The practice of using a single count in the circumstances mentioned is of long standing and should not be regarded as a recent development. Hamzy followed Merriman .
37 The minority of Dawson and Toohey JJ in their joint judgment held that the laying of a compendious charge did not produce duplicity. They applied the principles stated in Merriman. They saw the position thus, at 85:
"... it was not the case against the appellant that by dishonest means on various separate occasions he obtained payments and benefits under the Act. The dishonest means alleged against the appellant was a continuing false pretence between October 1992 and October 1993 by receiving payments on the basis that he was incapacitated for work."
38 In R v Hamzy (1994) 74 A Crim R 341, Hunt CJ at CL considered in some detail the use of a single count charging supply of a prohibited drug where it was intended to prove a number of individual acts of supply by the accused to different people at different times. It was held that this was permissible provided that these acts could fairly and properly be identified as part of the same criminal enterprise or the one criminal activity. The evidence showed that Hamzy was constantly involved in dealing in heroin. It was also held that it was permissible for the Crown to accumulate the amounts individually supplied where each act of supply could fairly and properly be identified as part of the same criminal enterprise in order to establish that a commercial or large commercial quantity had been supplied.
39 Hunt CJ at CL undertook a review of the authorities and followed a number of earlier decisions to the same effect by this Court. That judge, with whom Abadee and Simpson JJ agreed, noted that in Locchi (1991) 22 NSWLR 309 at 312 importance was attached to the breadth of the definition of "supply" in s3 of the Drugs Misuse & Trafficking Act 1985. He also noted that this Court had followed Merriman. It was held that the trial court had power to direct the Crown either to elect or to separate the offences where the indictment would otherwise produce an unfairness to the accused. Following Merriman, Hunt CJ at CL said that the trial judge should apply common sense and decide what is fair in the circumstances. Hunt CJ at CL said at 349:
"I see no reason why the concept of the one criminal enterprise or one criminal activity should be interpreted narrowly. Obviously enough, the fewer the number of individual acts, the fewer people and the shorter the period of time involved, the less likely that there could be any unfairness to the accused, but the issue of unfairness is dealt with separately from the issue as to whether the individual acts could fairly and properly be so identified. In the present case, it would have presented a totally unreal picture of the activities alleged against the appellant if anything less than the total picture had been presented to the jury. According to the evidence, the appellant was constantly involved in the one criminal enterprise of dealing in heroin. Even if the individual acts of supply had been divided up into different counts, each count relating to the acts of supply to a different Crown witness, there would have been no real justification for separate trials relating to each count. Again, a totally unreal picture would have been presented. And, as the defence was one of denial of any involvement in the supply of heroin, the evidence of similar facts may well have been admissible in any event to meet the attempted exculpatory explanations by the appellant for the presence of the different Crown witnesses at his home. "
40 The appellant stressed that the Chief Judge had recognised that the fewer the number of individual acts, the fewer people and the shorter the period of time involved, the less likely there would be unfairness. She also stressed that there was but one defence. However, Hamzy involved a twenty month period and a large number of witnesses and frequent dealing in heroin.
41 Hamzy was followed and applied in R v Velardi, where there was a single charge covering complicity in several acts of supply of cannabis leaf. Allen J, with whom Gleeson CJ and James J agreed, said:
"The law is settled that where the various acts of 'supply' can fairly and properly be identified as part of the same criminal enterprise of supply, the one activity, it is permissible for the indictment to charge the single offence of supply notwithstanding that, in proving it, the Crown intends to rely upon each such individual act of supply. A charge so preferred is not duplicitous, provided the case as put to the jury, is that the Crown does rely upon all the individual acts to establish the single enterprise of supply."
42 Obviously, as Hunt CJ at CL pointed out in Hamzy, the Crown does not have to establish every such act in order to succeed.
43 In R v Trad & Younan (19 February 1996, NSW Court of Criminal Appeal, unreported), this Court in the joint judgment of Gleeson CJ, Badgery-Parker and Abadee JJ applied Hamzy. The appellants were charged between 5 and 16 July 1992 of money laundering in that they did possess and dispose of money, knowing the same to be the proceeds of a serious offence, namely the theft of $340,000 on 5 July 1992 at Punchbowl. The Court stated that the issued involved was similar to one considered by the Court in the context of the definition of "supply". The Court stated that in the United States in relation to money laundering legislation, it has been held permissible to charge a single offence involving a series of deposits, wire transfers and credit transactions: United States v Awan (5 December 1989, MD Fla, unreported) referred to in The Money Trail, Fisse, Fraser & Coss, Law Book Co, 1992 at p385. In that case, the Court pointed out that a single count is not duplicitous merely because it contains allegations that could have been stated as separate offences. The joint judgment applied Merriman, noted that there was no unfairness, embarrassment or surprise and that the appellants had no difficulty in understanding the nature of the case they had to meet or in framing their defence.
44 In F (1996) 90 A Crim R 356, the offence was knowingly take part in the supply of prohibited drugs. Upon one interpretation of the Crown case, the Court referred to a number of acts of actual supply for which the premises were suffered or permitted to be used.
45 Hunt CJ at CL, with whom Ireland J and Bell AJ agreed, was not persuaded that the High Court by its decision in Walsh v Tattersall overruled this Court's decision in Hamzy. The Chief Judge thought that Hamzy should continue to be followed by the courts in New South Wales until the High Court gave a decision accepting or rejecting the approach taken in Merriman.
46 In R v Giam [1999] NSWCCA 53, the appellant was convicted on six counts of offences against s178BB of the Crimes Act 1900 of making a false statement with intent to obtain a financial advantage. Nothing turned on any difference amongst the six charges. In each case, there was the same conduct and the same alleged legal defect of duplicity. The false statement was that the appellant "was secretary (of the identified companies") and that he had been authorised to enter into such an arrangement". The case was left to the jury on the basis that there were two statements and that the jury could find the appellant guilty if he had made one or both of those statements, such statement or statements were false and made with the requisite intent. The two statements were, firstly, he was the secretary, and secondly that he was authorised to enter into the specified arrangements.
47 Spigelman CJ, with whom Abadee and Adams JJ agreed, attached great weight to Walsh v Tattersall. He held that in s178BB of the Crimes Act the words "any statement" referred to a single statement and that on the facts Giam was not a case where a single statement was constituted from more than one utterance or representation. Giam was in substance undistinguishable from Walsh v Tattersall. Spigelman CJ commented that the doctrine of duplicity plays a number of different roles and performs a number of different functions. One of these is ensuring that a sentencing judge has a clear indication as to the facts that have been found on the elements of the crime.
48 In Giam, it was not necessary to refer to Hamzy, Velardi and F because the case was covered by Walsh v Tattersall. Further, Giam was not an enterprise case.
49 In Taylor v The Queen (1997) 93 A Crim R 1 Taylor was charged pursuant to s29D of the Crimes Act with three counts of defrauding the Commonwealth. The counts covered the periods November 1984 to June 1986, June 1986 to December 1992 and January 1993 to 20 May 1993. In each it was alleged that she obtained payment of a sole parent pension to which she was not entitled. The Crown alleged that on thirty-one separate occasions Taylor dishonestly made false claims, stating, in effect, that she was living separately from her husband.
50 As has often been said, duplicity is a matter of form, not evidence. At 11-12, Underwood J observed that s29D does not create a separate offence for each payment but held that the indictment and particulars did not plead that there had been a continuous deceitful failure to disclose the true state of affairs but focussed on precisely identified false representations, each made with the intention of obtaining a benefit. As pleaded, the case required the jury to decide with respect to each statement, whether it was false at the time it was made.
51 Zeeman J pointed out that the charges relied on misrepresentations made by the appellant at various times and in various documents. The particulars furnished did not suggest that the Crown relied on any ongoing failure to advise but on specific statements made by her in various documents and those statements were misleading. He concluded that the Crown alleged thirty-one separate deceits by Taylor and thirty-one acts of defrauding. On this reasoning each should have been the subject of a separate count. Zeeman J thought that such a result followed whether the reasons of Kirby J in Walsh v Tattersall applied or those of Dawson and Toohey JJ. The latter said:
"But the case against the appellant was not that on each occasion he received a payment there was a separate dishonest pretence that he was incapacitated for work. That is a case that the prosecution might have sought to make out. If it had, the count would have alleged the commission of a number of offences ... . But it would have been a different case to the one which the appellant faced."