57 In Walsh v Tattersall, Kirby J conducted a thorough review of the origins of the principle of duplicity and what he described as modern relaxations of the strictness of the rule. In opening this discussion, his Honour at 92 - 94, stated:
The common law developed the rules of criminal proceedings for the protection of the liberty of the subject. It required that a person, accused of the commission of a crime, should be informed fully and precisely of the charges contained in the accusation. One rule which evolved from this general principle was the rule against duplicity. No count in any indictment, presentment, information or complaint might charge a person with the commission of more than one offence ….
The rule against duplicity in common law procedure may be traced in decisions of the courts in England at least as early as the 17th century. But in this century, and in this Court, it has been upheld and stringently applied in a consistent series of decisions …. The same strictness has been evident in the Federal Court of Australia … . It may also be seen in a number of decisions of State Supreme Courts and Courts of Criminal Appeal ….
In recent years, courts in England have embraced a less stringent approach to complaints about duplicity. They have done so by taking what they have described as a "practical" or "commonsense" approach and by rejecting what they have called "technicalities which have no relevance to modern procedure in criminal prosecutions" …. This approach has obtained a degree of support of some academic writers, impatient about the potentiality of the rule against duplicity to afford a technical refuge to an accused person otherwise lacking a case with substantive merits. The English authorities, and some of the impatience with technicality that lay behind academic criticisms, have lately led a number of Australian courts to depart from the rule of stringency suggested by the old line of authorities. In South Australia, the Merriman approach was favoured in Weinel v Fedcheshen (1995) 65 SASR 156. That decision was substantially embraced by the Full Court of the Supreme Court of South Australia in this case. (Walsh v Tattersalls (unreported, Supreme Court of South Australia; 2 November 1995).
Thus, behind the resolution of this appeal lies an important question of legal policy. Scholarly analysis of judicial decisions on this subject has produced scathing criticisms, suggesting a failure on the part of the judiciary to identify the applicable principles. Only by clarifying the essential reasons for the earlier stringent approach of this Court, for example in Johnson v Miller (1937) 59 CLR 467, will a coherent doctrine be found which can accommodate the "more modern" "practical" and "commonsense" rule but which is still appropriate to the accusatory character of criminal procedure in Australian courts.
58 In Walsh v Tattersall, an employee had been charged under workers' compensation legislation with obtaining, by dishonest means, payments or benefits made under that legislation. The relevant count related to payments made to the employee between October 1992 and October 1993. In mid 1993, the employee had been interviewed by the police who indicated that he would be charged with 30 offences under the legislation. In the course of this interview, the employee disclosed that he had, indeed, performed some work since 1992 but claimed that he had not been paid for it and had undertaken it to keep himself busy and his mind alert. In fact, the employee was charged with one count which involved numerous payments during 1992 - 1993. A complicating factor was that, after disclosing to the police that he had in fact been working since 1992, the payments continued to be made to the employee and these payments were covered by the periods specified in the charge. Before the Supreme Court of South Australia and in the High Court the employee submitted that he could not properly be called upon to plead to such a charge when there were so many separate payments involved including payments made after he had disclosed that he had been employed. The High Court, by a majority, held that the count should be quashed: Gaudron and Gummow JJ did so on the ground that the employee was not charged with any offence created by the Act because the section displayed an intention to create a discrete offence upon the receipt of any one payment or benefit, and by Kirby J on the ground that the count was bad for duplicity, the purpose of the provision being the creation of a separate offence for each payment or benefit.