AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 3 June 2019

R v Thompson; R v Farrugia

[2019] NSWDC 219

Fraud & dishonesty
CONSPIRACY WHETHER LATENT DUPLICITY IN INDICTMENT POWER OF COURT WHERE DUPLICITY FOUND

Citation: R v Thompson; R v Farrugia [2019] NSWDC 219
Court: District Court of New South Wales
Date: 3 June 2019
Judge(s): Smith SC, DCJ

Background

Two accused were on trial on an indictment containing three counts of conspiracy, arising from allegations involving the manipulation of financial records at a company called Hastie Services. Following the Crown's opening address, senior counsel for each accused raised concerns about the adequacy of the opening in describing the scope of the alleged conspiracies.

The Crown delivered a written supplementary opening statement providing further particulars. Before the trial resumed, the accused raised objections to that supplementary opening, contending that it introduced latent duplicity into at least one count and that certain charges remained inadequately particularised.

The court heard argument and delivered its decision, with these written reasons provided the following day. The central dispute concerned whether the Crown's supplementary opening revealed that count 1 was in fact alleging two distinct conspiracies rather than one.

Legal Issues

  • Whether the trial court had power to direct the Crown to make an election or provide particulars in response to a finding of latent duplicity
  • Whether the Crown's supplementary opening introduced latent ambiguity or duplicity into count 1 of the indictment by describing two qualitatively different conspiracies
  • Whether counts 2 and 3 were adequately particularised
  • Whether count 3 disclosed latent duplicity in the same way as count 1

Decision

Issue 1: Court's power to deal with latent duplicity

The court found that it had power to put the Crown to an election, or to require the provision of particulars, as an incident of its power to ensure a fair trial (at [4]-[7]). This power derives from a line of authority including the High Court decisions in Walsh v Tattersall and Johnson v Miller, and the NSW Court of Appeal in Stanton v Abernathy. The Crown's submission that the accused should instead seek a stay was rejected as contrary to the practical approach reflected in those authorities (at [5]).

Issue 2: Latent duplicity in count 1

The court held that the rule against duplicity is a matter of elementary fairness, enabling a defendant to know the precise charge faced (at [8]). Latent ambiguity falls within the concept of duplicity and can, in an appropriate case, lead to quashing an indictment, though lesser remedies are preferred (at [9]).

The Crown's supplementary opening described the original agreement in count 1 as one to improve a reported EBIT result for October 2008 specifically, but also suggested an ongoing agreement to falsify entries "as the need arose." The court found these were qualitatively different conspiracies (at [21]-[23]). The October 2008 agreement was an isolated, time-specific and self-contained matter: it could not serve the same object as an ongoing arrangement, and the reasoning in Saffron (No.1) was distinguishable because there the single overarching object remained constant across multiple businesses (at [20]-[21]). The court found latent ambiguity in count 1 and directed the Crown to elect between the two formulations (at [23]).

Issue 3: Counts 2 and 3

Regarding count 2, the court held there was no requirement for the Crown to be precise about the commencement date of a conspiracy, so no further answer was required (at [27]). Count 3 was found not to contain latent duplicity. The court concluded that the supplementary opening disclosed one agreement with one object (to conceal the true financial position of the company in Western Australia), with the agreement evolving in its means of implementation rather than fragmenting into separate conspiracies. This was analogous to the position in Saffron, where the later acts were described as the "flesh and blood of the skeleton that had previously been agreed" (at [30]).

Orders Made

  • The Crown is directed to answer the following question in respect of count 1: whether the alleged agreement made on or about 7 November 2008 was an agreement to deliberately understate expenses for October 2008 in the general ledger of Hastie Services, or alternatively an agreement to falsify entries in the general ledger to improve reported EBIT results on an ongoing "as needs" basis.

Key Takeaways

  • A trial court has power to put the Crown to an election, or to require particulars, where latent duplicity or ambiguity is found in an indictment. This power operates as an incident of the court's responsibility to ensure a fair trial and is preferred over more drastic remedies such as quashing the indictment or granting a stay (at [4]-[7]).

  • Latent ambiguity falls within the concept of duplicity. Where a Crown opening reveals that a single conspiracy count may in fact be alleging two distinct agreements with different objects, a direction to elect between them is the appropriate remedy (at [9], [23]).

  • The distinction between a continuing conspiracy and two separate conspiracies turns on whether the object of the agreement remained the same throughout. Where an original agreement had a time-specific and self-contained object, the court found it could not logically extend to encompass a broader ongoing arrangement with a different object (at [21]-[22]).

  • An agreement that evolves in its means of implementation, while retaining a single constant object, does not thereby fragment into multiple conspiracies. The District Court applied this principle to count 3, finding the facts analogous to those in Saffron (No.1) (at [30]).

  • The Crown is not required to identify the precise date on which a conspiracy began or the exact act marking its inception. Imprecision as to commencement does not, of itself, render a charge inadequately particularised (at [25]-[27]).

Legislation and Cases Referenced

Legislation
- Corporations Act 2001 (Cth)
- Criminal Code

Cases
- B v R [2008] NSWCCA 85
- Director of Public Prosecutions v Merriman [1973] AC 584
- Gerakiteys v R (1984) 153 CLR 317
- Johnson v Miller (1937) 59 CLR 467
- R v Bolus [2003] NSWSC 658
- R v Mitchell [1971] VR 46
- Saffron (No.1) (1988) 36 ACrimR 262
- Stanton v Abernathy (1990) 19 NSWLR 656
- Walsh v Tattersall (1996) 188 CLR 77