In City of Swan v Bayblue Holdings Pty Ltd [2015] WASCA 227, the WA Supreme Court of Appeal had cause to revisit the rule against duplicity in a charge involving a contravention of thePlanning and Development Act 2005 (PD Act).  

Although duplicity has been the subject of much judicial consideration in the past, and the rule against it has been codified in the Criminal Procedure Act 2004 (CPA), the case is a timely reminder of the difficulties in determining whether a particular charge is duplex and the potential consequences of getting it wrong.

What is duplicity?

Duplicity occurs where there is a single charge which on its face (patent duplicity) or on the evidence adduced or to be adduced at trial (latent duplicity) gives rise to more than one offence.  

The CPA makes it clear that except in permitted circumstances, a charge must allege one offence only. A charge made under the PD Act is not a permitted circumstance.

Why is duplicity unfair?

Duplicity in a charge poses a significant risk of injustice. This injustice arises from the possibility of the accused being convicted of one of a number of distinct offences.  

Fairness requires that prosecutors define with accuracy each criminal offence they intend to prosecute and identify the elements of the offence(s) necessary to secure a conviction. That information assists the accused in deciding how to plead to the charge, clarifies contested questions about the admissibility of evidence relevant to the offence(s) specified and contributes to accurate sentencing where a conviction is recorded.

The facts

Bayblue owned an industrial parcel of land in Malaga comprising a large factory warehouse building and hardstand car park area (“Land”). The tenant of the Land, Steelmakers Pty Ltd (“Steelmakers”) operated a steel fabrication business from the Land.  

The City issued a direction to Bayblue on 18 July 2011 under section 214(3) of the PD Act requiring it to pull down and remove unapproved alterations to the factory warehouse building (“Building”) comprising the following:

  • an extension and enclosure of a small section of the Building’s verandah (this had been carried out by Steelmakers in 2007 after Bayblue had become the owner of the land) (Enclosure); and 
  • other alterations to the Building’s canopy (this had been carried out by the previous owner of the Land beforeBayblue became the owner of the Land) (Other Alterations).

Bayblue applied for retrospective planning approval for the unauthorised Enclosure and Other Alterations which was subsequently granted.  

The City then commenced prosecution proceedings against Bayblue for failing to comply with the section 214(3) direction within 60 days of being given the direction.  

Bayblue (without legal representation) pleaded guilty to the charge and received a fine of  $348,000.  

Bayblue subsequently appealed against its conviction on the basis that it had not carried out the Enclosure (undertaken by Steelmakers) or the Other Alterations (undertaken by a previous owner of the Land).  

Kenneth Martin J allowed the appeal (by finding that Bayblue had not undertaken the Enclosure and Other Alterations) and set aside Bayblue’s conviction on the charge: see Steelmakers Pty Ltd v City of Swan [2014] WASC 449.  

The City appealed to the Court of Appeal contending that Bayblue, as owner at the time of the development, was aware of and had permitted or acquiesced to the Enclosure development being undertaken by Steelmakers. The City did not appeal against the primary judge’s finding that Bayblue had not carried out the development comprising the Extensions.  

Although the Court of Appeal agreed that Bayblue had undertaken the Enclosure development, it also found that the charge, as formulated in the City’s prosecution notice, was latently duplex.

Why was the charge duplex?

The direction given by the City required Bayblue to remove two structures - the earlier (Other Alterations) and the later (Enclosure) developments – that were together defined in the direction notice as the “Extensions”. However, these were separate structures erected at different times by different persons.  

The charge against Bayblue alleged a single failure by Bayblue to comply with the direction, but the facts alleged by the City in support of the charge identified two failures to act in compliance with that direction.  

The City had conceded in its appeal that Bayblue had a good defence to the charge that it had failed to comply with the direction to pull down the earlier (Other Alterations) development while Bayblue had conceded on appeal that it had no defence to the charge of failing to remove the later (Enclosure) development.  

Accordingly, the single charge as alleged in the prosecution notice raised more than one offence and exposed Bayblue to the possibility of being convicted of two separate and distinct offences (which had in fact eventuated in the Magistrates Court).    

When is a charge not duplex?  

The rule against latent duplicity will not be breached where the multiple acts relied upon by the prosecution are so close in time and place that they can be viewed as one composite activity or one criminal enterprise: see Gardner v Caporn [2005] WASCA 153.  

However, in its prosecution of Bayblue, the City had relied on multiple acts that were clearly not close in time and could not be regarded as “one composite activity”.    

Consequences of a charge tainted by duplicity  

If the existence of latent duplicity becomes apparent, it is open to the Magistrate, on his or her own initiative, or on the application of the prosecutor or the accused, to amend the charge so that each of the offences is the subject of a separate charge. However, such an amendment could potentially result in costly adjournments of the prosecution.

There is also a risk that a Court may refuse to amend a charge if it is satisfied that:

  1. the amendment is material to the merits of the case;
  2. the amendment would prejudice the accused’s defence of the charge; and
  3. an adjournment would not overcome the prejudice.

In the present case, the City was fortunate that the amendment was not opposed by Bayblue and the Court of Appeal did not consider that Bayblue would be prejudiced by such amendment.  

However, it is easy to envisage a scenario on appeal where a charge tainted by latent duplicity results in a hard fought conviction being set aside.