Citation: Office of State Revenue v El Kazzi (No. 2) [2013] NSWLC 19
Court: Local Court of New South Wales
Date: 2 September 2013
Judge(s): Favretto LCM
Background
The accused faced ten Court Attendance Notices (CANs) issued by the Office of State Revenue (OSR) in June 2012. The charges arose from alleged false statements in a First Home Owner Grant application and related stamp duty exemption, false statements made to OSR investigators, and failures to comply with grant conditions.
The accused entered a not-guilty plea but challenged the proceedings on two grounds: a permanent stay application and an objection that several CANs were duplicitous in form. The stay application was refused in a separate decision (El Kazzi (No. 1) [2013] NSWLC 18).
These reasons addressed only the duplicity objections to CAN Sequences 1 and 4 to 10.
Legal Issues
- Whether the statutory offences in question (under the Crimes Act 1900, First Home Owner Grant Act 2000, and Taxation Administration Act 1996) each create a singular offence or multiple offences.
- Whether it was impermissible, on the rule against duplicity, to charge more than one prohibited act or false particular within a single CAN.
- What orders should follow if the CANs were found to be duplicitous, including whether amendment or election by the prosecutor was appropriate.
Decision
The court applied the well-established rule against duplicity, which prohibits a single charge from encompassing more than one offence. The rule serves two core purposes: orderly administration of criminal justice (ensuring the court, jury, and record all reflect a defined single offence) and basic fairness to the accused in knowing what case must be met. These principles were drawn from the High Court's analysis in S v The Queen (1989) 168 CLR 266.
Applying the distinction between alternative factual bases of liability (which create separate offences) and alternative legal formulations based on substantially the same facts (which may not), the court found that the relevant statutory provisions each created a singular offence. The NSW Court of Criminal Appeal's decision in Giam v R (1999) 104 A Crim R 416, which held that s 178BB of the Crimes Act 1900 creates only a singular offence directed at "any statement... in a material particular", was of binding or persuasive authority across the offences charged.
The court found that the "Short Particulars" in the affected CANs offended the rule against duplicity by pleading multiple distinct false or misleading statements as a single charge, where each statement constituted a separate factual basis of liability. The "Description of Offence" sections of the CANs appeared to comply with the Criminal Procedure Act 1986, but the particulars rendered those charges duplicitous on their face.
On the question of remedy, the court noted the prosecutor could either elect which particular to proceed on or seek to amend the CANs. The court declined to resolve the question of whether any amendment should be permitted, observing that the applicant's objections to amendment could only be properly assessed once the prosecutor made an election or filed new charges. Any prejudice or injustice arising from further proceedings would need to be addressed if and when that situation arose.
Orders Made
No orders were made in this decision.
Key Takeaways
- The rule against duplicity prohibits a single charge from alleging more than one offence, serving both the orderly administration of criminal justice and the accused's right to know the case against them.
- Under s 178BB of the Crimes Act 1900, the NSW Court of Criminal Appeal in Giam v R confirmed that only a singular offence is created, directed at a single statement that is false or misleading in a material particular. The Local Court applied this reasoning across analogous statutory offences in this matter.
- The critical distinction when assessing duplicity is between alternative factual bases of liability (which produce separate offences and cannot be combined) and alternative legal formulations of liability arising from the same or substantially the same facts (which may be permissible in a single charge).
- CANs that pleaded multiple distinct false statements as particulars of a single charge were found to be duplicitous on their face, even where the charge description itself was formally compliant.
- A finding of duplicity does not necessarily end proceedings. The prosecutor retains the option of electing which particular to rely upon, or seeking leave to amend, with the question of prejudice to the accused to be assessed in light of the specific steps ultimately taken.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 178BB, s 192G
- Criminal Procedure Act 1986 (NSW), ss 11, 21
- First Home Owner Grant Act 2000 (NSW)
- Taxation Administration Act 1996 (NSW), s 44(1)(a), s 55(a)
- Oaths Act 1900 (NSW)
Cases:
- S v The Queen [1989] HCA 66; (1989) 168 CLR 266
- Chapman v R [2013] NSWCCA 91
- Giam v R [1999] NSWCCA 53; (1999) 104 A Crim R 416
- Stanton v Abernathy (1990) 19 NSWLR 656
- Romeyko v Samuels (1972) 2 SASR 529
- Johnson v Miller (1937) 59 CLR 467
- Office of State Revenue v El Kazzi (No. 1) [2013] NSWLC 18