S v The Queen

High Court of Australia|1980-01-01|Before: McHugh JJ, Brennan J, Smith JJ, Kennedy J

High Court of Australia Brennan, Dawson, Toohey, Gaudron and McHugh JJ. S v The Queen [1989] HCA 66

ORDER Application for special leave to appeal granted. Appeal allowed. Set aside the orders of the Court of Criminal Appeal of Western Australia. In lieu thereof order that the appeal to that Court be allowed, that the convictions be quashed and that there be a new trial.

The applicant was convicted before the District Court of Western Australia on three counts of incest with his daughter. The daughter gave evidence that, from the age of nine or ten, her father had engaged in sexual acts with her and that, as she grew older, he went further until he had sexual intercourse with her when she was aged about fourteen. Her fourteenth birthday was in November 1979. She said that he had intercourse with her thereafter until she left home in February 1983, when she was aged seventeen. She described the initial act of a sexual kind which he committed with her and the first occasion when he had sexual intercourse with her. Her evidence of these events was given in general terms. After describing the first occasion when he had intercourse with her, her evidence continued:

After that first occasion, were there any further acts of intercourse? - Yes. There were further acts but I cannot remember all the details of them or when they were. I have blanked them out.

Is there any particular reason why you can't remember the exact details? - I have blanked them all out, tried to forget them.

But do you know over what period of time they continued? - They would have been over the next two years.

Until what age? - Until I left home at seventeen.

Are you able to tell the members of the jury how often during those years until you left home such acts occurred? - Actual sexual intercourse wasn't too often, but it was a couple of times.

A couple of times every how often? - Every couple of months for a year.

She also gave evidence that on some occasions her father used to put on her mother's underpants and slips and that the first occasion he did this was an occasion when he had intercourse with her.

The Crown presented an indictment in the District Court of Western Australia at Perth charging the applicant on three counts of incest: the first "[o]n a date unknown between the 1 January 1980 and the 31 December 1980", the second "on a date unknown between the 1 January 1981 and the 31 December 1981" and the third "on a date unknown between the 8 November 1981 and the 8 November 1982". Before the trial commenced counsel for the applicant sought particulars of the charge to which each count in the indictment related. The application was refused by the Crown and the trial judge declined to make any order. The Crown's position was stated by the prosecutor:

The Crown is alleging that in each of those three years there was one act of sexual intercourse by the accused with the girl in question which constitutes the alleged offence. It can't be particularised as to any particular month and that is why it is pleaded in each count on a date unknown between the beginning of the year and the end of the year. When Your Honour has regard to the fact that the defence has had available to it the full depositions which set out exactly the testimony which the girl is to give, Your Honour will observe that really the girl was quite young at the time; that she has recounted that there were continual acts of sexual intercourse over those three years and the Crown has elected to charge one in each year. None of the counts was linked to either of the specific acts of intercourse mentioned by the daughter in evidence. The evidence was equivocal as to whether the first act of intercourse took place before or during the period mentioned in the first count in the indictment. The act which occurred when the applicant allegedly first donned women's clothes was not attributed to any one of the periods mentioned in the three counts in the indictment. The Crown case was simply that an incestuous relationship existed during each of the periods mentioned in the three counts, but the acts of intercourse constituting the alleged incestuous relationship were not distinguishable one from another save as to the different occasions of their occurrence. When the trial judge came to sum up he directed the jury: "You have to be satisfied beyond reasonable doubt that at least on one occasion during each of these years there was such penetration." The jury having convicted on all three counts, the applicant's appeal was dismissed by a majority of the Court of Criminal Appeal (Brinsden and Smith JJ., Kennedy J. dissenting).

The applicant's argument in support of the application for special leave to this Court rested on the proposition that, where a count in an indictment alleges one specific offence, it is not open to the Crown to lead evidence of a number of acts which amount to the actus reus and then to invite the jury to convict on any one of the acts led in evidence. Although each count in the indictment was regular on its face, it referred indifferently to a number of acts of intercourse indistinguishable one from another save as to the different occasions of their occurrence. The facts thus disclosed that, in each count, there was a latent ambiguity which was not removed by particulars, nor by an election by the prosecution to proceed on a particular act falling within the period specified in the count, nor by construing the count as relating to the first of the offences committed within the specified period (as Jacobs J. suggested in Mackay v. The Queen [1] ). To allow the trial to proceed without confining each count to a single act of intercourse was an error of law which, subject to the proviso in s. 689(1) of the Criminal Code W.A., entitled the applicant on appeal to an order quashing the conviction: Parker v. Sutherland [2] ; Johnson v. Miller [3] .

(1977) 136 C.L.R. 465, at p. 472. 2. (1917) 116 L.T. 820. 3. (1937) 59 C.L.R. 467.

However, the proviso to s. 689(1) authorizes the Court of Criminal Appeal not to make such an order where there has been no substantial miscarriage of justice. Whether there has been a substantial miscarriage depends on the actual circumstances of the case. In a case similar to the present, R. v. Thompson [4] , an enlarged bench of the Court of Criminal Appeal considered the problems of uncertainty and duplicity in an indictment charging a father with an act of incest with his daughter during two consecutive periods, one of twenty-one months, the other of twenty-nine months. Isaacs C.J., speaking for the Court, assumed that the appellant could have moved in arrest of judgment but nevertheless held that no substantial miscarriage of justice had occurred. His Lordship said [5] :

One of the objects of s. 4 [of the Criminal Appeal Act 1907 U.K.] was to prevent the quashing of a conviction upon a mere technicality which had caused no embarrassment or prejudice. Whilst giving the right of appeal upon any wrong decision of any question of law, the object of the Legislature was that justice should be done in spite of a wrong decision and that the Court should not interfere if it came to the conclusion that, notwithstanding the wrong decision, there had been no substantial miscarriage of justice. The Court concluded that there was no substantial miscarriage of justice because the failure to identify a single act of intercourse as the act charged in the indictment caused no embarrassment or prejudice at the trial "inasmuch as in the depositions and during the trial offences were proved on specific dates of which the appellant had had ample notice, and for which the defence was fully prepared": [6] . In R. v. Conley [7] , the applicant in a Crown Case Reserved was convicted on an indictment charging unlawful carnal knowledge of a girl "in the month of July 1915", the evidence revealing four or five acts of intercourse during that month. The authority of the case on some points has been overtaken by the judgment of this Court in Johnson v. Miller but the Full Court, holding the proviso to be applicable to Crown Cases Reserved, noted that the applicant "was not embarrassed or prejudiced at the trial". 1. [1914] 2 K.B. 99; (1913) 9 Cr. App. R. 252. 2. [1914] 2 K.B., at p. 105; (1913) 9 Cr. App. R., at p. 260. 3. [1914] 2 K.B., at p. 103; (1913) 9 Cr. App. R., at p. 258. 4. [1916] V.L.R. 639.

In considering the application of the proviso, it is erroneous to conjure up fanciful possibilities of embarrassment or prejudice. The proviso prevents the frustration of the basic intent of the criminal appeal statute which, in the absence of the proviso, might plunge "the administration of the criminal law into outworn technicality": Driscoll v. The Queen [8] , per Barwick C.J. What embarrassment or prejudice resulted from the error of law in this case? It is not suggested that the applicant was not fully aware of the evidence to be called in the Crown case. There was no prejudice to be found in the admission of evidence. As in Thompson , evidence of the entire incestuous relationship was admissible on the trial whether the indictment charged one offence or several: R. v. Ball [9] ; Martin v. Osborne [10] . The applicant was not prejudiced in countering the allegations. Had the applicant wished to impugn the imprecise evidence of the daughter relating to any of the intermittent acts of intercourse of which she spoke, he could have done so with as much (or as little) effect whether or not each of the counts in the indictment had been confined to a single act. The artificiality of any suggestion of prejudice is apparent if one postulates the manner in which the Crown might have given particulars which would have confined each count to a single act. The particulars could not have furnished the date and time of the act selected; the particulars would have consisted in no more than a selection of the first act (or the second, third, fourth, fifth or sixth act) of intercourse within a relevant period. There was nothing distinctive about the evidence of any act by which to differentiate it from any other occurring within the periods specified in the indictment apart from the order of its occurrence. If there was embarrassment, it consisted in the lack of specificity in the evidence; not in the latent ambiguity or duplicity of the counts in the indictment. The case is not comparable with Johnson v. Miller where each set of facts to which the information in that case might have related opened the way to a distinct defence: see per Dixon J. [11] .

(1977) 137 C.L.R. 517, at p. 527. 2. [1911] A.C. 47. 3. (1936) 55 C.L.R. 367, at pp. 394-396. 4. (1937) 59 C.L.R., at p. 490.

It is, in my respectful view, fanciful to suggest that the verdict could have been returned because some jurors were satisfied that one act of intercourse occurred, others that another act occurred and others again that a third act occurred within a relevant period. The real choice for the jury was to be satisfied or not to be satisfied that the series of incestuous acts occurred. The jury could not have found that a particular act in the series occurred but another did not. There was nothing by which the jurors might have distinguished between one act and another. I am also unable to accept the suggestion that there is some prejudice to the applicant in his supposed inability to plead autrefois convict if he should be charged hereafter with an act of intercourse falling within a relevant period. The terms of the present conviction, if drawn up conformably with the indictment, would comprehend any act of intercourse committed within the relevant period. By proving that conviction, the applicant would discharge the evidentiary onus of proving the identity of any offence which might be charged in respect of a period with the offence of which he has now been convicted in respect of the same period and the Crown would have to show that the offence with which he is then charged is an offence other than the offence for which he has been convicted: R. v. Parry [12] . That would be an impossible onus for the Crown to discharge. If the Crown were hereafter to charge two offences within the same period - a course which is not realistically to be contemplated - it may be that the applicant could assign his conviction to whichever offence he chooses. In any event, there is no risk of a double conviction if only one act of intercourse occurred.

In these particular circumstances, though the point taken is good in law, the error in allowing the trial to proceed without particulars caused no substantial miscarriage of justice. As this was the only error relied on in this Court, it is impossible to say that the Court of Criminal Appeal ought to have allowed the appeal. We are not called on to consider whether the evidence was sufficient to support the verdict. I would grant special leave to appeal as the application of the proviso in a case to which Johnson v. Miller [13] applies is a question of some importance, but I would dismiss the appeal.

The indictment upon which the applicant was presented for trial contained three separate counts of incest. None of the counts specified the day upon which the act of incest was alleged to have occurred; in each instance the act was alleged to have taken place upon a date unknown during a twelve-month period. Thus the first count alleged one act of incest between 1 January 1980 and 31 December 1980, the second alleged one act between 1 January 1981 and 31 December 1981 and the third alleged one act between 8 November 1981 and 8 November 1982. This form of pleading is quite proper where the date is not an essential part of the alleged offence and, of itself, does not render a count bad for insufficiency of particulars.

However, before the applicant was arraigned, his counsel sought particulars of each of the three counts and sought an adjournment to enable those particulars to be supplied. In making his application, counsel for the applicant identified the problems which were likely to emerge, namely, that if the evidence called by the prosecution revealed more than one offence during each of the three years in question it would not be possible to say which of the offences was the one alleged. The learned trial judge, however, declined to order particulars and did not accede to the application for an adjournment.

The situation envisaged by counsel for the applicant was that which eventuated. The evidence of the applicant's daughter, who was the complainant, disclosed numerous acts of intercourse. She said that the first act of intercourse took place in "about 1979, '80" when she was fourteen years of age. The complainant was born on 8 November 1965. Thus the first act of intercourse which she alleged may or may not have taken place during the period of one year alleged in the first count. The complainant said that acts of intercourse continued over the next two years until she left home at the age of seventeen years. Her examination in chief continued:

Are you able to tell the members of the jury how often during those years until you left home such acts occurred? - Actual sexual intercourse wasn't too often, but it was a couple of times.

A couple of times every how often? - Every couple of months for a year.

By the last answer the complainant evidently meant that intercourse occurred every couple of months during each of the three years, but she was unable to be more specific than that. The only two acts of intercourse which the complainant was able to describe in more detail were the first, which, as I have said, may or may not have occurred during the first period of one year and another act, which the complainant could not ascribe to any period, which occurred when the applicant was alleged to have put on some of his wife's clothing.

Thus, notwithstanding that each count in the indictment charged the applicant with one offence only, the evidence revealed a multiplicity of offences with nothing to identify any one of them as the offence with which the applicant was charged in any particular count. No application was made that the prosecution be put to its election for the purpose of identifying the specific occasions upon which it relied as constituting the offences in question, nor did the trial judge put the prosecution to its election. Instead, he left it to the jury "to determine whether on the three occasions cited in the indictment, the accused did have carnal knowledge of his daughter ". The indictment, of course, did nothing to specify which of the multiple acts of intercourse were those alleged to constitute the offences with which the applicant was charged. The applicant was convicted upon all three counts.

As I have said, the three counts in the indictment were framed in a permissible way. Each charged only one offence and gave rise to no duplicity. Had the evidence revealed only one offence in each of the years in question, there could have been no complaint about the form of the indictment. But the evidence disclosed a number of offences during each of those years, any one of which fell within the description of the relevant count. Because of this there was what has been called a "latent ambiguity" in each of the counts: see Johnson v. Miller [14] , per Dixon J. That ambiguity required correction if the applicant was to have a fair trial.

The material before us does not reveal whether the ambiguity was apparent by reference to the depositions at the time that the applicant made application for particulars. If it was, it may have been appropriate for the trial judge to have ordered that particulars be given identifying the offences charged, if not by reference to time, by reference to other distinguishing features. If at that stage such a course was inappropriate and it was necessary for the prosecution to call its evidence for the precise nature of the defect in the proceedings to emerge, the prosecution ought to have been required as soon as the defect became apparent to elect by indicating which of the offences revealed by the evidence were the offences charged. In some cases (although not, it would seem, the present one) the ambiguity may be removed by an amendment of the indictment splitting a count into several counts or by adding further counts so as to distinguish the separate occasions alleged. Such an amendment may only be allowed if it does not cause injustice or prejudice to the accused and that generally means that it cannot be made during the course of a trial: Radley [15] . The power of a court to impose the appropriate requirement in order to secure a fair trial and protect its process from abuse will ordinarily be either implied or inherent: see Tucker v. Noblet [16] ; Johnson v. Miller [17] ; Grassby v. The Queen [18] .

(1973) 58 Cr. App. R. 394, at p. 403. 2. [1924] S.A.S.R. 326, at p. 340. 3. (1937) 59 C.L.R., at pp. 488-489. 4. (1989) 168 C.L.R. 1, at pp. 15-19.

There was, I think, obvious embarrassment to the applicant in having to defend himself in relation to an indeterminate number of occasions, unspecified in all but two instances, any one of which might, if it occurred in one of the relevant years, constitute one of the offences charged. There was the additional embarrassment that the years in the second and third counts overlapped so that if an occasion fell within the overlapping period it was not possible to determine whether it was an offence charged by count two or by count three.

The occasions upon which the offences alleged took place were unidentified and the applicant was, in effect, reduced to a general denial in pleading his defence. He was precluded from raising more specific and, therefore, more effective defences, such as the defence of alibi. Because the occasions on which he was alleged to have committed the offences charged were unspecified, he was unable to know how he might have answered them had they been specified. It is not to the point that the prosecution may have found it difficult or even impossible to make an election because of the generally unsatisfactory evidence of the complainant. An accused is not to be prejudiced in his defence by the inability of the prosecution to observe the rules of procedural fairness.

Not only was the applicant embarrassed in putting his defence, but as the prosecution was not put to its election, the trial proceeded in a manner which made it impossible to deal with questions of the admissibility of similar fact evidence: see Johnson v. Miller [19] ; Parker v. Sutherland [20] . True it is that evidence of acts of intercourse other than those charged may have been admissible as similar facts of sufficient probative force to warrant their admission in evidence. I attempted to explain in Harriman v. The Queen [21] that when such evidence is admitted in a case of this kind its relevance is said to lie in establishing the relationship between the two persons involved in the commission of the offence, or the guilty passion existing between them, but it is in truth nothing more than evidence of a propensity on the part of the accused of a sufficiently high degree of relevance as to justify its admission. Cf. R. v. Ball [22] . Obviously that high degree of relevance can only occur where the evidence of propensity is related to a specific offence upon an identified occasion. If no occasion is identified, the necessary relationship cannot exist. In this case, where there was a failure to identify the occasions upon which the offences charged took place, the whole of the evidence was, in effect, evidence of propensity which could not be related to the offences charged because of the lack of identification of those offences. In other words, the prosecution case sought to go no further than to establish that an incestuous relationship existed between the applicant and his daughter - which is to do no more than establish a particular kind of propensity - and to assert the guilt of the applicant upon three unspecified occasions during the existence of, and upon the basis of, that relationship. Far from establishing the necessary high degree of relevance, to proceed in this way was to obtain the conviction of the applicant upon evidence of propensity unrelated to a specific offence upon an identified occasion. Such a course was clearly objectionable.

(1937) 59 C.L.R., at pp. 489-490. 2. (1917) 86 L.J.K.B. 1052, at p. 1054. 3. (1989) 167 C.L.R. 590. 4. [1911] A.C. 47.

The case having proceeded as it did, it is theoretically possible that individual jurors identified different occasions as constituting the relevant offences so that there was no unanimity in relation to their verdict. That, of course, would be unacceptable, but it is more likely that the jury reached their verdict without identifying any particular occasions. Indeed, that is virtually inevitable because no means were afforded the jury whereby they could identify specific occasions. As I have indicated, such a result is tantamount to their having convicted the applicant, not in relation to identifiable offences, but only upon the basis of a general disposition on his part to commit offences of the kind charged.

Moreover, the law requires that there be certainty as to the particular offence of which an accused is charged, if for no other reason than that he should, if charged with the same offence a second time, be able to plead autrefois convict or autrefois acquit. It was submitted that s. 17 of the Criminal Code W.A. would enable the applicant to plead autrefois convict in relation to any offence which might have been taken by the jury to be one of the three offences specified in the three counts. Section 17 provides:

It is a defence to a charge of any offence to show that the accused person has already been tried, and convicted or acquitted upon an indictment on which he might have been convicted of the offence with which he is charged, or has already been acquitted upon indictment, or has already been convicted, of an offence of which he might be convicted upon the indictment or complaint on which he is charged. As I understand the submission, it is that, because the applicant may have been convicted in relation to any one of a number of occasions within each of the three periods referred to in the three counts, if he were subsequently charged with an offence constituted by one of those occasions, he would be able to plead that it was an offence of which he might have been convicted upon the indictment in question in this case. The relevant purpose of s. 17 is, however, to cover alternative verdicts available at common law or by statute: see O'Halloran v. O'Byrne [23] . It is not intended to apply in the circumstances of this case. Nor would it do so. If the applicant were simply to be charged with another offence of carnal knowledge of the complainant within one of the periods specified in the indictment upon which he was convicted, uncertainty might exist whether the offence charged was the same as one of the offences of which he was convicted. But that uncertainty would be removed, if by no other means, by charging him with an offence expressed to be other than the one of which he was convicted. The defect of ambiguity in the present case would be continued in the subsequent proceedings and a plea in bar would be no answer. 1. [1974] W.A.R. 45, at p. 47.

There have been cases in which it has been held that latent ambiguity or even duplicity in an indictment does not necessarily lead to a substantial miscarriage of justice: see R. v. Thompson [24] ; R. v. Smythe & Blanton [25] ; R. v. Conley [26] ; Coleman and Del Carlo v. The Queen [27] . But in those cases either no embarrassment or prejudice was alleged or no point was taken at the trial. In any event, the earlier cases must be read subject to the decision of this Court in Johnson v. Miller in which it was held that a complaint was rightly dismissed because of the failure of the prosecution to cure a latent ambiguity by identifying the one transaction out of a number upon which it relied. The offence in that case was a summary offence, but the observations of Dixon J. [28] , are of general application. He said:

In my opinion he [the prosecutor] clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. The court hearing a complaint or information for an offence must have before it a means of identifying with the matter or transaction alleged in the document the matter or transaction appearing in evidence. 1. [1914] 2 K.B. 99. 2. (1912) 8 Tas. L.R. 28. 3. [1916] V.L.R. 639. 4. [1988] W.A.R. 196. 5. (1937) 59 C.L.R., at p. 489.

At all events, where there is real ambiguity and the point is taken, as it was in this case, failure to correct the ambiguity means that the accused has not had a proper trial and there is, for that reason, a substantial miscarriage of justice which precludes the application of the proviso contained in s. 689 of the Code. It is, therefore, unnecessary to consider whether, had the applicant been properly tried, he would inevitably have been convicted. He was entitled to a fair trial and his conviction in proceedings which were fundamentally flawed cannot be sustained: Wilde v. The Queen [29] .

I would grant special leave, allow the appeal, quash the convictions and order a retrial.

The circumstances giving rise to this appeal are set out in the judgments of other members of the Court. There is no need to repeat in any detail what is said there.

Before us, counsel for the applicant made it clear that there was no attack on the indictment; in particular, it was not contended that the indictment was bad for duplicity. There were three counts. Each alleged an act of carnal knowledge "on a date unknown", "at Balcatta". The first count referred to the period between 1 January and 31 December 1980, the second between 1 January and 31 December 1981, and the third between 8 November 1981 and 8 November 1982. It will be seen that there was an overlap of nearly two months between the periods specified in the second and third counts.

Section 582 of the Criminal Code W.A. requires an indictment to "set forth the offence with which the accused person is charged in such a manner and with such particulars as to the alleged time and place of committing the offence as may be necessary to inform the accused person of the nature of the charge". In Reg. v. Phil Maria [30] , Stanley J. said of the Queensland counterpart of s. 582: "In my opinion, the Code aims at continuing the common law practice - one charge, known to the accused, with particulars if needed, giving every fair opportunity to prepare his defence to what is charged and particularised against him."

The Crown declined to furnish particulars of the charges against the applicant. An application for particulars to the trial judge was refused, his Honour accepting the argument of the Crown that no better particulars could be furnished. Before the committal proceedings, the applicant knew little more of what was alleged against him than that on an unspecified occasion in each of the twelve-monthly periods identified he had carnal knowledge of his daughter. At trial, he was of course somewhat better informed by reason of the committal proceedings, at which the complainant gave evidence.

Nevertheless, as already mentioned, the applicant's argument in this Court was not directed to the indictment. The argument was that each count alleged a separate offence but that the Crown was permitted to lead evidence of a number of acts, each of carnal knowledge of the complainant, and that the jury were invited to convict the applicant so long as they found proved any act of carnal knowledge within the period specified. Thus the argument focused on the manner in which the trial was conducted.

In her evidence the complainant identified two specific acts of intercourse with the applicant, one being the "first occasion" such an act occurred, which was when the complainant was at high school, and the other being the initial occasion of several when the applicant put on his wife's underclothing. The first occasion was identified, by reference to the complainant's schooling, as having occurred in 1979 or 1980. The other occasion was not identified, even as to year. The complainant also gave evidence of other acts of sexual intercourse on unspecified occasions, including "Every couple of months for a year." The closest the complainant came to identifying times was after she described the "first occasion" and then said, in regard to other acts of intercourse, "They would have been over the next two years."

Objection was taken at trial to evidence concerning other acts of an indecent nature, but not to the generalized evidence of intercourse between the applicant and complainant. Therefore it is not possible to identify with certainty the basis on which the latter evidence was admitted. While evidence of similar facts ordinarily involves conduct relating to persons other than the complainant, it is not necessarily so confined. In R. v. Ball [31] where a brother and sister were each charged with counts of incest, evidence was admitted to show that they had previously lived together as husband and wife and that the female defendant had given birth to a child which she registered, describing herself as the mother and the male defendant as the father. Lord Loreburn L.C., with whom the other members of the House of Lords agreed, applied Makin v. Attorney-General (N.S.W.) [32] in upholding the admissibility of the evidence of the earlier relationship. However, evidence which bears on the relationship between an accused and a complainant over a period of time may not in truth be similar fact evidence where it is admitted, not to show propensity but rather the relationship between the parties: see the discussion by McHugh J. in Harriman v. The Queen [33] .

[1911] A.C. 47. 2. [1894] A.C. 57. 3. (1989) 167 C.L.R. 590.

In the present case, the real difficulty with treating the generalized evidence as evidence of similar facts or relationship is the problem of identifying the alleged offence on which the similar conduct or relationship is said to bear. As the evidence unfolded at trial, there was nothing to indicate that, in respect of each year, the Crown relied upon a particular act which was the culmination of other such acts. In that sense there was no chronology of events. It is true that a particular occasion was identified by the complainant, if only as the first time intercourse occurred. But while that act of intercourse may have occurred within the period identified in the first count, on the complainant's testimony it may equally have occurred in 1979. And it is not possible to say of the other specific act identified by the complainant (the first occasion when the applicant had carnal knowledge of her while dressed in his wife's underclothing) that it occurred in any, and if so which, of the three periods specified in the indictment. Nor is it possible to fit any of the other occasions mentioned by the complainant within a specific time frame referred to in the indictment.

In the course of his direction to the jury, the trial judge said:

you have to view the three charges as three separate trials and you must come to a separate finding in relation to each of the three charges You must give consideration to each separate charge and come to a separate verdict on each charge. Later his Honour referred to "a lack of specificity as to dates" and the length of each period involved, commenting, "the Crown says there were acts, at least one act, in each of those periods. You must be satisfied to that."

At the end of his summing up his Honour repeated the need for the jury "to determine whether on the three occasions cited in the indictment, the accused did have carnal knowledge of his daughter". His Honour did not say what the three occasions were or what they might be and, of course, the Crown had consistently declined to identify those occasions. Earlier the trial judge had told the jury that they had to be "satisfied beyond reasonable doubt that at least on one occasion during each of these years there was such penetration", a reference to the penetration necessary to constitute carnal knowledge, but again without attempting to identify any of those occasions. No redirection was sought by the applicant's then counsel.

The indictment was not open to challenge on the ground of duplicity in the ordinary sense of that term. It did not offend against the proscription, as expressed in Archbold, Pleading, Evidence and Practice in Criminal Cases, 43rd ed. (1988), p. 46, that "no one count of the indictment should charge the defendant with having committed two or more separate offences". Nor, subject to the question of particulars, was it in breach of s. 582 of the Code.

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. The problem was recognized as early as 1735 in R. v. Robe [34] "and for this fault the judgment was arrested" [35] . See also Davy v. Baker [36] ; Young v. The King [37] and generally Chitty's Criminal Law, 2nd ed. (1826), vol. 1, pp. 168-169. The problem was adverted to again in Parker v. Sutherland [38] , though emphasis was placed on the difficulty of pleading autrefois convict because of doubt as to the particular offence of which the offender had been convicted: see Viscount Reading C.J. [39] , and Avory J. [40] . I do not think that such a difficulty truly arises in the present case. Section 17 of the Code reads:

It is a defence to a charge of any offence to show that the accused person has already been tried, and convicted upon an indictment on which he might have been convicted of the offence with which he is charged, or has already been convicted, of an offence of which he might be convicted upon the indictment on which he is charged. 1. (1735) 2 Str. 999 [93 E.R. 993]. 2. (1735) 2 Str., at p. 999 [93 E.R., at p. 994]. 3. (1769) 4 Burr. 2471 [98 E.R. 295]. 4. (1789) 3 T.R. 98, at p. 100 [100 E.R. 475, at p. 477]. 5. (1917) 86 L.J.K.B. 1052. 6. (1917) 86 L.J.K.B., at p. 1054. 7. (1917) 86 L.J.K.B., at pp. 1054-1055.

The operation of s. 17 was discussed by Wickham J. in O'Halloran v. O'Byrne [41] . The applicant has been convicted of the offence that he "carnally knew" his daughter at Balcatta on an occasion during each of the periods specified in the indictment. If he were later charged with an offence of carnally knowing his daughter at Balcatta during any one of those periods, the very absence of specificity in the indictment would ensure that the concluding words of s. 17 would support a plea of autrefois convict: cf. Jones v. The Queen [42] . This would be so even if the applicant were later charged with two or more counts in any of the periods identified in the original indictment.

[1974] W.A.R. 45, at pp. 51-53. 2. [1980] W.A.R. 203, at p. 204.

But the problem of uncertainty in knowing the charge to be met still remains. This issue was considered by Dixon J. in Johnson v. Miller [43] , when his Honour said:

the question is whether the prosecutor should not be required to identify one of a number of sets of facts, each amounting to the commission of the same offence as that on which the charge is based. In my opinion he clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. 1. (1937) 59 C.L.R. 467, at p. 489.

Of course this does not mean that the prosecution must specify a particular date as the occasion on which it relies. But it does mean that, as soon as it appears that a count in the indictment is equally capable of referring to a number of occasions, each of which constitutes the offence the legal nature of which is described in the count, the prosecution should identify the occasion which is said to give rise to the offence charged. This did not happen in the present case nor did the trial judge adequately convey to the jury the difficulties facing the applicant by reason of the failure to do so. The matter was left to the jury on the basis that so long as they were satisfied an act of carnal knowledge occurred during a period specified in a count in the indictment, they could convict the applicant on that count. The trial miscarried for that reason.

Nevertheless, the question remains whether, in the language of s. 689 of the Code, the appeal to the Court of Criminal Appeal should have been dismissed because the Court should have concluded that "no substantial miscarriage of justice has actually occurred". It may be argued, indeed was argued by the Crown, that had one particular act of carnal knowledge been identified by the Crown prosecutor in respect of each count, the applicant would have been no better off than he was at the trial. He would still have been faced with evidence of continuing acts of intercourse over a period of some years and his denial would still have been of a general nature as it was at trial. There is some force in this submission but it is not enough to justify a conclusion that no miscarriage of justice actually occurred.

This Court said in Wilde v. The Queen [44] : "It is one thing to apply the proviso to prevent the administration of the criminal law from being "plunged into outworn technicality" ; it is another to uphold a conviction after a proceeding which is fundamentally flawed, merely because the appeal court is of the opinion that on a proper trial the appellant would inevitably have been convicted."

This trial was fundamentally flawed in that the jury were invited to convict the applicant so long as they were satisfied that within any of the periods specified in the indictment the applicant "carnally knew" the complainant. Put that way, the acts of intercourse described in the generalized evidence were available, not merely as going to prove any of the offences charged against the applicant but as the offences themselves. In respect of each count, the jury were not required to direct their attention to any particular occasion and to satisfy themselves, beyond reasonable doubt, that there was such an occasion and that it occurred within the period specified in the count. There was a real likelihood that they would convict the applicant on the basis that since acts of carnal knowledge were frequent, an act must have occurred during each of the periods mentioned in the indictment.

In those circumstances it is inappropriate to apply the proviso. There should be special leave to appeal and the appeal allowed. There should be an order for a new trial though the Crown will have to consider whether, in all the circumstances, there can be a new trial which will not miscarry as this trial miscarried.

The applicant (referred to as "S." in order to protect the identity of the complainant) seeks special leave to appeal from a decision of the Court of Criminal Appeal of the Supreme Court of Western Australia dismissing his appeal against convictions on three counts of carnal knowledge of his daughter ("J.").

The counts upon which the applicant was convicted each charged one act of carnal knowledge on a date unknown within a specified period of twelve months. The periods specified were those between 1 January 1980 and 31 December 1980, between 1 January 1981 and 31 December 1981, and between 8 November 1981 and 8 November 1982. An application by counsel for S. for an adjournment pending the supply of further and better particulars was rejected by the trial judge. An application that the prosecutor nominate or identify the acts the subject of the counts in the indictment was also unsuccessful.

The apprehended difficulties which, presumably, led to the unsuccessful applications that the acts charged be particularized or identified became apparent in the course of J.'s evidence in the trial. She gave evidence of two specific acts of sexual intercourse. However, there was no evidence to link either act to any one of the specified periods. In this Court, it was conceded by counsel for the Crown that one such act may have taken place prior to 1 January 1980. Apart from these two acts, the evidence of the complainant was to the effect that sexual intercourse occurred over a period of two years until she left home at the age of seventeen. She could not remember details or frequency other than that it occurred "[e]very couple of months for a year". The complainant turned seventeen on 8 November 1982.

Although other issues were raised in the Court of Criminal Appeal, the present application is made by reference to the matters above outlined. Those matters reveal a problem which, by reason of its similarity with the problem involved when a count in an indictment charges two or more separate offences, has sometimes been referred to as "latent duplicity". See, e.g., Hunter, Prosecutors' Pleadings and the Rule Against Duplicity, University of New South Wales Law Journal, vol. 3 (1980) 248, at pp. 271-273 .

The rule against duplicitous counts in an indictment originated as early as the seventeenth century. See, e.g., Smith v. Mall [45] ; R. v. Stocker [46] . 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 [47] ; R. v. Hollond [48] , 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 [49] ; Cotterill v. Lempriere [50] , per Lord Coleridge C.J. See, as to the availability of a plea in bar, R. v. Robe [51] ; Davy v. Baker [52] ; R. v. Wells; Ex parte Clifford [53] ; R. v. Surrey Justices; Ex parte Witherick [54] .

(1623) 2 Rolle 263 [ 81 E.R. 788]. 2. (1696) 5 Mod. 137 [87 E.R. 568]. 3. (1787) 2 Chit. 519. 4. (1794) 5 T.R. 607, at p. 623 [101 E.R. 340, at p. 348]. 5. (1827) 1 Y. & J. 221 [148 E.R. 653]. 6. (1890) 24 Q.B.D. 634, at p. 637. 7. (1735) 2 Str. 999 [93 E.R. 993]. 8. (1769) 4 Burr. 2471 [98 E.R. 295]. 9. (1904) 91 L.T. 98. 10. [1932] 1 K.B. 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 [5] 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 [6] , per Lord Kenyon C.J.; R. v. North [7] ; R. v. Morley [8] ; and Cotterill v. Lempriere [9] , 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".

(1735) 2 Str., at p. 999 [93 E.R., at p. 994]. 2. (1794) 5 T.R., at p. 623 [101 E.R., at p. 348]. 3. (1825) 6 Dowl. & Ry. 143, at p. 146 [28 R.R. 538, at p. 541]. 4. (1827) 1 Y. & J., at pp. 224-225 [148 E.R., at p. 654]. 5. (1890) 24 Q.B.D., at p. 639.

The matters which go to the orderly administration of justice are not unrelated to the consideration that a duplicitous count may be productive of prejudice. If the matter proceeds to trial, there is the possibility that evidence will be wrongly admitted or that incorrect directions will be given to the jury. There is also the possibility that a jury, no matter how carefully directed, may reason from the number of offences charged that the accused must be guilty of at least one. However, it may be going too far to equate prejudice with the difficulty of raising a defence of autrefois acquit or autrefois convict, and, in any event, such problems as there are in that area may be of less significance in those jurisdictions where the criminal law is codified than in common law jurisdictions. See, in relation to s. 17 of the Criminal Code W.A. ("the Code"), O'Halloran v. O'Byrne, especially per Wickham J. [10] .

The problems which attend duplicitous counts also attend proceedings in which the prosecution seeks to lead evidence of multiple offences answering the description of the offence or offences charged. Two such problems were made explicit in Johnson v. Miller [11] . In that case one offence was charged, but the prosecution announced its intention of calling evidence of some thirty possible offences. Dixon J. pointed out that, unless similar fact evidence were admissible, the admission of "evidence of thirty distinct offences would be contrary to law, and the fact that each satisfied the description contained in the complaint could afford no justification for such a breach of so important a rule" [12] . The second problem identified in that case concerned the different defences that might be available to the different offences in respect of which it was proposed to call evidence. In relation to that problem Evatt J. said that the course proposed by the prosecution would convert "a strictly judicial function - that of determining guilt or innocence of a single offence - into an administrative commission of inquiry into the question whether when there were thirty possible occasions when an offence might have been committed, the defendant could exculpate himself in respect of all thirty occasions" [13] .

(1937) 59 C.L.R. 467. 2. (1937) 59 C.L.R., at p. 487. 3. (1937) 59 C.L.R., at p. 495.

The Court of Criminal Appeal dismissed the applicant's appeal, so far as it concerned the failure to particularize or identify the act the subject of each charge, on the basis that the applicant was not prejudiced in his defence. It seems that that conclusion rested on the view that the applicant was not deprived of a real opportunity to call alibi evidence, it being said by Brinsden J. (with whom Smith J. agreed) that the applicant "did not suggest that there was any period of time during the three years when he was away from the matrimonial home for any lengthy period of time and it would have had to be lengthy to have afforded a defence since the allegation against him was that acts of unlawful carnal knowledge took place every couple of months".

The question of prejudice goes somewhat deeper than the question whether there was an effective denial of an opportunity to call alibi evidence. The evidence of a number of offences said to have been repeated at two-monthly intervals over a period of one year (which period might fall anywhere within a period of almost three years) had the same practical effect that was noted by Evatt J. in relation to the course proposed in Johnson v. Miller. Effectively, the applicant was required to defend himself in respect of each occasion when an offence might have been committed. Additionally, by reason that the offences were neither particularized nor identified, the accused was effectively denied an opportunity to test the credit of the complainant by reference to surrounding circumstances such as would exist if the acts charged had been identified in relation to some more precise time or by reference to some other event or surrounding circumstance.

Prejudice is the focus of consideration when the question is whether some order should be made as to the conduct of the trial to avoid difficulties which may be occasioned by reason of uncertainty as to what precisely is charged. Ordinarily, those difficulties will be averted by ordering particulars, by amending the indictment, or by putting the prosecution to its election and appropriately confining the evidence to the offences charged. See Johnson v. Miller [14] . However, when a trial proceeds without an order averting those difficulties, the question is whether there has been a blemish on the trial amounting to a substantial miscarriage of justice. See s. 689(1) of the Code.

(1937) 59 C.L.R., at pp. 480-481, 486, 497-498, 501.

The trial of the applicant was fundamentally flawed by the admission of evidence of multiple acts of carnal knowledge and by the way in which such evidence was left to the jury. The rule as to the admissibility of evidence of offences, not being the offences charged, is clear. Such evidence, whether identified as similar fact evidence or by some other description, is only admissible if it has probative value such that it raises the objective improbability of some event having occurred other than as alleged by the prosecution. See Hoch v. The Queen [15] . It is unnecessary to consider whether, on this basis, evidence of other acts of carnal knowledge might have been admissible at the trial. At the very least, as Dixon J. observed in Johnson v. Miller [16] , it would have been necessary for it to have been made clear what acts were said to be the offences charged and what acts were said to be similar facts. Without that, it would be impossible to instruct the jury as to the use properly to be made of the evidence of other offences. More significantly in the present case, evidence of other acts of carnal knowledge was not left to the jury on the basis that such acts might prove the offences charged, but on the basis that the jury might be satisfied that one act of carnal knowledge occurred within each of the periods specified in the indictment.

(1988) 165 C.L.R. 292, at p. 294. 2. (1937) 59 C.L.R., at p. 490.

The basis upon which the evidence was left to the jury illustrates a fundamental problem which is addressed by the requirement for certainty as to the offence charged, which requirement also underlies the rule against duplicitous counts. Even leaving aside the problem referable to the overlapping of the second and third periods specified in the indictment, the basis upon which the evidence was left to the jury allowed for the real possibility that different jurors might have different acts in mind when they came to consider each of the verdicts. Indeed, in view of the way the matter was left to the jury, it might even be possible that, in relation to one or all of the counts, individual jurors had no specific act in mind, but simply reasoned from the evidence as to frequency that the applicant committed one such act within each of the specified periods. In these circumstances, it is impossible to say, in relation to any one count in the indictment, that the jury as a whole was satisfied as to the applicant's guilt of an individual act answering to the description of the offence charged. Assuming the verdicts returned by the jury to constitute verdicts in the accepted sense, it is impossible to say that, had the jury been directed to consider the guilt of the accused of specific acts identified as the offences charged, the verdicts of guilty "would plainly have been the same". See Van der Meer v. The Queen [17] , per Deane J. That being so, it cannot be said that there was no substantial miscarriage of justice.

In the course of argument it was stated by counsel for the Crown that it was impossible to particularize or identify any individual act as the offence the subject of any count in the indictment. Accordingly, it was said, unless the case could be left to the jury on the basis allowed by the trial judge, no case could be prosecuted. While the evidence as given by J. at the trial suggests that there may be practical difficulties in particularizing or identifying one or all of the offences charged, it is not obvious that it is wholly impossible so to do. Whatever practical difficulties may exist, those difficulties (even if amounting to an impossibility) cannot justify a criminal trial attended with such uncertainty that the verdict or verdicts must also be seen as uncertain.

Special leave to appeal should be granted. The appeal should be allowed and the convictions quashed. Because there may be some means of overcoming some or all of the difficulties which attended the trial of the applicant, a new trial should be ordered.

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