R v Banks [2003] ACTSC 68 (27 August 2003)

Last Updated: 2 September 2003

THE QUEEN v WAYNE ALLEN BANKS

[2003] ACTSC 68 (27 August 2003)

CRIMINAL LAW - Procedure - duplicity - indictment alleges single count of possession of various items of stolen property - whether bad for duplicity - indictment not defective.

Crimes Act 1900, s 105

Theft Act 1968 (UK)

Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77

S v The Queen [1989] HCA 66; (1989) 168 CLR 266

Clive Ormond Smythe (1981) 72 Cr App R 8

DPP v Merriman [1973] AC 584

R v Moussad [1999] NSWCCA 337; [1999] 152 FLR 373

Khaled Hamzy (1994) 74 A Crim R 341

Griffiths v Freeman [1970] 1 All ER 1117

Williams: Property Offences, 3^rd ed, Law Book Co 1999, 297

No SCC 40 of 2003

Judge: Connolly J

Supreme Court of the ACT

Date: 27 August 2003

IN THE SUPREME COURT OF THE )

) No SCC 40 of 2003

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

WAYNE ALLEN BANKS

ORDER

Judge: Connolly J

Date of Order: 11 August 2003

Date of Judgment: 27 August 2003

Place: Canberra

THE COURT ORDERS THAT:

1. There be no order made to direct the Director of Public Prosecutions to amend the indictment.

1. Wayne Allen Banks was to be arraigned on 25 August 2003 on an indictment dated 8 July 2003 charging that -

On the 30^th day of October 2002 at Canberra in the Australian Capital Territory Wayne Allen Banks dishonestly had in his possession stolen property, knowing or believing that property to be stolen property.

2. The indictment then particularises the stolen property as being property belonging to some 44 identified persons or organisations, with each item of property listed. There were a total of 138 items listed.

3. The accused indicated that he would challenge the indictment on the ground that it is bad for duplicity. A directions hearing was held on 8 August 2003, and after considering the comprehensive submissions made in writing and orally by Mr Thomas, for the accused, and Mr Todd, for the prosecution, I indicated on 11 August 2003 that I would not direct the Crown to revise the indictment, and that I considered the form of the indictment to be good in law. I said I would publish my reasons at a later date. These are my reasons.

4. On 26 August 2003 the accused pleaded guilty to the indictment, although the prosecutor amended the indictment, with Mr Thomas' consent, to delete two particulars of property allegedly stolen from one organization.

5. The offence with which the accused is charged is that set out in s 105 of the Crimes Act 1900 (the Crimes Act), handling stolen property. The section provides that -

(1) A person who, dishonestly-

...

(b) has stolen property in his or her possession; or

...

and who knows or believes that property to be stolen property, is guilty of an offence punishable, on conviction, by imprisonment for 14 years.

6. The Crown's case is that on 30 October 2002 police executed a search warrant on premises occupied by the accused, and that he was on that date in possession of the particularised property. The defence's objection to the form of the indictment is that it is bad for duplicity in that it alleges more than one offence.

7. Duplicity occurs where more than one offence is joined in one count in an indictment. The position was concisely stated by Kirby J in Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77 at 107 that -

... a prosecutor may not ordinarily charge in one count of an indictment, information or complaint two or more separate offences provided by law.

8. A more expansive statement of the law, but to the same effect, is that of Gaudron and McHugh JJ in S v The Queen [1989] HCA 66; (1989) 168 CLR 266 where their Honours said at 284-285 -

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. ...

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.

9. It is the submission of Mr Thomas that the offence created by s 105 of the Crimes Act in relation to the possession of stolen property should be read to create a separate offence, either to every individual item of property, or at least to create a separate offence in relation to property said to belong to each individual owner. With respect to this submission, it is unsupported by authority, and indeed it seems to be accepted as good law that the handling or possession of stolen property can properly be laid as a single count where a large quantity of allegedly stolen goods are said to be in the possession of the accused.

10. The position, it seems to me, is best stated by the English Court of Appeal in Clive Ormond Smythe (1981) 72 Cr App R 8, where the Court (Cumming-Bruce LJ, Kilner Brown and Hollings JJ ) said at 13 -

But what if, as in this case, the finding of the whole hoard of stolen property is put into one compendious count? Is that count bad for duplicity, as the appellant contends? On its face the count is clearly not so.

...we can envisage cases where in the context of an "Alladin's Cave", it would be quite impossible to identify and segregate a distinct and separate handling for a large number of unidentifiable receptions into possession. Common sense and justice would indicate that the prosecution should not be compelled to formulate perhaps as many as fifty counts in order to account for every possibility of separate receipt.

11. In Smythe's case these remarks were dicta, as the Court was considering a count of receiving, and they held that Parliament, in the Theft Act 1968 (UK), must have intended to create an offence relating to a specific single finite activity - so that goods "received" at one point of time would be one offence, and goods received on another day would create a separate offence.

12. The Crown case here is that the goods were stolen over a period ranging from years to weeks before the execution of the search warrant. If the accused was charged with receiving, it seems to me that it would be necessary to identify in separate counts the point at which he was said to have received particular goods or sets of goods. But the ACT legislature, in the Crimes Act, has created a broader offence of "possession" of stolen goods, and it seems to me that this usage must signify that the single offence is created when a person is found to be in possession of property. The quantity of the property and the point at which it came into possession is not material for the establishment of the charge. The offence of possession of stolen goods in the Crimes Act, it seems to me, fits precisely the description of the "Alladin's Cave" scenario in Smythe's case, and it follows that a single charge is not bad in law.

13. There is some potential tension between Australian and English authorities on the point at which a course of conduct may permit a series of matters to be formulated as one charge. In DPP v Merriman [1973] AC 584 Lord Diplock said at 607:

The rule against duplicity, viz that only one offence should be charged in any count of an indictment...has always been applied in a practical, rather than in a strictly analytical way for the purpose of determining what constituted one offence. Where a number of acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the eighteenth century, to charge them in a single count of an indictment.

14. This approach has been endorsed in a series of intermediate appeal courts in Australia in cases such as R v Moussad [1999] NSWCCA 337; [1999] 152 FLR 373 and Khaled Hamzy (1994) 74 A Crim R 341. In Hamzy's case, which concerned the supply of a prohibited substance, Hunt CJ at CL said at 349 -

I see no reason why the concept of one criminal enterprise or one criminal activity should be interpreted narrowly. Obviously enough, the fewer the number of individual acts, the fewer people and the shorter the period of time involved, the less likely that there could be any unfairness to the accused, but the issue of unfairness is dealt with separately from the issue as to whether the individual acts could fairly and properly be so identified. In the present case, it would have presented a totally unreal picture of the activities alleged against the appellant if anything less than the total picture had been presented to the jury.

15. Although in Walsh v Tattersall, Kirby J indicated that a stricter view might be appropriate in Australia, he acknowledged at 107 that -

If a precise understanding of the charge laid, although evidenced by multiple acts, is that it represents a single crime, then a single count is permissible.

16. It seems to me that it is not necessary to rely on the "course of conduct" type of argument from Merriman's case and Hamzy's case to rule that this indictment is not bad in law. The offence of possession of stolen goods created by s 105 creates a single crime when a person is said to be, at a single point of time, in this case the date of the execution of the search warrant, in possession of stolen property. I see nothing in the form of s 105 to suggest that the Parliament intended the words "stolen property" to be read down, as Mr Thomas urges, to "a single item of stolen property". That this would create artificiality if it were so read down is illustrated by the particulars of the property shown on the indictment - one item being described as "fawn vinyl bag containing 5 brass cymbals". Is this one item of property, or six, being the bag and the cymbals? Such would be the nature of the enquiry necessary if Mr Thomas' argument, that s 105 requires the charging of a separate offence for each item of property, was to succeed.

17. I note that in the discussion of the problems of duplicity arising under the handling of stolen property count in Williams: Property Offences, 3^rd ed, Law Book Co 1999 at 297, the learned author notes the potential difficulties where receiving and handling, as separate concepts, are rolled into one charge, but in many of the authorities there cited, the form of the indictment particularises the goods the subject of the charge and these can involve large quantities of goods.

18. I am satisfied that the form of the indictment, that charges that the accused was in possession of property on the specific date, is appropriate. The indictment then goes on to particularise the property. This form of indictment is that approved in Griffiths v Freeman [1970] 1 All ER 1117 at 1118 per Lord Parker CJ, in relation to a charge of handling stolen goods -

It seems to me accordingly that it is sufficient to allege a handling of goods contrary to the section, but that in the ordinary way particulars should be given in order to enable the accused to understand the ingredients of the charge which he has to meet.

19. The Crown has in this indictment particularised with a high degree of detail the property which it will say the accused had in his possession. This, it seems to me, is appropriate and in accordance with the basic proposition of fairness underlying the doctrine of duplicity.

20. I therefore ruled that the indictment was not bad in law.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 27 August 2003

Counsel for the prosecution: Mr C Todd

Solicitor for the prosecution: ACT Director of Public Prosecutions

Counsel for the defence: Mr R Thomas

Solicitor for the defence: Frank Wilson Solicitor

Date of hearing: 8 August 2003

Date of Order: 11 August 2003

Date of judgment: 27 August 2003