single count. Instances where this qualification to the rule against duplicity has been upheld include cases involving charges of harassment ( Daly v Medwell (1986) 40 SASR 281) and trafficking in drugs ( Giretti and Giretti (1986) 24 A Crim R 112)."
80 An elaboration upon the other exception (matters which are, in truth, the one activity) was provided by Kirby J in these words: (at 107)
"If, for example, criminal acts occurred within a few minutes of time and in close physical proximity, could they be regarded as components of the one activity, so as to be susceptible to treatment as a single count ( Jemmison v Priddle [1972] 1 QB 489)? If the events were seen as part of the one transaction or criminal enterprise this approach has been held to be permissible in England ( Director of Public Prosecutions v Merriman [1973] AC 584 at 607). If a precise understanding of the charge laid, although evidenced by multiple acts, is that it represents a single crime, then a single count is permissible ( Montgomery v Stewart (1967) CLR 220)."
81 His Honour added: (at 108)
"Ultimately, what is presented is a question of fact and degree for decision in each case: Eades (1991) 57 A Crim R 151 at 156. 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 ( Weinel v Fedcheshen (1995) 65 SASR 156 at 170 per Perry J."
82 Here, the charges against the appellants could not be characterised as a continuous activity (cf Hamzy (1994) 74 A Crim R 341). If they fall within an exception, it is that the actions of the appellants may be regarded as so close in time and place that they were a composite activity.
83 In Morrow & Flynn (1990) 48 A Crim R 232, Connolly J (Macrossan CJ and Kelly SPJ concurring) said this, referring to the speech of Lord Morris of Borth-y-Gest in DPP v Merriman (1973) AC 584 at 592: (at 235)
"It is obvious that a knifing attack by one man who delivers a number of blows may properly be charged as a series of woundings but one must ask oneself whether this would be an application of common sense in terms of Lord Morris's speech. For my part I see no objection to charging the incident as one offence, provided always that it is clear what the offender is charged with. Similarly, a series of penetrations, by the same offender in the course of one sexual attack need not, in my judgment, be the subject of separate counts so long as they are not seen to be separate and distinct in time or circumstance. The first penetration may be interrupted by the victim's struggles or by a momentary apprehension of detection. It would of course be open in strict point of law to charge each penetration as a separate offence but scarcely consistent with the robust approach suggested by Lord Morris. In such a case I see no objection to charging one count of rape. On an indictment for attempted murder it may be proved that the prisoner knifed the victim two or three times and then pursued him down the street knife in hand. Technically the Crown could charge each knifing and the pursuit as separate offences of attempted murder. There can however be no objection to charging the whole episode as an attempted murder and indeed one has known this to be done. If Sperotto (1969) 71 SR (NSW) 334 decided to the contrary, it should not, in my respectful opinion, be followed."
84 In R v Blanch (CCA, unreported, 9 August 1994) the accused was charged with indecent assault of a child under the age of sixteen years. The allegations of the complainant were described by Badgery-Parker J in these words: (at 2)
"After she had gone to bed and before her mother returned home, the appellant came into her room, lay on top of her and moved up and down in an act which the learned trial judge said 'as described sounds rather like simulated intercourse'. She said that having first acted in that fashion he got up and left the room but returned and resumed the same activity. In all he repeated the act a number of times. She was not certain how many times but thought it was about five times."
85 The accused submitted that the Crown should have been required to elect as to which incident it relied upon. Dealing with that submission, his Honour said this (Studdert and Bruce JJ concurring): (at 3)
"… the short answer to the appellant's submission is that this is not a case of the kind dealt with in S v The Queen . That and the other cases upon which the appellant relies are distinguishable. The charge here related to a single night, indeed a single period of about one hour on that night, in the course of which the appellant was alleged to have engaged in a course of conduct which the Crown was content to charge as a single offence of indecent assault. It was open to it to do so."
86 His Honour added: (at 4)
"It would have been unfair and oppressive for the Crown to have brought four or five counts alleging as successive indecent assaults the component parts of what on any realistic view was a single episode."
87 That case was, of course, determined before Walsh v Tattersall.
88 Here, the acts of "sexual intercourse" (as defined) by each accused were separate and distinct. They each had a beginning, and an end. There were differences between the various acts of penetration (penetration by means of the bottle, the insertion of the penis in the complainant's mouth, and penile penetration of her vagina). In R v Nickel (CCA, unreported, 16 November 1988) the appellant had been charged with "sexual intercourse" within a very broad time frame. The complainant gave evidence of two separate acts of assault. One was said to have occurred in the bedroom, and the other in the kitchen. Gleeson CJ (with whom Lee CJ at CL and Allen J agreed) said this: (at 4)
"Without going into the detail of the evidence, it suffices to say that there was a rational basis upon which individual jurors ultimately could have concluded that either one of the alleged incidents occurred but not the other. For example, in considering whether the bedroom incident occurred, a juror could well have had a doubt by reason of the evidence of the complainant's mother, which in effect contradicted the complainant's account of that incident. In relation to the kitchen incident, a doubt could have arisen in the mind of an individual juror by reason of certain inconsistencies in evidence which the complainant had given about that matter."
89 Here, the complainant sustained significant injury. Individual jurors may, nonetheless, have seen an issue relating to whether she had given her consent in the initial stages. She acknowledged that she had kissed Mr Khouzame. She had consumed a whole bottle of wine. She denied, in cross examination, that she had done so to loosen her inhibitions. Her injuries, no doubt, made consent less of an issue in respect of later acts of intercourse (including the insertion of the bottle). Had there been separate charges, there was a rational basis upon which jurors could have discriminated between charges, and convicted the appellants on some, but not others.
90 I believe the charges, as framed, were bad for duplicity. The Crown should have been called upon to elect. Having not done so, the conviction is uncertain. It cannot be said that there was no substantial miscarriage of justice (S v The Queen (1989) 168 CLR 266, per Toohey J at 283, and Gaudron and McHugh JJ at