The rule against duplicity in disciplinary charges

‘Quis custodiet ipsos custodes?’, a Melbourne lawyer’s criminal law blog,  explained the criminal law rule against duplicity here.  I am not much interested in it from a professional discipline point of view, and it seems the courts tend not to get over-excited about it either (though the lawyer made some progress with it in Law Society of NSW v Shalovsky [2008] NSWADT 14).  In the course of my readings about other things, I came across the Court of Appeal’s discussion of the principle as applied in a professional discipline prosecution of a lawyer in Woods v The Legal Ombudsman [2004] VSCA 247. Despite the numbering below, the first paragraph is in fact [39]:

1. The rule against duplicity ordinarily prohibits a prosecutor from charging in one count of an indictment, presentment, information or complaint two or more offences provided by the law.[11] It seems plain enough that the basis for the rule is fairness to the defendant in the sense of his or her being informed, at the very outset, what is the specific offence which is being alleged and, if it is established, to have certainty of what charge he or she has been found guilty. Thus, as Evatt, J. explained in Johnson v. Miller[12]:

“It is an essential part of the concept of justice in criminal cases that not a single piece of evidence should be admitted against a defendant unless he has a right to resist its reception upon the ground of irrelevance, whereupon the court has both the right and the duty to rule upon such an objection. These fundamental rights cannot be exercised if, through a failure or refusal to specify or particularize the offence charged, neither the court nor the defendant (nor perhaps the prosecutor) is as yet aware of the offence intended to be charged. Indeed the matter arises at an even earlier stage. The defendant cannot plead unless he knows what is the precise charge being preferred against him. If he so chooses, a defendant has a right to plead guilty, and therefore to know what it is he is being called upon to answer.”

A like view was expressed by Gaudron and McHugh, JJ. in S v. The Queen[13] and by Kirby, J. in Walsh[14].

2. Nevertheless, as Kirby, J. recognised in Walsh[15] the rule is not absolute, his Honour giving the example of offences such as keeping a brothel, harassment and trafficking in drugs, where the relevant conduct might be constituted by activity over an extended time, thus permitting multiple acts to be quite properly charged in a single count. Although his Honour opined that little help was afforded by saying that the test is whether multiple acts can “fairly and properly” be identified as part of the same criminal enterprise or activity, he recognised that exceptions to the general rule against duplicity have been allowed where the multiple acts relied on by the prosecution are so close in time and place that they can be viewed as one composite activity or where the offence is one that can be classified as continuing in nature. And, as Lord Diplock said in Director of Public Prosecutions v. Merriman[16]:

“[t]he rule against duplicity… 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.”

Although Kirby, J. was critical[17] of what he saw as the “more lenient view” of duplicity adopted by Lord Diplock in Merriman, Dawson and Toohey, JJ. in Walsh referred to the above-cited passage without disapproval[18], their Honours also acknowledging[19] that whilst “… the practice of laying charges of a compendious kind can place an accused in a position of difficulty … in most cases the uncertainty can be dispelled by further and better particulars.”

3. As is apparent, the above cases were concerned with charges brought for breach of the criminal law. In respect of disciplinary proceedings, particularly those brought under legislation that is concerned with protection of the public interest, as was the case here, and as Mr. Brett recognised, rightly, I think, the rule against duplicity ordinarily does not apply strictly. Nevertheless, the underlying basis of the rule – fairness to the defendant and entitlement to natural justice – can have operation in the context of such disciplinary proceedings. I think that is what the Full Court[20] in R. v. Solicitors’ Disciplinary Tribunal; Ex parte L, a solicitor[21] meant when it accepted that the doctrine of duplicity could operate in tribunal proceedings. Their Honours said[22], by way of obiter:

“It is sufficient to say that a solicitor presented before a full hearing of the Solicitors’ Disciplinary Tribunal should be made clearly aware, before the hearing commences, of that with which he is charged, and what material facts are alleged to constitute the charge or charges against him: see Gee v General Medical Council [1987] 1 WLR 564, at p. 566 (HL); Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 per Dixon J, at p. 489; Evatt J, at pp. 495 and 497. If a course of conduct is relied upon, it should be made clear that this is so – for duplicity can apply to charges before the domestic tribunals and lead to the striking out of charges suffering from that defect.”[23]

4. That the underlying basis of the rule against duplicity will have operation in disciplinary proceedings of the character now under consideration is illustrated by the cases referred to below which also highlight that, although the courts may intervene where the charge before a tribunal combines a series of similar complaints, in order to ensure that natural justice and certainty be accorded to the defendant, such intervention will ordinarily be made, not so much because there has been a breach per se of the rule against duplicity, but rather because the fundamental basis which underlies that doctrine has been offended. For example, in Gee v. General Medical Council[24] the appellant doctor received notice of a charge of serious professional misconduct, alleging that over a period of 13 months he had abused his professional position by repeatedly supplying to individual patients certain drugs. The doctor claimed that the charge was bad for duplicity as it contained a number of separate allegations relating to eight patients. The House of Lords rejected this claim, Lord Mackay of Clashfern (with whom the other Law Lords agreed) stating[25]:

“…the rule against duplicity…would be impossible to apply universally to cases relating to conduct before the [professional conduct committee]. The rule is necessary in the interests of fairness where the only answer that can be returned in respect of a particular charge is guilty or not guilty to the whole charge. It is not necessary in order to obtain fairness where…the [committee] is required to make a determination which distinguishes between facts alleged which are found proved and those which are not found proved, before moving forward to considering a determination as to guilt of serious professional misconduct based on their determination of facts found proved.”

A little later[26] Lord Mackay observed that:

“… there is no unfairness in a procedure in which a number of allegations of fact are set out in one charge and it is alleged against a medical practitioner that these matters of fact, if established, render him guilty of serious professional misconduct provided that he has fair notice in time to prepare his defence of the nature of the evidence to be led in support of these allegations … and provided the [professional conduct committee] charged to adjudicate upon the matter make plain which of the allegations of fact, if any, they have found proved in time for the practitioner to make appropriate submission and lead any further relevant evidence available to him before a determination is made whether he is guilty of serious professional misconduct.”

But his Lordship went on to caution[27]:

“In a case relating to conduct where two distinct types of misconduct are alleged and where the determination that one type of misconduct was established could not reasonably aggravate the seriousness of the other misconduct I should think it would be better and in the interests of clarity for two separate charges to be alleged.”

5. In Duncan v. The Medical Disciplinary Committee[28] the appellant doctor was charged with disgraceful conduct. The notice of charge contained multiple particulars under four broad categories of indiscretions, namely, (1) breaches of professional confidence, (2) harassment of a co-professional, (3) attempting to persuade an employee to assist in defrauding the Health Department and (4) acting callously and mercenarily towards patients. Cooke, P. noted[29] the ambiguity in the charge, but accepted that it was “understood as charging disgraceful conduct in a professional respect in any one of the particulars, or any of them cumulatively; and that it would be for the Medical Council to decide whether the facts as proved in relation to any one or more constituted such conduct.” The learned President went on to say[30]:

“It cannot be right that every complaint, if to be taken further, must be represented by a separate charge. Further, we do not think that there can be any doubt that a charge may combine a series of similar complaints by alleging a course of conduct in the carrying on of a practice and specifying the separate complaints as particulars or instances.”

A little later Cooke, P. said[31]:

“… a case is conceivable in which over a period a practitioner manifests in a diversity of ways, some more serious than others, such extensive disregard of his professional responsibilities that, viewed as a whole, his conduct can rightly be described as disgraceful in a professional respect… we can see nothing in the Act or in natural justice to prevent the Committee, after investigating a range of complaints, from regarding a comprehensive charge as appropriate as well as separate ones. Indeed it might be against the public interest to deny the Committee any right to present an all-embracing charge. It may be important that the appropriate professional tribunal should be able to look at the practitioner’s whole attitude to practice.”

6. Mitchell v. Royal New South Wales Canine Council Ltd[32] provides another illustration of the reduced scope of duplicity in disciplinary proceedings, notwithstanding that the case concerned the disciplinary proceedings brought pursuant to contract rather than statute. The disciplinary committee of the respondent voluntary association had found the appellant dog-breeder guilty of misconduct, arising from her falsely claiming to have financed and published a certain dog handbook. The single charge of misconduct was supported by five particulars which alleged misconduct by reason of breaches of five different club regulations. Breach of the regulation alleged in the first particular was premised on the appellant having acted dishonestly, whilst dishonesty was not an element of any of the second to fifth particulars, which concerned conduct discreditable to the appellant as a member of the Association. Ipp, J.A. (with whom Mason, P. and Stein, J.A. agreed) characterised[33] the charge as duplicitous because, whilst the charge alleged only one offence, there were at least two distinct sets of offences contained in the charge. But his Honour went on to say[34]:

“I do not suggest that the rule against duplicity that is applicable in criminal cases applies necessarily and to its full extent in disciplinary proceedings of voluntary associations. But as the rule is one of “elementary fairness”, the principles that have been developed in criminal law are useful guidelines in determining the nature of the prejudice that may flow from duplicitous charges in such proceedings and the consequences that should ensue.”

His Honour adopted with approval the comments of the House of Lords in Gee to the effect that a technically duplicitous charge (such as the one before him) is permissible, provided that the committee hearing it makes it clear, in good time, which particulars have been proved and which ones have not been proved. If that occurs, said his Honour, the potential unfairness of a duplicitous charge is avoided because the person is aware of precisely what has been found proved and is not prejudiced in his or her further conduct of the case. In the case before him, however, Ipp, J.A.[35] held that the committee had found the appellant guilty of misconduct without stating whether that conclusion was based on a finding of dishonesty or on a finding of discreditable conduct. Thus, there was unacceptable uncertainty as to the basis on which the appellant was found guilty of misconduct thereby justifying curial intervention.

7. Collier v. Director of Proceedings[36] provides a more recent endorsement of the principle that a charge of misconduct can be supported by multiple particulars, even where individual particulars were, in and of themselves, sufficient to constitute misconduct. The appellant midwife had been found guilty of professional misconduct by the Nursing Council in relation to her handling of a woman’s pregnancy and subsequent childbirth. The notice of charge had listed twelve particulars of professional misconduct, saying that “Particulars 1 to 12 hereof and your conduct herein amounts either separately or cumulatively to professional misconduct”. The Council found that the midwife’s guilt on any one of several particulars constituted professional misconduct. On appeal, McGechan, J. said[37] that there was “nothing objectionable in charge [sic] particulars which allege more than one factual circumstance, provided the particular is clear enough to allow the person charged to prepare a defence, and provided it can be known from the eventual decision precisely which of a number of circumstances was or were the basis of any finding.” His Honour noted[38] that “the basis on which the Council finds guilt would be evident through its established process of making factual findings before findings as to misconduct. The decision would be transparent.”
8. The matter was put succinctly and, I think, correctly by Stephen Martin of counsel in his article “Duplicity in Disciplinary Charges”[39], in which he said[40]:

“An objection that a charge is duplicitous will fail before disciplinary bodies and before courts of review on most occasions. This is so because the rule is not absolute, but rather part of the flexible notion of procedural fairness. If it is clear that a respondent was called upon to answer several charges, clear findings of fact were made, and no case submissions were entertained, an infringement of the rule will very infrequently, if ever prejudice the respondent. Disciplinary bodies can adopt procedures which will overcome any injustice which duplicity might otherwise have caused.”

9. It follows, I think, that it is permissible to charge a defendant with misconduct on the basis of an alleged course of conduct even where each instance of impugned conduct may constitute misconduct, provided the defendant can understand the factual and legal bases on which the allegations are made so that the tribunal can determine whether evidence led is admissible and, if misconduct is established, can articulate the basis for the decision. In the present case, I consider that, on its proper construction, Charge 2 alleged misconduct on the basis of a course of conduct notwithstanding the presence of the words “each of the following instances…“ in the opening part of Charge 2.[41]

In my view, read as a whole, it seems plain enough that Charge 2 alleges but one charge of misconduct followed by particulars or instances of it, rather than alleging fifteen different charges. The impugned instances of conduct were, I think, sufficiently interrelated to constitute a course of conduct. They all concerned the conduct of the legal practitioners, between late August 1998 and early 1999, when they acted as solicitors for Zhai in respect of his 457 visa application which involved the acquisition of the Paragon Café. In the circumstances, it seems to me, that the various instances of conduct alleged in paragraphs (a) to (o) were but particulars of the one offence of misconduct charged by Charge 2. That each of those acts might also have amounted to misconduct is not determinative of whether, on a proper construction of Charge 2, it alleged but one charge which was particularised in the form of the above paragraphs. But even if I am wrong in that conclusion, there is no doubt that the proceeding before the Tribunal was conducted by both parties on the basis that there was only one charge of misconduct alleged by Charge 2 and that it was based on a course of conduct constituted by the conduct alleged in paragraphs (a)-(o). It will be recalled that the appellant’s counsel before the Tribunal abandoned any claim that it was not clear how the charge was being put against the appellant. Moreover, the Tribunal ameliorated any potential unfairness by making clear which of the factual particulars and which of the instances of impugned conduct had been made out. It is on the basis of these findings that the Tribunal concluded that the applicant was guilty of Charge 2. Thus, unlike the position in Mitchell, the Tribunal’s findings in this case made it plain the basis on which it found misconduct so that there was no unacceptable uncertainty in that regard.

10. Consequently, I consider that there was no relevant unfairness to the appellant in the way in which Charge 2 was framed or as it was pressed before the Tribunal.
11. The appellant was, of course, not only entitled to have each instance of misconduct specifically identified, as was done in the context of Charge 2, but also entitled to be told which of the factual particulars (in paragraphs 1- 76) were said to be the basis of each instance of alleged misconduct. Thus, it would have been more appropriate if, in the charge, each instance of alleged misconduct identified in paragraphs (a)-(o) was specifically tied to the relevant factual particular or particulars that are set out in paragraphs 1-76 rather than merely alleging, as was done here, that because of “the matters contained in paragraphs 1-76”, the appellant was guilty of misconduct. I note for completeness, that on page 4 of the Charge document the heading attributed to the factual particulars in paragraphs 1-76 is: “Particulars of Charge”. In my view that is plainly a misdescription of the contents of paragraphs 1 – 76 which, as I have said, set out the allegations of fact on which the respondent relied to establish the misconduct alleged by Charge 2. Be that as it may, I consider that nothing turns on these deficiencies in this case given that, as I have noted, the appellant’s counsel before the Tribunal saw no difficulty in understanding what alleged facts related to any particular item of impugned conduct.’