Walsh v Tattersall

Walsh v Tattersall - [1996] HCA 26 - HCA 1996 case summary — Zoe

[90]

The Commission rejected the claim. The appellant applied for review pursuant to s 95 of the Act. The hearing of the review was delayed pending the outcome of the criminal charges which were heard in May 1992 by Mr T Iuliano SM. On 22 June 1992, the magistrate dismissed the charges. The workers' compensation review hearing was then listed to take place on 25 August 1992. Again the Commission offered the appellant work but in a different capacity and at a different hospital. Through his solicitors, the appellant again declined the offer. He supplied medical reports supporting a diagnosis of depression and anxiety "directly related to his recent work experience". The solicitors supplied a psychiatric report from Dr David Kutlaca. The specialist reported that the appellant's mental state had improved dramatically after the dismissal of the criminal charges but had relapsed when he became aware that the Commission "retained the right to take internal disciplinary proceedings against him". In July 1992, Dr Kutlaca expressed the opinion that the appellant "is presently fit to return to duties within his abilities and experience, provided these are at all times carried out in circumstances of interpersonal equity". On 28 August 1992, the same specialist reported in new circumstances where the proposal of internal disciplinary proceedings had been dropped and the claim for compensation had been accepted. Because of continuing upsets, Dr Kutlaca reported: "I am of the view that [the appellant] is not presently fit to return to work, although this ought to occur relatively soon I can see no psychiatric objection to deployment elsewhere if he agrees to this." On the basis of the appellant's incapacity for work, supported by certificates provided (the last of which from Dr Kutlaca was dated 12 October 1992), the Commission directed its insurer to notify the appellant that it accepted the claim "for the closed period 7 October 1991 to 14 November 1992". What happened then is the subject of evidence in the proceedings brought against the appellant which gave rise to the present appeal.

[148]

Nonetheless, there are special features of criminal procedure which continue to sustain the general tendency in favour of a rule of precision and specificity which has hitherto been enforced in this branch of the law. The reasons have been given many times, including in this Court. In Johnson v Miller [67] , Evatt J gave a classic exposition [68] : It is of the very essence of the administration of criminal justice that a defendant should, at the very outset of the trial, know what is the specific offence which is being alleged against him. This fundamental principle has been deemed applicable to bodies which are not strictly judicial in character. But the rigorous application of the principle by courts of justice proper is to be regarded as deriving from the court's inherent power and jurisdiction. It is inherent because it is an essential and integral part of any system of administering justice according to law. For various reasons, including the miscarriages caused by technical objections to matters of form, the formal indictment, information or complaint is allowed to become more sparing in the information it imparts. Side by side, the jurisdiction to order particulars may call for more frequent exercise. It is an essential part of the concept of justice in criminal cases that not a single piece of evidence should be admitted against a defendant unless he has a right to resist its reception upon the ground of irrelevance, whereupon the court has both the right and the duty to rule upon such an objection. These fundamental rights cannot be exercised if, through a failure or refusal to specify or particularise the offence charged, neither the court nor the defendant (nor perhaps the prosecutor) is as yet aware of the offence intended to be charged. Indeed the matter arises at an even earlier stage. The defendant cannot plead unless he knows what is the precise charge being preferred against him. If he so chooses, a defendant has a right to plead guilty, and therefore to know what it is he is being called upon to answer. More recently, and after Merriman was decided in the House of Lords, the same strict rule was followed in this Court in S v The Queen [69] . Gaudron and McHugh JJ explained why [70] : The rule against duplicitous counts in an indictment originated as early as the seventeenth century It may be 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

[152]

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 [77] and trafficking in drugs [78] . Obviously, nice questions arise as to whether individual acts of supply of prohibited drugs create the same, or substantially the same, offence so as to sustain a single count and to resist an allegation of duplicity [79] . Various verbal formulae have been offered as a suggested test for whether the criminal acts are sufficiently close in time and space as to "fairly and properly be identified as part of the same criminal enterprise or the one criminal activity" [80] . These valiant attempts by judges have been criticised as "glib" [81] . Judges themselves have acknowledged that judicial views in particular cases are not always easy to reconcile [82] . Ultimately, what is presented is a question of fact and degree for decision in each case [83] . 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 [84] . Perhaps an indication of the considerable difficulty of the task to be found is in the fact that, in many of the leading cases, there is (as in this case) a division of judicial opinion. For instance, Latham CJ dissented in Johnson v Miller [85] .; Kitto J dissented in Montgomery v Stewart [86] ; and Brennan J (as he then was) dissented in S v The Queen [87] .

[153]

Because of the foregoing, it must be accepted as correct that "the courts have never managed to produce a technical verbal formula of precise application which constitutes an easy guide as to whether the common law rule [against duplicity] has been infringed" [88] . A choice of legal principle or policy is therefore presented in this appeal which this Court should resolve. Not a great deal of help is given to decisions in a particular case by saying that the test is to look to "the gist of the offence" [89] . Nor is much help afforded by saying that the test is whether multiple acts can "fairly and properly" be identified as part of the same criminal enterprise or activity [90] . With respect, it is not very useful to say that it is "desirable" or "preferable", where separate offences are arguably shown, that the prosecution should formulate separate charges [91] . Unless courts are prepared to support such homilies with sanctions in the case of breach they are unlikely to much influence day to day prosecution practice. Not a great deal of help to the primary decision-maker is given by suggesting that the test is whether the charge, as formulated, has the potential to confuse or embarrass the accused [92] . Clearly, a great deal depends on the nature of the offence. Where the alleged duplicity in the charge is latent, it may only be manifested by the way in which evidence is presented to support the charge [93] . It may not be until the prosecution's case is concluded that it becomes apparent that the prosecution cannot prove all of the acts that have been rolled together in a single composite charge, making plain the unsuitability of the process reliant on that charge [94] . Exceptions to the general rule against duplicity have been allowed where the multiple acts relied on by the prosecution are so close in time and place that they can be viewed as one composite activity; where the offence is one that can be classified as continuing in nature [95] ; and in other anomalous cases [96] . However, such cases apart, although the courts in England [97] and New Zealand [98] have taken a more lenient view, this Court has, until now, favoured a rule of strictness. The question is whether this Court should now soften that stance.

[156]

John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508; R v Thompson [1914] 2 KB 99. 2. S v The Queen (1989) 168 CLR 266 at 280-281, per Toohey J, citing Archbold, Pleading, Evidence and Practice in Criminal Cases, 43rd ed (1988), p 46. See also Director of Public Prosecutions v Merriman [1973] AC 584 at 599, per Viscount Dilhorne, citing Archbold's Criminal Pleading, 1st ed (1822), p 25. 3. Johnson v Miller (1937) 59 CLR 467 at 492, per Dixon J. 4. Johnson v Miller (1937) 59 CLR 467 at 498. 5. Hawkins' Pleas of the Crown, Bk 2, c 25, s 82 referred to in R v Thompson [1914] 2 KB 99 at 100. 6. Radzinowicz, A History of English Criminal Law, vol 1 (1948), pp 97-103. 7. Summary Jurisdiction Act 1848 UK. 8. [1964] VR 443 at 458. 9. [1973] AC 584. 10. (1937) 59 CLR 467. 11. Johnson v Miller (1937) 59 CLR 467 at 497-498. 12. (1989) 168 CLR 266. 13. S v The Queen (1989) 168 CLR 266 at 284. 14. Marshall (1972) 56 Cr App R 263 at 265; Willis (1972) 57 Cr App R 1. 15. Jemmison v Priddle [1972] 1 QB 489. 16. Director of Public Prosecutions v Merriman [1973] AC 584 at 607. 17. Montgomery v Stewart (1967) 116 CLR 220. 18. Jemmison v Priddle [1972] 1 QB 489 at 494-495. 19. R v Ballysingh (1953) 37 Cr App R 28 at 30. See also Merriman [1973] AC 584, per Lord Morris; Merriman [1973] AC 584 at 595; S v The Queen (1989) 168 CLR 266, per Brennan J. S v The Queen (1989) 168 CLR 266 at 270 citing Barwick CJ in Driscoll v The Queen (1977) 137 CLR 517 at 527. See also Hunter, Prosecutors' Pleadings and the Rule Against Duplicity, University of New South Wales Law Journal, vol 3 (1980) 248. 20. Daly v Medwell (1986) 40 SASR 281; cf Timms v Van Diemen [1968] SASR 379 at 385-386; Romeyko v Samuels (1972) 2 SASR 529; Lafitte v Samuels (1972) 3 SASR 1. 21. R v Giretti and Giretti (1986) 24 A Crim R 112; R v Locchi (1991) 22 NSWLR 309 at 312; R v Goodfellow (1994) 33 NSWLR 308. 22. R v Hamzy (1994) 74 A Crim R 341 at 348. 23. R v Hamzy (1994) 74 A Crim R 341 at 348. 24. Hunter, Prosecutor's Pleadings and the Rule Against Duplicity, University of New South Wales Law Journal, vol 3 (1980) 248, at p 267 . 25. See, eg, Stanton v Abernathy (1990) 19 NSWLR 656 at 666, per Gleeson CJ. 26. R v Eades (1991) 57 A Crim R 151 at 156. 27. Weinel v Fedcheshen (1995) 65 SASR 156 at 170, per Perry J. 28. (1937) 59 CLR 467 at 472. 29. (1967) 116 CLR 220 at 225. 30. (1989) 168 CLR 266 at 267. 31. Stanton v Abernathy (1990) 19 NSWLR 656 at 666, per Gleeson CJ. 32. Montgomery v Stewart (1967) 116 CLR 220 at 229, per Taylor J. 33. R v Hamzy (1994) 74 A Crim R 341 at 348. 34. As was done by Prior J in this case. See also R v Willis (1973) 57 Cr App R 1 at 8-9. 35. cf S v The Queen (1989) 168 CLR 266 at 281, per Toohey J. 36. R v Locchi (1991) 22 NSWLR 309 at 312. See also R v Traino (1987) 45 SASR 473. 37. As was the case in R v McMullen (1990) 54 SASR 55 at 56. 38. cf Ex parte Graham; Re Dowling (1968) 88 WN (Pt 1) (NSW) 270. 39. See, eg, R v Lawson [1952] 1 All ER 804; R v Tomlin (1954) 38 Cr App R 82. 40. Notably in Director of Public Prosecutions v Merriman [1973] AC 584. 41. See R v Accused [1993] 1 NZLR 385. 42. [1966] Criminal Law Review 255, at p 265. 43. R v Molloy [1921] 2 KB 364; R v Wilmot (1934) 24 Cr App R 63; R v Traino (1987) 45 SASR 473; Stanton v Abernathy (1990) 19 NSWLR 656 at 665. 44. Jemmison v Priddle [1972] 1 QB 489 at 494. 45. Stanton v Abernathy (1990) 19 NSWLR 656 at 665. 46. R v Hamzy (1994) 74 A Crim R 341 at 344; cf Wilde v The Queen (1988) 164 CLR 365. 47. cf Stanton v Abernathy (1990) 19 NSWLR 656 at 666. 48. Iannella v French (1968) 119 CLR 84 at 102, applying R v Molloy [1921] 2 KB 364; R v Disney [1933] 2 KB 138. 49. Johnson v Miller (1937) 59 CLR 467 at 490, per Dixon J, discussed in Stanton v Abernathy (1990) 19 NSWLR 656 at 670. See also R v Hamzy (1994) 74 A Crim R 341. 50. S v The Queen (1989) 168 CLR 266 at 276.

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