'Double or nothing' - The rule against duplicity in charging criminal offences

In Victoria, the rule against duplicity is a common law rule concerning the way criminal charges are drafted.  The rule provides that the prosecution must not allege the commission of two or more offences in a single charge in a charge-sheet.[1]  Such a charge is sometimes said to be 'duplex' or 'duplicitous'.

While the rule is well established in criminal law, prosecuting agencies sometimes find it difficult to apply in practice.  It is often stated that there is no 'technical verbal formula of precise application' that provides an easy guide to applying the rule.[2]

However, like other common law and statutory rules [3] for drafting criminal charges, the rule stems from two important principles:

• First, as a matter of fairness, a person charged with a criminal offence is entitled to know the crime that they are alleged to have committed, so they can either prepare and present a defence or decide to plead guilty.  
• Second, the court hearing the charge must also know what is alleged so that it can determine the admissibility of evidence, focus on the relevant fact-finding task, consider any possible defences which might be available, and determine the appropriate punishment in the event of a conviction.

When does a charge contravene the rule against duplicity?

There are generally considered to be two ways in which a charge might offend the rule against duplicity: These are:

Patent duplicity, where a single charge alleges the commission of two separate offences.  

Latent duplicity (also called 'latent ambiguity' or 'latent uncertainty'), where a single charge alleges the commission of only one offence, but the evidence led by the prosecution in relation to the charge discloses a number of separate offences, all of which could fit the allegation described in the charge.

In either case, the accused may be prejudiced in a number of ways by a duplex charge.  A concise summary of the prejudice that may flow in such cases can be found here in the judgement of Redlich JA in the Victorian Court of Appeal decision of PPP v The Queen.[4]

An excellent summary of the history and development of the rule can be found in the judgement of Leeming JA in the NSW Court of Criminal Appeals' decision of Environment Protection Authority v Truegain Pty Ltd.[5] 

Distinction between a duplex charge and a charge alleging an offence 'in the alternative'

Sometimes a statutory provision will state that an offence can be committed in alternative ways (for example, intentionally or recklessly causing injury).  Under the Criminal Procedure Act 2009 (Vic), the prosecution may generally plead that an offence was committed 'in the alternative' in the one charge.[6]  

However, it can sometimes be difficult to apply this exception in practice.  One problem is that a single statutory provision sometimes creates separate offences.[7]   Whether a statutory provision creates separate offences or a single offence that can be committed in alternative ways can only be identified by process of statutory interpretation. VGSO's lawyers are experts in statutory interpretation and are pleased to provide assistance in this regard.

Exception for offences that are part of a 'single transaction' or are 'continuing offences'

An exception to the rule against duplicity is where an accused is alleged to have engaged in a course of conduct consisting of a series of acts, each which might constitute a separate offence, but which are so closely related that they can be considered one act or a 'single transaction'.[8] 

Whether such allegations are considered a 'single transaction' depends on the period of time over which the acts occurred, the similarity of the acts, the physical proximity of the place where the acts happened, and the intention of the accused throughout those acts.[9]   However, even where such a connection exists, it may still be necessary to charge one or more of the acts separately.  For example, an accused might have a specific defence to one or more of the alleged acts, or the evidence available to prove some acts may be substantially weaker than for others.[10]   Fairness dictates that these acts are set out in separate charges.

There are also offences which require proof of a number of acts in order to establish an offence, even where the individual acts may themselves constitute distinct offences.  These are sometimes called 'continuing offences'.  Examples include allegations of stalking[11] or persistent sexual abuse of a child.[12] 

Exception for 'rolled-up' charges

Another important exception to this rule applies where an accused waives the right to object to a charge that is affected by duplicity by pleading guilty to a 'rolled-up' charge.  

A rolled-up charge can comprise a number of separate offences against the same statutory provision, even where they do not amount to a 'single transaction' (eg where the acts occurred on different occasions).  This is usually done in negotiating a plea of guilty to create an administrative convenience rather than to reduce the culpability of the accused.  

It is important for prosecutors to ensure that the summary of facts presented to the Court at sentencing explains that a rolled-up charge encompasses a number of distinct offences, so that the accused is sentenced accordingly.

Overcoming duplicity in a charge

Duplex charges are not automatically struck out by a court.  Instead, the court will usually require the prosecution to 'elect' which of the separate offences it wishes to proceed with (where there is patent duplicity) or to provide sufficient particulars of the charge to identify the precise instance of offending (where there is latent duplicity).  If the prosecution fails to make an election or identify the precise instance of offending, the Court may act to strike out or 'stay' the charge.

Whatever the case, it is always important that proper particulars are given, so that the accused knows all of the relevant facts, matters and circumstances alleged against them.  A failure to provide such particulars can still result in a charge being struck out.

Conclusion

If you require advice or assistance in drafting charges or criminal prosecutions generally, contact:

Greg Elms
greg.elms@vgso.vic.gov.au
8684 0414

Michael Stagg
michael.stagg@vgso.vic.gov.au
9247 6496

Matthew Carrazzo
matthew.carrazzo@vgso.vic.gov.au
8684 0497

[1] The rule applies equally to the drafting of counts in an indictment, where a matter is prosecuted by the Director of Public Prosecutions in the County Court or Supreme Court.

[2] Stanton v Abernathy (No 2) (1990) 19 NSWLR 656 at 666 per Gleeson CJ.

[3] See Schedule 1 of the Criminal Procedure Act 2009 (Vic).

[4] [2010] VSCA 110 at para [43].

[5] [2013] NSWCCA 204 at paras [31] to [53].

[6] Clause 3(3) of Schedule 1 to the CP Act.

[7] For example, section 52 of the Summary Offences Act 1966 (Vic) provides: "Any person who assaults resists obstructs hinders or delays … any member of the police force or a protective services officer in the execution of his duty under this Act or otherwise… shall be guilty of an offence".  This provision arguably creates a number of distinct offences, rather than a single offence which can be committed in different ways.

[8] Such conduct is sometimes referred to as a 'composite activity'.

[9] Walsh v Tattersall (1996) 188 CLR 77 per Kirby J; R v Khouzame & Saliba [1999] NSWCCA 173; (1999) 108 A Crim R 170; R v Heaney [2009] VSCA 74; Rixon v Thompson [2009] VSCA 84.  It is useful to look at cases of the higher courts to get a flavour for what fits within this exception.  The decision of Ashley JA in R v Heaney and the decision of the Court of Appeal in Rixon v Thompson are good starting points.

[10] See: Rixon v Thompson [2009] VSCA 84 per Maxwell P, Weinberg JA and Kyrou AJA at paras [73]-[77], [89]-[90].

[11] Section 21A of the Crimes Act 1958.

[12] Section 47A of the Crimes Act 1958.

Planning enters the fast lane at VCAT

The new Victorian Civil & Administrative Tribunal Amendment Act 2014 (the Amendment Act) will come into operation on or before 1 February 2015.  The purpose of the Amendment Act is to enhance the Tribunal's powers and efficiency, and both formalise existing practices and expand the regime for management of expert evidence at VCAT.  These new measures aim to ensure the Tribunal can efficiently manage and resolve cases brought before it, particularly in its planning jurisdiction.

These substantial reforms introduced in the Amendment Act will empower the Tribunal to:
1. Invite original decision-makers to reconsider a decision at any time in a proceeding (s 51A);
2. Order a person to cease to be a party to a proceeding if they are not an affected, proper, or necessary party (s 60A);
3. Order the reimbursement of VCAT fees from one party to another (s 115B). This entitlement will be presumed in certain matters where a party substantially succeeds (s 115C) and is distinct and separate from the Tribunal's power to make an order for costs (s 115D);
4. Delegate certain functions of the Tribunal to its registrars (s 157A); and
5. Actively manage expert evidence used in proceedings (Schedule 3).
This note discusses the first and last points in particular.

Council to reconsider its decision
New s 51A allows the Tribunal to invite the original decision-maker (eg, a council) to remake the decision under review during the course of a proceeding.  This may enable faster resolution of planning review proceedings.  This new provision gives a local council 'the opportunity to consider a proposed resolution to the dispute' rather than requiring a local council to find or make specific delegations or authorisations to give effect to a settlement.

Expert Evidence Directions
The Amendment Act also elaborates on existing powers and formalises current Tribunal practice in relation to expert witnesses and expert evidence.

The Tribunal accomplishes this by including in the Amendment Act the power to:
1. Call for the preparation of an expert report;
2. Limit expert evidence to specified issues;
3. Limit the number of expert witnesses called;
4. Provide for the appointment of a single joint expert or Tribunal appointed expert; and
5. Give any other direction that may assist expert witness functions in a proceeding.
Expert Witness Conferences & Joint Expert Reports

The Amendment Act formalises VCAT practice in relation to expert conferences and the preparation of joint expert reports.  The Amendment Act formalises the Tribunal's practice of ordering experts to enter a 'hot-tub'.  This is aimed at identifying areas of agreement between multiple experts and, therefore, narrow the issues in dispute.

A conference of experts can be held without the presence of the parties to a proceeding, the practitioners, or an independent facilitator.  Joint expert conferences may also lead to a joint expert report setting out areas of agreement and disagreement between experts.

Anything said or done during a conference of experts is confidential.  What occurs during the conference must not be referred to during a related hearing or proceeding without the agreement of the parties or by order of the Tribunal.

Single Joint Experts
The Amendment Act preserves VCAT's power to appoint an expert to assist VCAT in the proceeding or, alternatively, order an expert to be engaged jointly by the parties.

In making such a decision, the Tribunal must consider:

• the proceeding's complexity;
• the amount in dispute;
• whether the issue falls in a substantially established area of knowledge;
• the necessity of a range of opinions;
• the likelihood of expediting or delaying the proceedings; and
• any other relevant considerations.

Formalising Expert Evidence Provisions? 
The Amendment Act suggests a move towards formalising the approach to expert evidence at VCAT and a departure from a previously more informal process.  This is reiterated by the adoption of a definition of expert witness and a regime consistent with the Civil Procedure Act 2010, which does not currently apply to VCAT.

That said, the VCAT Practice Note PNVCAT2 - Expert Evidence remains unchanged and we understand that there are no plans to update it at this time.  It is worth also noting that the Practice Note adopts a definition of 'expert witness' which is more detailed than the definition in the Amendment Act.

Take home points 
1. The Tribunal will have new powers to improve the efficiency of managing cases brought before it.
2. In particular, in review proceedings, the Tribunal will be able to invite original decisions makers to
directly reassess their decision at any time during a proceeding.
3. The Tribunal's power to invite decision makers directly to reassess decisions will be particularly relevant to the planning jurisdiction.  Importantly, it may provide more options for developers and those engaged in major planning matters to seek faster resolution of their disputes.
4. The expert evidence provisions, for the most part, formalise current VCAT practices.
5. Although the extent to which the reforms will improve Tribunal functioning has yet to be seen, it is anticipated that these provisions as a whole will generally save time and money if factored into your case
preparation and instructions to experts.
6. Get in contact with the VGSO to assist and prepare you for these new reforms!

For advice on this topic please contact:

Eliza Bergin
Principal Solicitor
t 03 8684 0267
eliza.bergin@vgso.vic.gov.au

Juliette Halliday
Principal Solicitor
t 9032 3034
juliette.halliday@vgso.vic.gov.au

ACCC v Coles Supermarkets Australia Pty Ltd - Implied waiver of legal professional privilege

Introduction
Legal professional privilege (LPP) is a common law right [1] which protects the confidentiality of communications between a client and their legal adviser.  LPP generally prevents the compulsory disclosure of a confidential communication, whether ordered by a court (for example subpoenas or discovery) or by a person or body with similar compulsive powers. [2]
 
Where a client waives the confidentiality of a communication, any LPP attaching to that communication is lost.  Disputes sometimes arise as to whether, despite a client wanting to claim that a communication is still confidential, they have impliedly waived confidentiality by saying or doing something inconsistent with that position. [3]

So in what circumstances might a person say or do something inconsistent with maintaining the confidentiality of a privileged communication?

The recent case of ACCC v Coles Supermarkets Australia Pty Ltd (ACCC v Coles) [4] considered this question in the context of a dispute about baked bread.

The facts of ACCC v Coles
In mid-2012, Coles began selling bread products through its in-store bakeries which had been ‘par baked’ by certain suppliers.  The ACCC commenced proceedings in the Federal Court seeking various forms of relief and penalties, alleging that Coles’ advertising of these bread products using slogans such as “Freshly Baked In-Store” and “Baked Today, Sold Today” was misleading and deceptive.  Coles denies this allegation.

To narrow the issues in dispute, the parties sought to formulate an agreed statement of facts (ASOFs). [5]  In the course of negotiating the contents of the ASOFs, Coles’ lawyers sent a letter to the ACCC’s lawyers (the November Letter) describing information about the baking processes used by the suppliers.  This information was summarised from confidential correspondence sent to Coles’ lawyers by its suppliers. [6]

The ACCC sought the issue of subpoenas to Coles' suppliers requiring production of copies of this confidential correspondence.  While the ACCC accepted that LPP attached to these documents, it argued that Coles had waived confidentiality in these documents because it had disclosed the 'gist' of them in the November Letter.

The decision
The Federal Court held that while the November Letter disclosed the gist of the communications, this was not inconsistent with a maintenance of confidentiality in the documents.  It noted that legal representatives in litigation regularly exchange correspondence summarising their clients' instructions or other confidential communications, and that it may have a 'chilling effect' on such exchanges (which are helpful in negotiating agreed facts) to find that they result in an implied waiver.

Another factor which was considered important by the Court was that the ACCC could still adduce evidence about Coles' suppliers' baking processes in the usual way (ie by way of evidence in the case, rather than in an ASOFs), regardless of whether the correspondence from the suppliers was available for inspection by the ACCC.

For these reasons, the Federal Court decided that Coles had not impliedly waived LPP in the documents by sending the November Letter. 

What does this mean for the Public Sector?
ACCC v Coles Supermarkets highlights the importance of the relevant context in assessing whether the voluntary disclosure of the gist of a confidential communication constitutes an implied waiver.  Courts tend to look at the practical effect of deeming that confidentiality has been waived, and will consider what is fair in all of the circumstances.

However, there can be any number of situations where disclosing the 'gist' of a privileged communication could be enough to result in a loss of LPP.  The context will be different in each case and may involve complex policy considerations, making it difficult to predict what effect such disclosure will have.

For this reason, it is never wise to reveal the contents of communications with your legal advisers, or documents prepared in relation to legal matters without first obtaining advice.  One can't always, after all, eat one's cake and still have it. 

For advice on this issue, contact:

David Ryan

Managing Principal Solicitor

t 03 8684 0417
david.ryan@vgso.vic.gov.au

Martin Pike

Principal Solicitor

t 03 9032 3007
martin.pike@vgso.vic.gov.au

Matthew Carrazzo

Senior Solicitor

t 03 8684 0497
matthew.carrazzo@vgso.vic.gov.au

Note: Judgement was reserved in the substantive application in the proceeding by Allsop CJ on 21 February 2014.

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[1] In Victoria, Division 1 of Part 3.10 of the EvidenceAct 2008 (Vic) has codified LPP for the purposes of court proceedings to which that Act applies, renaming it ‘client legal privilege’ (CLP).  Some aspects of the privilege are different between the common law and the Evidence Act, none of which are directly relevant for the purposes of this blog post.
[2] In rare cases, statutory powers will abrogate privileges, so that they cannot protect disclosure where these powers are exercised.  See for example, section 143 of the Independent Broad-based Anti-corruptionCommission Act 2011.
[3] The common law was stated in the High Court case of Mann v Carnell (1999) 201 CLR 1 at 13.  Section 122 of the Evidence Act 2008 (Vic) applies essentially the same test as the common law to determine whether a client has impliedly waived CLP.
[4] [2014] FCA 45.
[5] See section 191 of the Evidence Act1995 (Cth), and its equivalent provision in the Evidence Act 2008 (Vic).
[6] At common law, LPP can also attach to confidential documents sent by a third party to a legal advisor so long as they are for the dominant purpose of providing the client with legal advice or for current or contemplated litigation.  The situation is the same under the Evidence Act 2008 (Vic): see section 119(b).