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2.2 - Duplicity

  1. The rule against duplicity prohibits the prosecution alleging two or more offences in a single charge in a charge-sheet or indictment (Rixon v Thompson (2009) 22 VR 323; [2009] VSCA 84; Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26; R v Khouzame & Saliba [1999] NSWCCA 173).
  2. The rule against duplicity is based on the following considerations:
  3. Duplicity may take two forms:
  4. Patent duplicity relates to the form of the charge-sheet or indictment. It does not depend on the evidence the prosecution will adduce, or the service of a brief of evidence or depositions (Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26; DPP v Kypri (2011) 33 VR 157; [2011] VSCA 257).
  5. The rule against duplicity is a rule of law. The presiding judicial officer confronted with a charge-sheet or indictment that breaches the rule does not exercise a discretion when determining how to remedy the breach (Rixon v Thompson (2009) 22 VR 323; [2009] VSCA 84).
  6. While the rule against duplicity is clearly established, courts have not determined a fixed rule for determining when a charge breaches the rule. Instead, the matter is a question of fact and degree (Stanton v Abernathy (1990) 19 NSWLR 656; Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26; Brinkworth v Dendy (2007) 97 SASR 416; [2007] SASC 120; R v Heaney (2009) 22 VR 164; [2009] VSCA 74).
  7. The prohibition on duplicity operates equally at the summary, committal and trial stages of the criminal process (Rixon v Thompson (2009) 22 VR 323; [2009] VSCA 84; Stanton v Abernathy (1990) 19 NSWLR 656).
  8. Compliance with the rule against duplicity may lead to the prosecution filing additional charges. This is not a valid basis for rejecting a complaint of duplicity (Rixon v Thompson (2009) 22 VR 323; [2009] VSCA 84).
  9. When a party raises the issue of duplicity, the presiding judicial officer must determine whether the charge is duplex and whether an exception applies. He or she must not concentrate solely on whether the accused is exposed to unfairness and may not reject the complaint on the basis that there is no unfairness (Rixon v Thompson (2009) 22 VR 323; [2009] VSCA 84).

    Overcoming Duplicity

  10. The prosecution may cure a duplex charge by:
  11. Directions that the jury must make unanimous findings of fact can address the risk that the jury may reach a compromise verdict on a charge affected by latent duplicity. The judge may tell the jury that all jurors must agree that the accused committed one of the alleged acts before considering the other elements of the offence in respect of that act (R v Heaney (2009) 22 VR 164; [2009] VSCA 74. See also R v Holmes [2006] VSCA 73; R v Khouzame & Saliba [1999] NSWCCA 173; R v Trotter (1982) 7 A Crim R 8; S v R (1989) 168 CLR 266; [1989] HCA 66).
  12. A charge-sheet or indictment that alleges alternative offences in separate charges is not duplex. The alternatives may be common law or statutory alternatives and the court must not take verdicts on the alternative offences if the accused is found guilty of the primary offence (R v Warburton & Anor (2006) 14 VR 235; [2006] VSC 446).
  13. Similarly, a charge is not duplex when the evidence reveals a single offence, but that the jury may be able to convict on several alternate legal bases. This most often arises in homicide cases, and jurors are routinely directed that they do not need to unanimously agree on the path to guilt, unless the different bases involve materially different issues or consequences (see Walsh v R [2002] VSCA 98).

    Exceptions to the Rule Against Duplicity

  14. Despite the strictness of the rule against duplicity, prosecutors should not scrutinise the alleged conduct in fine detail and charge as many offences as possible. For example, it is not necessary to charge every blow against a victim as a separate assault or to bring separate charges of theft for every item taken during a burglary (R v Slade (1982) 7 A Crim R 43; DPP v Esso (No 5) [2001] VSC 103; R v Whelan [1973] VR 268; R v Khouzame & Saliba [1999] NSWCCA 173; Gardner v Caporn [2005] WASCA 153; DPP v Merriman [1973] AC 584).
  15. A charge is not duplex when the alleged conduct:
  16. This will often be a question of fact and degree. Previous cases may provide some guidance on how the rule against duplicity has applied on other occasions (see Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26; R v Heaney (2009) 22 VR 164; [2009] VSCA 74; R v Eades (1991) 57 A Crim R 151; Brinkworth v Dendy (2007) 97 SASR 416; [2007] SASC 120; Walsh v R [2002] VSCA 98).
  17. The operation of these exceptions depend on how the prosecution puts its case. In some cases, there may be multiple possible formulations of the offences charged, some of which will be impermissibly duplex, while others will allege activity of an ongoing nature. The court must apply the rule against duplicity and the exceptions based on how the prosecution has chosen to put its case and not on the fact that an alternative formulation may exist which is not duplex (see Kartawidjaja v Rowe [2021] VSC 143, [126]-[131]).
  18. The court should consider the following factors when determining whether a charge that involves several separate criminal acts may be valid:
    1. the connection of the events in point of time;
    2. the similarity of the acts;
    3. the physical proximity of the place where the events happened; and
    4. the intention of the accused throughout the conduct (Walsh v Tattersall (1996) 188 CLR 77 at 108 per Kirby J).
  19. The court may also need to consider the nature of the offence to determine whether each act is a separate offence or whether it can be committed as a continuing or composite offence. This will often depend on the language of the statute in question and the "gist" of the offence (see Brinkworth v Dendy (2007) 97 SASR 416; [2007] SASC 120; R v Lo Presti [2005] VSCA 259; c.f. Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26 per Kirby J).
  20. Breaks in time or location between particular acts and intervening events may give rise to separate offences. However, it will be a question of fact and degree whether a particular gap gives rise to a new offence or whether the old offence continues despite the break (see R v DD (2007) 19 VR 143; [2007] VSCA 317; Gardner v Caporn [2005] WASCA 153; Brinkworth v Dendy (2007) 97 SASR 416; [2007] SASC 120; R v Goldman [2007] VSCA 25; R v Chen, Unreported, QSC, 21 October 1997; R v Suckling [1998] VSCA 60).
  21. The following offences may be committed by a course of continuous conduct and a single charge covering the whole conduct will not be duplex:
  22. It is not appropriate to characterise conduct as a continuing act when there is a realistic possibility that the jury may not agree on its verdict concerning all the alleged acts. This may occur because of variations in the strength of the evidence, or because the accused may have a defence to part of the alleged conduct (R v Khouzame & Saliba [1999] NSWCCA 173; Rixon v Thompson (2009) 22 VR 323; [2009] VSCA 84; R v Rigoli [2006] VSCA 1).
  23. An appellant raising a complaint of latent duplicity regarding a continuing act for the first time on an appeal may need to demonstrate that the duplicity affected the conduct or the outcome of the proceeding (R v Goldman [2007] VSCA 25. But see Rixon v Thompson (2009) 22 VR 323; [2009] VSCA 84; Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26).
  24. Additionally, a course of conduct charge, within the meaning of clause 4A, Schedule 1 of the CPA 2009, is a statutory exception to the rule against duplicity. This type of charge is available only for certain specified offences.

    Duplicity and Rolled-Up Charges

  25. An accused may waive the prohibition on patent duplicity by pleading guilty to a "rolled-up" charge. A "rolled-up" charge alleges a series of separate offences in a single charge and is permissible only with the consent of the accused and on a plea of guilty. In these circumstances, the accused is not exposed to the risks of uncertainty, complexity or unfairness that would normally arise due to duplicity (R v El-Kotob (2002) 4 VR 546; [2002] VSCA 109; R v Jones [2004] VSCA 68; R v Beary (2004) 11 VR 151; [2004] VSCA 229).
  26. Use of a rolled-up charge is only permissible when the accused pleads guilty. The prosecution and defence may not require a jury to determine the accused’s guilt on a rolled-up charge in a negotiated indictment (Tyson v R (2005) 16 NTLR 161; [2005] NTCCA 9).

    Duplicity and Sexual Offences

  27. In sexual offences, the mode of penetration will generally not be an element of the offence. An offender is not prejudiced or embarrassed in his or her defence where the prosecution alleges penetration with one of several possible items. The jury only need to unanimously agree on the fact of sexual penetration, rather than the means (R v Castles (2007) 17 VR 329; [2007] VSC 561).
  28. It is not appropriate to divide a charge of rape into separate offences of an initial penetration and a failure to withdraw (compare Crimes Act 1958 s38(2)(a) and (b)). Rape is a continuing act and the jury do not need to unanimously agree on the point when the accused became aware that the complainant was not consenting (see R v Yankovski (2007) 17 VR 315; [2007] VSCA 259).
  29. The prosecution should generally lay separate charges if the evidence reveals several discrete acts of sexual penetration. However, in some cases, the court may treat a series of sexual acts of the same character as a single activity, in the same way that courts will often treat a series of punches as a single assault. This approach will only be suitable if the issues in relation to each alleged act of penetration within an episode are the same (see WGC v R (2007) 233 CLR 66; [2007] HCA 58; R v Khouzame & Saliba [1999] NSWCCA 173; PDI v R [2011] VSCA 446; Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26).
  30. Courts have disapproved prosecution attempts to adopt the nomenclature of a ‘composite charge’ to describe multiple acts of sexual penetration alleged in a single charge. Such a term is not defined in the authorities and, where it is used as a synonym for a ‘rolled-up charge’ on a plea of guilty, prosecutors should use the more established terminology (Holland v The Queen [2018] VSCA 241, [6]; Schembri v The Queen [2020] VSCA 217, [57]-[59]).
  31. In circumstances where the accused has allegedly committed the same type of sexual offence on several occasions over a period of time, a course of conduct charge may be used. A course of conduct charge is available to the prosecution when the incidents of the offence amount to a course of conduct having regard to their time, place, purpose of commission and other relevant matters (CPA 2009 Schedule 1, clause 4A(1), (8)).
  32. Alternatively, an offence of "persistent sexual abuse" requires proof that the accused, on three or more occasions, committed an act that would constitute one of several listed sexual offences within a designated period (Crimes Act 1958 s47A).
  33. The Crown may specify the alleged sexual offences as particulars of an offence under s47A and may also charge the acts as separate alternative offences. This does not give rise to latent or patent duplicity (R v GJB (2002) 4 VR 355; [2002] VSCA 54).
  34. The Crown may not frame the particulars of a charge of "persistent sexual abuse" to exclude certain offences within the designated period. The offence concerns all sexual offences by the accused against the complainant in the designated period. Charges for individual sexual offences are alternative charges and the court may only take a verdict on those charges if the jury finds the accused not guilty of the charge of persistent sexual abuse (R v GJB (2002) 4 VR 355; [2002] VSCA 54; R v Menta [2004] VSCA 57). See Persistent Sexual Abuse of a Child Under 16 in the Victorian Criminal Charge Book.

    Duplicity and Course of Conduct Charges

  35. A course of conduct charge is a single charge for a single offence, which incorporates multiple incidents of the same offence committed on more than one occasion over a specified period (CPA 2009 Schedule 1, clause 4A(1),(2),(6)).
  36. Course of conduct charges enable the prosecution of a series of offending, where the individual instances of the offending are not disclosed in enough detail to be prosecuted as individual offences. The course of conduct charge is an exception to rule against duplicity (CPA 2009 Schedule 1, clause 4A(13)).
  37. This form of charge was introduced to deal with repeat and systematic sexual offending. As a rule of criminal procedure, it is a method of pleading a charge, rather than a discrete offence (compare Crimes Act 1958 s47A – Persistent sexual abuse of a child under 16).
  38. Course of conduct charges are available only for the following offences (CPA 2009 Schedule 1, clause 4A(1)):
  39. Course of conduct charges are available only if each incident is an offence under the same provision. Where there are multiple instances of more than one offence, separate course of conduct charges must be filed in respect of each relevant offence (CPA 2009 Schedule 1, clause 4A(2)).
  40. In a course of conduct charge, more than one type of act may be alleged to prove an element of the relevant offence. In relation to sexual offences, an ‘act’ in this context includes sexual penetration as defined by s37D and sexual touching within the meaning of Subdivision (8A) (rape and sexual assault) of the Crimes Act 1958 (CPA 2009 Schedule 1, clause 4A(3),(4)). For example, a single course of conduct charge for a sexual offence can allege acts of digital penetration as well as acts of penetration with an object. However, the Director’s Policy on course of conduct charges is that, unless the accused is pleading guilty, the charge should only allege a single type of conduct, and multiple charges should be used for different types of conduct (Director’s Policy 54, [59]-[60]).
  41. For a sexual offence, each incident must relate to the same complainant (CPA 2009 Schedule 1, clause 4A(2)).
  42. The consent of the Director of Public Prosecutions must be obtained before a charge sheet containing a course of conduct charge for a sexual offence is filed (CPA 2009 Schedule 1, clause 4A(12)). While the Director’s consent is not necessary for other charges, it is expected that police will obtain advice from the OPP before using a course of conduct charge in relation to fraud offending (Director’s Policy 54, [64]).
  43. A course of conduct charge must include a statement to the effect that it is a course of conduct charge (CPA 2009 Schedule 1, clause 4A(5), (12)).
  44. It is not necessary to prove an incident of the offence with the same degree of specificity as to date, time, place, circumstances or occasion as would be required if the accused were charged with an offence constituted only of that incident (CPA 2009 Schedule 1, clause 4A(9)). See 2.1.2 - Particulars.
  45.  However, course of conduct charges may be used only when the incidents, taken together, amount to a course of conduct having regard to their time, place or purpose of commission and any other relevant matter. The prosecution must prove the course of conduct beyond reasonable doubt (CPA 2009 Schedule 1, clause 4A(2)(8)).
  46. Both rolled-up charges and course of conduct charges include multiple instances of the same offending in a single charge. However, unlike rolled-up charges, course of conduct charges require neither a guilty plea nor the consent of the accused.
  47. The Director’s Policy on course of conduct charges sets out the following criteria which must be considered in deciding whether to use a course of conduct charge:
  48. In addition, course of conduct charges should not be used to overcome evidentiary difficulties arising from a defective investigation (Director’s Policy 54, [31]).
  49. However, a course of conduct charge might be used to avoid what would otherwise be an overloaded indictment (Director’s Policy 54, [32]-[34]).
  50. The Policy indicates that the choice of whether to use a course of conduct charge or a charge of the type permitted under the principles from R v Giretti (1986) 24 A Crim R 112 or DPP v Merriman [1973] AC 584 is to be made based on the evidence available in the case (Director’s Policy 54, [16]-[18]).
  51. The Policy also indicates that the prosecution opening should be as specific as the evidence allows and include an indication of the number or frequency of occasions. Imprecise terms such as ‘regularly’ or ‘on a number of occasions’ should be avoided (Director’s Policy 54, [23]).
  52. Finally, the Policy outlines the Director’s view on the interaction between course of conduct charges and other provisions such as serious offender provisions, continuing criminal enterprise offending and sex offender registration (Director’s Policy 54, [39]-[47]).

    Duplicity and Conspiracy

  53. It is undesirable for an accused to be charged with both conspiracy to commit crime and the completed offence. The prosecution should charge the substantive offence only (R v Hoar (1981) 148 CLR 32; [1981] HCA 67; R v El-Kotob (2002) 4 VR 546; [2002] VSCA 109).
  54. While an indictment containing charges for both conspiracy and the completed offence will not be bad for duplicity, the sentencing judge or magistrate must be careful to avoid double punishment (R v El-Kotob (2002) 4 VR 546; [2002] VSCA 109).
  55. If the Crown intends to charge a person with both conspiracy and the associated substantive offence, it should include those offences in a single indictment. It is not appropriate to charge the accused with conspiracy and the substances offences in separate proceedings (R v Hoar (1981) 148 CLR 32; [1981] HCA 67).
  56. Conspiracy to defraud is defined by the proposed object of the conspiracy, rather than the means of carrying out the conspiracy. Particulars of overt acts or planned overt acts do not render a charge of conspiracy to defraud duplex (R v Mitchell [1971] VR 46).

    Duplicity and Perjury

  57. When the accused is charged with perjury, it is unclear whether each lie is a separate offence or whether multiple lies may be pleaded as particulars of a single charge of perjury. There have been decisions each way and the Court of Appeal expressly reserved the point for future consideration when it last arose (see, R v Hoser [1998] 2 VR 535 at 544-545 per Brooking JA).

Footnotes:

[1] - Despite an obiter statement that suggest the contrary in R v Trotter (1982) 7 A Crim R 8, it is likely that a court cannot allow the prosecution to amend an indictment during a trial to cure latent duplicity by charging separate offences unless the court discharges the jury. See 2.1.3 - Amendment of Charge-Sheet or Indictment

[2] - If the prosecution alleges a "business of trafficking" over a period of time, it will need to establish that the accused engaged in that conduct. This will often require the jury to draw an inference from a number of individual acts of trafficking. The prosecution may also allege separate charges of trafficking in respect of each transaction in the relevant period, either instead of, or as an alternative to, a "business of trafficking" charge (see R v Giretti & Giretti (1986) 24 A Crim R 112; R v Te [1998] 3 VR 566).

Last updated: 30 August 2021

See Also

Chapter 2 – Commencement of Proceedings

2.1 - Charge-Sheet and Indictment

2.3 - Joinder of Charges

2.4 - Severance of Charges

2.5 - Summary and Indictable Offences

2.6 - Time Limits

2.7 - Penalty and offence information