S v R 
[1989] HCA 66; (1989) 168
CLR 266 (21 December 1989 )
HIGH COURT OF AUSTRALIA
S. v. THE QUEEN [1989] HCA 66;
(1989) 168 CLR 266
F.C. 89/060
Criminal Law
High Court of Australia
Brennan(1), Dawson(2), Toohey(3), Gaudron(4) and McHugh(4) JJ.
CATCHWORDS
Criminal Law - Indictment -
Sufficiency - Latent ambiguity - Duplicity - Three counts of incest on dates
unknown each within twelve month period - Evidence of numerous acts of
intercourse in each period - Misdirection to jury - Conviction on each count -
Whether substantial miscarriage of justice - Criminal Code (W.A.), s. 689(1).
HEARING
APPLICATION for special leave to appeal from the Supreme Court of Western
Australia.
DECISION
BRENNAN J. 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 9 or
10, 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 14. Her 14th 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 17. 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 2 years.
Until what age?---Until I left home at 17.
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."
mother's underpants and slips and that the first occasion he did this was an
occasion when he had intercourse with her.
2. 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 3 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 3 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).
3. 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 [1977] HCA 22;
(1977) 136 CLR 465, at p 472). 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 (WA), entitled the applicant on
appeal to an order quashing the conviction: Parker v. Sutherland (1917) 116 LT
820; Johnson v. Miller [1937] HCA 77;
(1937) 59 CLR 467.
4. 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 (1914) 2 KB 99; (1913) 9 Cr App R 252, an enlarged
bench of the Court of Criminal Appeal considered the problems of uncertainty
and duplicity in an indic tment charging a father with an act of incest with
his daughter during two consecutive periods, one of 21 months, the other of 29
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 (at p 105; p 260):
"One of the objects of s. 4
(of the Criminal
Appeal Act 1907 (
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": at p 103; p
258. In R. v. Conley (1916) VLR 639, 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
5. 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": per
Barwick C.J. in Driscoll v. The Queen [1977] HCA 43;
(1977) 137 CLR 517, at p 527. 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 (1911) AC 47; Martin v. Osborne [1936] HCA 23;
(1936) 55 CLR 367, at pp 394-396. 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. at p 490.
6. 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 (1837) 7 C & P 836 (173 ER 364). 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.
7. 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 applies is a question of some importance, but I would dismiss
the appeal.
2. 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.
3. 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 14
years of age. The complainant was born on
"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.
4. 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 charg ed 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.
5. 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 [1937] HCA 77;
(1937) 59 CLR 467, per Dixon J. at p 486. That ambiguity required correction if
the applicant was to have a fair trial.
6. 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 (1973) 58 Cr App R 394, at p 403. 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 (1924) SASR 326, at p 340; Johnson v. Miller,
at pp 488-489; Grassby v. The Queen [1989] HCA 45;
(1989) 63 ALJR 630, at pp 636-637[1989] HCA 45;
; 87 ALR 618, at pp 627-628.
7. 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.
8. 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.
9. 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, at pp 489-490;
Parker v. Sutherland (1917) 86 LJKB 1052, at p 1054. 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 (unreported, 9
November 1989) 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 (1911) AC 47. 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.
10. 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.
11. 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 (WA) 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 (1974) WAR 45,
at p 47. 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.
12. 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 (1914) 2 KB 99; R.
v. Smythe & Blanton (1912) 8 Tas LR 28; R. v. Conley (1916) VLR 639;
Coleman and Del Carlo v. The Queen (1988) WAR 196. 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.,
at p 489, 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."
13. 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 [1988]
HCA 6; (1988) 164 CLR 365, at pp 372-373.
14. I would grant special leave, allow the appeal, quash
the convictions and order a retrial.
TOOHEY J. 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.
2. 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
3. Section 582 of The Criminal Code (WA) 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 The Queen v. Phil Maria (1957) St
R Qd 512, at p 523, 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."
4. 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.
5. 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.
6. 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."
7. 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 The King v.
Ball (1911) AC 47 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 for
8. 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.
9. 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."
10. At the end of his summing up his Honour repeated the
need for the jury "to determine ... whether on the 3 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.
11. 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 Pr actice 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.
12. 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 (1735) 2 Str 999 (93 ER
993) "and for this fault the judgment was arrested" (at p 999 (p 994
of ER)). See also Davy v. Baker [1769] EngR 69;
(1769) 4 Burr 2471 (98 ER 295); Young v. The King (1789) 3 TR 98, at p 100 (100
ER 475, at p 477) and generally Chitty's Criminal Law, 2nd ed. (1826), vol 1, pp
168-169. The problem was adverted to again in Parker v. Sutherland (1917) 86
LJKB 1052, 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. at p 1054, and Avory J. at pp
1054-1055. 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."
13. The operation of s.17 was discussed by Wickham J. in
O'Halloran v. O'Byrne (1974) WAR 45, at pp 51-53. 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 (1980) WAR 203, at p 204. 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.
14. 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 [1937]
HCA 77; (1937) 59 CLR 467, at p 489, 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."
15. 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.
16. 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.
17. This Court said in Wilde v. The Queen [1988] HCA 6;
(1988) 164 CLR 365, at p 373: "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."
18. 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.
19. 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.
GAUDRON AND McHUGH JJ. 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").
2. The counts upon which the applicant was convicted each
charged one act of carnal knowledge on a date unknown within a specified period
of 12 months. The periods specified were those between
3. 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
4. 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, for example, Hunter, "Prosecutors' Pleadings and the
Rule Against Duplicity", (1980) 3 University of
5. The rule against duplicitous counts in an indictment
originated as early as the seventeenth century. See, for example, Smith v. Mall
(1623) 2 Rolle
263 (81 ER 788); R. v. Stocker (1696) 5 Mod 137 (87 ER 568). It may be, as
suggested by Salhany in "Duplicity - Is the Rule Still Necessary?",
(1963) 6 Criminal Law Quarterly 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 (1787) 2 Chit 519; R. v.
Hollond (1794) 5 TR 607 (101 ER 340), per Lord Kenyon C.J. at p 623 (p 348 of
ER). See, as to the need for distinct consideration in relation to penalty, R.
v. Stocker; R. v. Sadler; R. v. Morley [1827] EngR 282;
(1827) 1 Y. & J. 221 (148 ER 653); Cotterill v. Lempriere (1890) 24 QBD
634, per Lord Coleridge C.J. at p 637. See, as to the availability of a plea in
bar, R. v. Robe (1735) 2 Str 999 (93 ER 993); Davy v. Baker [1769] EngR 69;
(1769) 4 Burr 2471 (98 ER 295); R. v. Wells; Ex parte Clifford (1904) 91 LT 98;
R. v. Surrey Justices; Ex parte Witherick (1932) 1 KB 450.
6. 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, for example, R. v. Robe, at p 999 (p 994
of ER) 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, per Lord Kenyon C.J. at p 623 (p 348 of ER); R.
v. North (1825) 6 Dowl & Ry 143, at p 146 (28 RR 538, at p 541); R. v.
Morley, at pp 224-225 (p 654 of ER); and Cotterill v. Lempriere, per Lord Esher
M.R. at p 639. 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".
7. 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 (1974) WAR
45, especially per Wickham J. at pp 52-53.
8. 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 [1937] HCA 77;
(1937) 59 CLR 467. 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 (at p 487) 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". 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. (at p 495) 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".
9. 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".
10. 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.
11. 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, at pp 480-481, 486, 497-498 and 501. 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.
12. 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 [1988] HCA 50;
(1988) 165 CLR 292, at p 294. 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 (at p
490), 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.
13. 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 [1988]
HCA 56; (1988) 62 ALJR 656, per Deane J. at p 668[1988] HCA 56;
; 82 ALR 10, at p 30. That being so, it cannot be said that there was no
substantial miscarriage of justice.
14. 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.
15. 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.
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.
