R v Clifford

R v CLIFFORD
[2004] SASC 104
Court of Criminal Appeal: Perry, Bleby and Sulan JJ

PERRY J: I agree that the appeal should be dismissed for the reasons given by Bleby and Sulan JJ in their joint judgment.
BLEBY & SULAN JJ: On 3 October 2003, Keith Clifford, the appellant, was convicted by a majority verdict of one count of procuring an act of gross indecency, and one count of unlawful sexual intercourse with a person under seventeen. The first offence occurred between 9 September 1989 and 8 September 1991. The second offence occurred between 1 January 1996 and 31 December 1998. The victim in each case was a girl, who we shall refer to as J. The appellant appeals against both convictions.
Factual background
The appellant is 62 years of age. In about 1980 the appellant and his wife developed a friendship with J’s mother and her then husband. Later, J’s mother divorced J’s father. Subsequently, she re-married and the appellant gave her away. He is the godfather of J’s younger brother and younger sister. At the time that J’s mother re-married, J was about seven years of age. J had a difficult relationship with her stepfather. She visited the Clifford’s home regularly on weekends.
It was the prosecution case that the appellant would come to J’s home, pick her up and take her to his home. She would help the appellant clean his car and help him in the garden. J described a garden shed and how she would go with the appellant into the shed. She gave evidence that when she was about seven years of age the first act of indecency occurred. On that occasion the two of them were inside the garden shed. The appellant was wearing shorts. He showed her his penis and asked her to touch it. She described how she touched it with two fingers on the top and a thumb on the bottom. At the appellant’s request, she rubbed his penis. That is the incident which is the subject of the first count.
J said that conduct of this nature continued almost every weekend thereafter over some years. She said that she would rub the appellant’s penis, and that he would ejaculate. She said that the appellant told her not to tell anybody.
J described how, as she grew older, the activity became more intense. When she was about ten years of age the appellant started to touch her on her breasts. He would do that in the shed. On many occasions the appellant’s wife was inside the house. She described how the appellant then commenced to touch her on the outside of her clothing in the area of her vagina. That occurred when she was about ten years of age. She said that happened on a few occasions in the shed. She was unable to be specific about any particular occasion when this activity occurred.
The prosecution case was that the appellant commenced to touch her on the inside of her clothing, on her breasts and on her vagina when she was about ten years of age. At first the appellant would rub her vagina with his fingers. Subsequently, he began to put his fingers inside her vagina. J said that happened on more than five occasions inside the shed. She said that on the occasions when this occurred, the appellant would expose his penis and she would masturbate him until he ejaculated.
J described how the appellant placed his penis inside her vagina. She thought that she was about ten years of age when that conduct commenced. The appellant would kiss her and rub her vagina and put his penis inside her vagina. She also described acts of fellatio. At a later time, she said that the appellant ejaculated inside her. This happened regularly in the shed. When she was older, she was concerned about the possibility of becoming pregnant. He told her that he had had a vasectomy.
J described occasions when sexual contact, including sexual intercourse, occurred in the appellant’s house. This happened when the appellant’s wife was shopping. She and the appellant would drive the appellant’s wife to the Colonnades Shopping Centre, leave her there, and they would then return to the appellant’s home. Sexual intercourse would take place in the house. She said that every time they had sex, the appellant would ask her to suck his penis until it became erect, and then acts of sexual intercourse would take place.
J spoke of numerous incidents of sexual intercourse and other sexual conduct. She was able to particularise two occasions the subject of the charges but, other than those occasions, although she was specific that sexual misconduct took place, she was unable to specify by date or otherwise how or when it took place.
The second act which is the subject of the count of unlawful sexual intercourse occurred when J was in year nine or ten at school. She recalled that she and the appellant were watching a pornographic video, which demonstrated an act of sexual intercourse “doggie-style”. After they had watched the video, the appellant said to her that he wanted to try it doggie-style. She described how she took her clothes off in the bedroom and got down on her hands and knees on the bed and the appellant had intercourse with her from behind. He ejaculated inside her.
It was the prosecution case that sexual misconduct occurred over a period of approximately eleven years. It commenced with the appellant asking the victim to touch his penis, and it progressed to full sexual intercourse when she was about ten years of age and continued until after she had turned eighteen. J was unable to describe any incident in detail, other than the first occasion, which is the subject of the first charge, and the occasion upon which they first had sexual intercourse doggie-style when she was in year nine or ten, which is the subject of the second charge of which the appellant was convicted.
The prosecution elected to proceed on the two charges upon which the appellant was convicted and led evidence of the continuous sexual misconduct throughout the period until the conduct stopped after the complainant turned eighteen years of age.
DNA evidence
J gave evidence that on occasions when sexual intercourse took place in the shed there was a yellow towel with which she and the appellant would wipe themselves. When police attended at the appellant’s premises, there was a yellow towel located in the shed. DNA samples were obtained and tested. Sperm was not observed on the smears. Buccal swabs were taken from both the complainant and the appellant. DNA from those swabs was compared to the three smears that had been taken from the towel. In respect of one smear there were two components, a major and a weak minor component. The weak minor component was male and the appellant could not be excluded. In the case of the major component, the forensic scientists concluded that the DNA component is greater than a billion times more likely to match the DNA profile of the complainant than some unknown, unrelated female.
As to a second smear, that contained a mixture from more than one individual. J and the appellant could not be excluded as contributors, and the mixed DNA profile was greater than a billion times more likely if J and the appellant were both contributors to the mixture than if they were not. As to the third smear, J and the appellant could not be excluded. The age of the stains could not be determined. It was agreed that in a cool, dry environment, semen-like stains from which DNA profiles are obtained could be stored for many years.
The defence case
The appellant gave evidence. He denied that any of the incidents, as described by the complainant, ever occurred prior to her turning 18 years of age. He denied that he had ever asked her to rub his penis. He denied that he had ever asked her to masturbate him. He denied that he had ever watched pornographic movies with her, and denied that he had ever had sexual intercourse with her “doggie-fashion”. He denied that he had ever had sexual relations with her prior to her turning eighteen. The appellant was asked in evidence-in-chief:
“Q.Will you, in your own words, tell the jury what happened after she turned 18.
A.I had sex with [J], I’m not uncertain (sic) where it was four or five times. I know it was stupid, it was only at [J’s] insistence. I know it was stupid and I still now wish it never happened. In fact, I can’t believe that it happened, because it came between me and my wife and my daughter. This 18 months – it is not just a matter of years - …
Q.Where did it happen.
A.Always in the shed.
Q.And where, what positions would you adopt.
A.[J’s] initiation in the first place. She knew I couldn’t go to the floor because of my back problem that I’ve got. It was even her suggesting how and what we did. In the last bit of her evidence she said the towel was there, [J] got the towel and put it there each time.
Q.It was in the shed.
A.It was in the shed exactly where [J] explained.
Q.Where was Sue on the occasions when you had sexual intercourse with [J].
A.This was after October 1999. My wife would, I would presume, be at Colonnades, because after I retired we don’t have as much money and on Saturdays they discount the meat late in the day and she would go and see if she could get a couple of bargains from Colonnades. I would take her to Colonnades and she would ring back up and I would go up and pick her up and bring her back.
Q.For about what period of time did this sexual relationship with [J] last for.
A.It started after her 18^th birthday but it ceased in January, that would be the year 2000.”
The appellant corrected himself and said it was 2001. He denied ever having pornographic films in his home.
In cross-examination the appellant was asked whether he told J that he had a vasectomy. He denied that he had told her so. He agreed, however, that he had had a vasectomy. He was asked:
“Q.When [J] was older than ten, that’s when you told her you had had a vasectomy.
A.I did not.
Q.You told her that so she knew she couldn’t get pregnant when you had sex.
A.I did not.”
The appellant’s account of sexual intercourse occurring in the shed on the towel explained the results of the DNA analysis. Given the evidence that it is not possible to determine the age of the stains on the towel, the DNA evidence could not assist in determining when sexual intercourse occurred.
The charges against the appellant
On 9 September 2002, an information was laid charging the appellant with two counts of indecent assault, first when J was aged seven years and the second when she was about ten years old. There were also two counts of unlawful sexual intercourse with a person under twelve, and two further counts of unlawful sexual intercourse with a person between the ages of twelve and sixteen. They were representative counts.
An information was laid in the District Court in January 2003 charging the appellant with all the offences which had been alleged on 9 September 2002. Prior to 30 September 2003, a new information was laid in the District Court charging the appellant with one count of procuring an act of gross indecency between 9 September 1989 and 8 September 1991, and two counts of unlawful sexual intercourse, the first being alleged to have occurred between 1 January 1993 and 31 December 1995, and the second between 1 January 1997 and 31 December 1998.
Prior to trial, the second count was withdrawn and the trial proceeded on only two counts, namely, one count of procuring an act of gross indecency between 9 September 1989 and 8 September 1991, and a second count of unlawful sexual intercourse between 1 January 1997 and 31 December 1998. At the conclusion of the prosecution case the prosecution sought to amend the particulars in respect of the unlawful sexual intercourse count to allege that unlawful sexual intercourse took place between 1 January 1996 and 31 December 1998. The basis for making that application was the evidence of the complainant and her mother as to which years it was that the complainant was in years nine and ten at school. The reason for proceeding on the two counts only was that the prosecution conceded that, in respect of the other counts charged, it could not sufficiently particularise them to sustain the charges.
The appeal
The appellant submits that the trial judge erred in permitting the trial to proceed on the information as amended, on the ground that there was a failure sufficiently to particularise the allegations, the subject of the charges.
As to the uncharged acts, the appellant complains that the evidence of uncharged acts should not have been admitted, as there was a failure to particularise the acts. It was further submitted that the prosecution was unable to discharge the required onus of proof in respect of the uncharged acts. Additionally, the charged acts were not representative of the conduct alleged against the appellant, and the uncharged acts were of a different character. It was submitted that the trial judge erred in his directions to the jury as to the standard of proof required in respect of the uncharged acts. The appellant also submitted that the trial judge should have excluded the evidence of uncharged acts and ordered separate trials in respect of the charged acts. As a consequence of the failure to either exclude the evidence or to properly direct the jury how that evidence can be used, it was submitted that the trial was unfair and the conviction should be set aside.
The failure to particularise the allegations
Counsel for the appellant, submitted that if the manner in which the final information was presented to the jury is traced, then it demonstrates that the prosecution were never in a position to adequately particularise the charges and the case should not have been permitted to proceed to the jury.
It is not contested by counsel for the respondent that the prosecution had difficulty in particularising the uncharged acts. She contended that the charges, as laid, were sufficiently particularised and the trial judge was correct in permitting the case to proceed. Further, she submitted that there was no error in the trial judge’s directions to the jury. She submitted that the appellant knew exactly what was being alleged, and that there was no miscarriage of justice.
In S v The Queen,[1] the appellant was charged with three counts of carnal knowledge of his daughter. Each count charged one act of carnal knowledge on a date unknown within a specified period of twelve months over three consecutive years. The Crown case was that in each of the years there were numerous acts of sexual intercourse, but that it was one act which, in each year, constituted the alleged offence. The Crown could not particularise any date and, therefore, charged each count on a date unknown between the beginning and the end of the year. None of the counts were linked to any specific act of sexual intercourse mentioned by the complainant in her evidence. The evidence was equivocal as to when the first act of sexual intercourse took place, and whether it was before or during the period mentioned in the first count of the indictment.
[1] (1989) 168 CLR 266
It was submitted on behalf of the appellant that it was not open to the Crown to lead evidence of a number of acts which amount to the actus reus and then to invite the jury to convict on any one of the acts led in evidence. Although each count in the indictment was regular on its face, there was a latent ambiguity because the count in each case was referable to a number of acts of intercourse indistinguishable one from another, save as to the different occasions on which they occurred. The complainant had given evidence that she could not remember details of the acts because she had blanked them out. She said that sexual intercourse had occurred every couple of months in each year.
A majority of the court, Dawson, Toohey, Gaudron and McHugh JJ, allowed the appeal and quashed the convictions. Brennan J dissented. In the course of their judgments, Dawson and Toohey JJ both referred to the observations of Dixon J in Johnson v Miller,[2] a case in which there was a failure of the prosecution to cure a latent ambiguity by identifying the one transaction out of a number upon which it relied. Dawson J referred to Dixon J’s statement in Johnson v Miller where he said:
“In my opinion he [the prosecutor] clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. The court hearing a complaint or information for an offence must have before it a means of identifying with the matter or transaction alleged in the document the matter or transaction appearing in evidence.”[3]
In his judgment in S v The Queen, Dawson J said:
“Thus, notwithstanding that each count in the indictment charged the applicant with one offence only, the evidence revealed a multiplicity of offences with nothing to identify any one of them as the offence with which the applicant was charged in any particular count.”[4]
[2] (1937) 59 CLR 467
[3] Ibid at 489 cited in S v The Queen (1989) 168 CLR 266 at 277
[4] Ibid 273
Dawson J identified one of the injustices which could follow from such a failure, namely, that individual jurors might identify different occasions as constituting the relevant offence so that, in effect, there was no unanimity in relation to their verdict, such a result being tantamount to the conviction resulting from a general disposition on the part of the offender to commit offences of the kind charged.[5] An accused faced with the failure of the prosecution to identify the charge sufficiently has the difficulty that he is unable to defend himself because of the generality of the allegations against him.
[5] Ibid 276
A further difficulty arises as to which acts are the subject of the counts and which acts are uncharged acts. Uncharged acts are admitted in cases of continuous sexual misconduct for various purposes, including to explain why a complainant may have not complained or to explain a passion which the offender has for the complainant, or to establish the relationship which existed between them so as to explain why the complainant complied with the various demands of the offender.
The evidence of the uncharged acts must be related to a specific charged offence or offences upon identified occasions. If the occasion, the subject of a charge cannot be identified, then the evidence becomes evidence of general propensity, the very nature of which is not admissible.[6] Gaudron and McHugh JJ expressed the position in S v The Queen as follows:
“The trial of the applicant was fundamentally flawed by the admission of evidence of multiple acts of carnal knowledge and by the way in which such evidence was left to the jury. The rule as to the admissibility of evidence of offences, not being the offences charged, is clear. Such evidence, whether identified as similar fact evidence or by some other description, is only admissible if it has probative value such that it raises the objective improbability of some event having occurred other than as alleged by the prosecution. See Hoch v The Queen (70). It is unnecessary to consider whether, on this basis, evidence of other acts of carnal knowledge might have been admissible at the trial. At the very least, as Dixon J. observed in Johnson v Miller (71), it would have been necessary for it to have been made clear what acts were said to be the offences charged and what acts were said to be similar facts. Without that, it would be impossible to instruct the jury as to the use properly to be made of the evidence of other offences. More significantly in the present case, evidence of other acts of carnal knowledge was not left to the jury on the basis that such acts might prove the offences charged, but on the basis that the jury might be satisfied that one act of carnal knowledge occurred within each of the periods specified in the indictment.
The basis upon which the evidence was left to the jury illustrates a fundamental problem which is addressed by the requirement for certainty as to the offence charged, which requirement also underlies the rule against duplicitous counts. Even leaving aside the problem referable to the overlapping of the second and third periods specified in the indictment, the basis upon which the evidence was left to the jury allowed for the real possibility that different jurors might have different acts in mind when they came to consider each of the verdicts. Indeed, in view of the way the matter was left to the jury, it might even be possible that, in relation to one or all of the counts, individual jurors had no specific act in mind, but simply reasoned from the evidence as to frequency that the applicant committed one such act within each of the specific periods. In these circumstances, it is impossible to say, in relation to any one count in the indictment, that the jury as a whole was satisfied as to the applicant’s guilt of an individual act answering to the description of the offence charged. Assuming the verdicts returned by the jury to constitute verdicts in the accepted sense, it is impossible to say that, had the jury been directed to consider the guilt of the accused of specific acts identified as the offences charged, the verdicts of guilty “would plainly have been the same”. (See Van der Meer v The Queen (72).”[7]
[6] Ibid at 275
[7] Ibid at 287-288 (footnotes omitted)

Toohey J identified the problem in the case as having the result that “the accused does not know with any certainty the charge he has to meet.”[8]
He said:
“Of course this does not mean that the prosecution must specify a particular date as the occasion on which it relies. But it does mean that, as soon as it appears that a count in the indictment is equally capable of referring to a number of occasions, each of which constitutes the offence the legal nature of which is described in the count, the prosecution should identify the occasion which is said to give rise to the offence charged.”[9]
[8] Ibid at 281
[9] Ibid at 282
In this case the two counts which proceeded at trial were on their face clear on the indictment. Neither case was specific as to date. In the case of the count charging unlawful sexual intercourse it was necessary for the prosecution to amend the dates between when it was alleged that the acts took place, after the evidence had been given. Nevertheless, the evidence in each case clearly identified the occasion upon which it was alleged that the act took place and the circumstances relating to the act. The jury could not have been left in any doubt that the first count related to the first occasion upon which the appellant exposed his penis to the complainant and had her touch it. The count of unlawful sexual intercourse related to an occasion and the only occasion upon which it was alleged that the appellant showed the complainant a pornographic video which demonstrated sexual intercourse being performed in a “doggie fashion” and then had the complainant perform an act in a similar position.
The difficulty alluded to in S v The Queen did not exist in the present case. Although the complainant could not be specific as to the dates, the occasion in each case was clearly identified, and the appellant could not have been embarrassed or unable to identify what was being alleged against him. The jury would have been clear about each count which was alleged and which had to be proved for the appellant to be convicted. This ground of appeal is unsustainable.
Uncharged acts - admissibility
The appellant contends that the trial judge should not have admitted evidence of numerous acts of a sexual nature, including acts of masturbation, fellatio, and digital and vaginal sexual intercourse over a period of approximately eleven years. The acts were not particularised and the complainant was unable to identify with any degree of particularity when the acts occurred. She spoke generally of them occurring in the garden shed and in the appellant’s bedroom when the appellant’s wife was away shopping. The only particularity that the complainant was able to give in relation to the uncharged acts was that acts of digital and penile sexual intercourse did not commence to occur until she was about ten years of age. The complainant’s evidence demonstrated a course of conduct which began with some touching of the appellant’s penis, masturbation and, as she grew older, the appellant began to touch her breasts and vagina, at first outside her clothing and, later, inside her clothing. The first acts of digital and penile sexual intercourse took place when she was about ten years of age.
Counsel for the appellant submitted that there was a great danger in such evidence being admitted because it lacked particularity and it did not comply with the requirements for particularity referred to in S v The Queen. He submitted that in order for such evidence to be admitted, each act must be proved beyond reasonable doubt. It followed that, as there was an inability to particularise the acts, then a jury could not have been satisfied beyond reasonable doubt in relation to any one act. A number of charges had been withdrawn, because of the prosecution’s inability to sufficiently particularise the occasion. He argued that it had been conceded by the prosecution that it could not prove any uncharged act beyond reasonable doubt.
The admissibility and use of evidence of uncharged acts was discussed in R v Nieterink[10] by Doyle CJ, who said:
“In the present case, as is common in cases involving sexual offences committed against young persons, the evidence of the uncharged acts had several potential uses.
First of all, the evidence may be relevant because without it the jury could hardly understand the context in which the alleged offences occurred. As in this case, evidence of uncharged acts will often include evidence of acts that preceded the commission of the first offence charged. This evidence may disclose a course of events leading up to the first charged incident, which enables the jury to understand that the incident did not, as it were, “come out of the blue”. The evidence will also sometimes explain how the victim might have come to submit to the acts the subject of the first charge. Without the evidence, it would probably seem incredible to the jury that the victim would have submitted to what would seem an isolated act, and likewise it might seem incredible to the jury that the accused would suddenly have committed the first crime charged. The evidence of uncharged acts may also disclose a series of incidents that make it believable or understandable that the victim might not have complained about the incidents charged until much later in the piece, if at all. They may show a pattern of behaviour under which the accused has achieved the submission of the victim. The evidence may establish a pattern of guilt on the part of the child, that could also explain the submission and silence of the child. The evidence in the present case was relevant on these bases.
The evidence was also relevant because it could establish a sexual attraction on the part of the accused towards R.”[11]
[10] (1999) 76 SASR 56
[11] Ibid at 65, paras [42-44]
The evidence in this case was that when the complainant was about seven years of age and until she was about ten on numerous occasions when they were alone in the garden shed she would masturbate the appellant until he ejaculated. As the conduct continued, he touched her on the outside of her clothing, on her breasts and on her vagina. That then developed to touching her inside her clothing when she was about ten years of age. That conduct moved to him placing his finger and then his penis into her vagina. As she grew older he would ejaculate whilst his penis was inside her.
That evidence was relevant to understand the nature of the relationship that had developed between the complainant and the appellant over a period of eleven years between the first act charged and the last act charged. It established an ongoing sexual attraction of the appellant towards the complainant. It established how she was introduced to sexual practices, and it explained why she had said nothing about the conduct. It was capable of explaining why the appellant was confident that he could continue his relationship with J without her disclosing his conduct to others. The jury were invited to conclude that the reason why J was unable to be precise as to dates was because of the number of occasions on which the acts had occurred. The evidence was admissible.
The trial judge’s direction
The trial judge dealt with the uncharged acts in his summing. He said:
“You know that the Crown case is that when she was about seven, on almost each occasion she visited the accused’s house until she was at least 18 there was an increasing level of sexual activity between [J] and the accused instigated by the accused. That by gradual steps from rubbing his penis, to masturbation, to fondling her breasts and vagina, firstly outside and then inside her clothes, to digital and then penile penetration. It is alleged that initially this activity took place in the garden shed and then in the house when the accused’s wife was not home. Separate acts of [J] sucking the accused’s penis are also alleged to have occurred in the house when the other young children were present.
It is important that you understand that this evidence of this uncharged sexual conduct is led only to put the counts in the information into context so that you can understand how the two counts charged hang together in the scheme of things. It’s led to help you understand what is said to be the nature and development of the ongoing sexual relationship between [J] and the accused from its outset until near its ending. It may go to explain why [J] may be uncertain as to precise dates. It may also explain her acquiescence and why the accused was confident in his conduct towards her. It may also underscore, if accepted by you, a sexual attraction to [J] by the accused and a grooming of her for this purpose over time. Without this evidence, it would not be possible to properly appreciate and evaluate the evidence of [J] as to the incident forming counts 1 and 3 on the information [count two had been withdrawn]. The knowledge that they allegedly occurred in the setting of a course of sexual activity which developed over a period of time is what is said to link them together and to explain those matters that I have just mentioned; that is uncertainty as to time, occurrence and lack of complaint.”
The trial judge’s direction was unobjectionable. He identified the use that the jury could make of the evidence. He directed the jury specifically that they could not use the uncharged acts to reason that the appellant was the type of person likely to have committed these offences, that is, that they could not use it to show a propensity by the appellant towards this type of conduct.
Standard of proof
As to the standard of proof, the trial judge directed the jury:
“I direct you that you may not act upon the evidence of the uncharged acts, or any of them, unless and until you are satisfied beyond reasonable doubt of its truth. Only then, if so satisfied of the truth of the evidence, or any part of it, may you use that evidence, of which you are so satisfied, when you consider the credibility of [J] in relation to each count on the information and whether either of them is proved beyond reasonable doubt.”
Counsel for the appellant complains that, given that the individual acts which form the uncharged acts could not be particularised, then it was not possible for the jury to be satisfied beyond reasonable doubt about any particular uncharged act. He makes no complaint about the direction, but submits that if each uncharged act must be proved beyond reasonable doubt, then the inability of the complainant to give other than the most general description of each act leads to the inevitable result that each uncharged act could not be proved beyond reasonable doubt, rendering the conviction unsafe and unsatisfactory. In order for the appellant’s contention to be valid, it is necessary to consider whether the direction by the trial judge on the issue was correct.
Doyle CJ dealt with the standard of proof in Nieterink. He said:
“The jury had to be directed clearly not to act upon the evidence unless satisfied of its truth. It may be that to the extent that the evidence of uncharged acts were circumstantial evidence explaining R’s conduct, and the circumstances of the offences, proof beyond reasonable doubt was not required. But if the evidence was used as proof of a sexual attraction on the part of the appellant towards R, involving the commission of criminal acts, it seems to me that it might have formed an indispensable link in reasoning to guilt, and for that reason would have to be established beyond reasonable doubt: cf R v Ball and Gipp (at 133-134) per McHugh and Hayne JJ. My view is that to avoid confusing the jury, by referring to different standards of proof, the jury should have been told not to act upon the evidence of uncharged acts unless satisfied that those acts were proved, even though, in the light of the judge’s general directions to the jury, that would convey to the jury that what was required was proof beyond reasonable doubt.”[12]
[12] Ibid at 72-73 [86]
In Gipp v The Queen[13], McHugh and Hayne JJ in their joint dissenting judgment discussed the standard of proof required in respect of a general allegation of sexual misconduct which was led as part of the prosecution case. They referred to the trial judge’s summing up in which he directed the jury that the evidence of general behaviour is led to show the nature of the relationship between the complainant and the accused, rather than present a picture of isolated events from time to time. They said:
“The evidence tendered was general in its nature and, as the above passage makes clear, was admitted for the limited purpose of making the circumstances of the specific offences more intelligible. It was admissible because it was evidence “as to acts so closely and inextricably mixed up with the history of the guilty act itself as to form part of one chain of relevant circumstances”.”[14]
[13] (1998) 194 CLR 106
[14] Ibid at page 132 [75]
Gaudron and Kirby JJ determined the evidence should not have been admitted. Callinan J decided that, although the evidence was admissible, the trial judge had misdirected the jury in the use that could be made of it.
Having directed the jury about the use that could be made of the evidence, the trial judge said:
“There is no need for you to be satisfied beyond reasonable doubt of those background facts because they are given generally, provided that you accept the complainant’s account that it occurred.”
McHugh and Hayne JJ said:
“No doubt it would also have been better if his Honour had made no mention of the standard of proof when referring to the background evidence. But his Honour’s statement was not a misdirection. It is the charge, not the surrounding facts, that must be proved beyond reasonable doubt. Sometimes, a fact may be so indispensable to a finding of guilt that it is necessary to direct the jury that that finding be proved beyond reasonable doubt even though that fact is not one of the ultimate facts that constitute the offence. But, as Dawson J pointed out in Shepherd v The Queen (77) where:
“the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so.”
That statement was made with respect to circumstantial evidence but is equally applicable to a case such as the present.
The evidence concerning the relationship of the parties in this case was not, as Mr Whitford’s submission recognised, an indispensable link in a chain of reasoning leading to an inference of guilt. It was not, for example, evidence of the kind with which the House of Lords had to deal with in R v Ball (78) where the charge of incest between the dates alleged must have failed without proof that there had been a previous sexual relationship between the brother and sister.”[15]
[15] Ibid at 133-134 [79-80]
Kirby J was of the opinion that, assuming the evidence was admissible, the trial judge had erred in directing the jury that they could be satisfied on the evidence of a general nature of long standing abuse, other than beyond reasonable doubt. Callinan J was of the opinion that the evidence of long-standing abuse was admissible, but that the trial judge failed adequately to direct the jury as to how the evidence could be used. If it was introduced at a subsequent trial, an appropriate comment as to its lack of specificity was required. In this case, as in Gipp, the evidence was of a general nature.
Evidence of a general course of conduct constituted by a number of criminal acts may be admissible for a number of reasons. We have referred to some of them. In each case the question is how that evidence is relevant to establish guilt. The purpose of admitting the evidence and the use to which it can be put must be identified. Very often, as in this case, it may be admissible for more than one purpose. For example, the evidence might prove sexual attraction on the part of the offender towards the victim, it might explain lack of complaint, it might establish the offender’s state of mind and his confidence that his conduct will not come to light. In many cases, without evidence of this kind, the complainant’s evidence would seem unreal or artificial.[16]
[16] Ibid at page 130
In such cases it is rare that the complainant is able to give sufficient detail of each act to prove beyond reasonable doubt that the particular act took place. It may not be an individual act or acts upon which the prosecution seeks to rely, but rather the continuing nature of the conduct. The course of the relationship may be important in order for the jury to understand how and why the incidents, the subject of the charges, occurred. Otherwise, a jury may have difficulty in accepting that those incidents occurred. To enable the prosecution to lead evidence only of each individual charged act, without reference to the course of conduct, would be to risk leaving the jury with an artificial view of the case.
Evidence of this nature is rarely of the kind which is recognised as an indispensable link in a chain of reasoning leading to an inference of guilt. However, the very nature of the evidence is such, that if accepted, it is highly probative of guilt. It is evidence which comes from the complainant. Once the evidence is admitted, the danger that must be avoided is that the jury might use the evidence in an impermissible way.
The trial judge should, therefore, require the prosecution to identify the purpose for which the evidence is led. The purpose for which the evidence has been admitted should be clearly stated to the jury. It is for the jury to determine what weight should be given to the evidence, and whether the evidence achieves the purpose for which it has been introduced. The jury must be directed that they can only use the evidence in the limited manner and for the limited purpose or purposes for which it has been admitted.
In some cases, the purpose or purposes of admitting the evidence will be to explain a particular act or event or an omission (e.g. a failure to complain), or to point to a state of mind of the accused or of the complainant. Whether, in fact, the evidence does have one or more of these effects and how much weight the jury gives to the evidence for that purpose or purposes is a matter for the jury. The question remains, in order for the jury to use the evidence in that manner, of what do they have to be satisfied, and to what standard of proof.
In most cases when sexual abuse involves the complainant and the accused over a long period of time and on many occasions, it will not be possible for a complainant to recall how many occasions there were, the detail of what occurred on each occasion and when and in what circumstances each occasion occurred. He or she will, however, be able to speak of a course of conduct and to describe the features of that conduct and whether it varied from time to time or over time. It is the fact of the course of conduct having occurred, rather than the detail of each specific act constituting the course of conduct, which is relevant.
Although evidence of the conduct may not be an indispensable link to the finding of guilt, it is of such weight in the case of continuing sexual misconduct that proof of it beyond reasonable doubt should be required. The evidence will usually relate to conduct implicating the accused in other criminal conduct, other than that with which he is charged. It will usually relate to conduct similar in nature to that the subject of the charge or charges. Therefore, the criminal standard of proof beyond reasonable doubt should apply to proof of the conduct alleged. An added reason for adopting the criminal standard is that adverted to by Doyle CJ in Nieterink, that to direct the jury by reference to different standards of proof in respect of such conduct can be confusing and counterproductive.

That does not mean that the jury needs to be satisfied beyond reasonable doubt, where a course of conduct is alleged, of each individual act which, together with other acts, establishes the continuing course of sexual misconduct. The jury must be satisfied beyond reasonable doubt that the course of conduct occurred.
The jury should be directed that if they are satisfied beyond reasonable doubt that the conduct or course of conduct occurred, they should then consider whether the evidence achieves the purpose or purposes for which it was led. If the evidence in their mind does not achieve that purpose or any of those purposes, then they must disregard the evidence and use it for no other purpose.
In directing the jury that they could not act upon the evidence of uncharged acts unless and until they were satisfied beyond reasonable doubt of its truth it was unnecessary for the trial judge to refer to the uncharged acts “or any of them”, when what was really being referred to in this case was not particular uncharged acts, but a course of conduct, albeit changing over time. The jury did not need to find each uncharged act on each occasion proved beyond reasonable doubt as if the appellant was charged with an offence in relation to that act. What the trial judge said did not amount to a misdirection. If anything, his direction was favourable to the appellant.
This ground of appeal must fail.
Severance
Counsel for the appellant submitted that the two counts should have been tried separately. He rightly conceded that the argument for severance of each count had less force if the evidence of uncharged acts was admitted.
The offences were part of a series of offences of the same or similar character.[17] The Crown case was presented on the basis that this was a course of conduct which commenced when the complainant was seven years of age, when she was introduced to sexual activity, and continued and developed over a period of about eleven years.
[17] See s 287(1) of the Criminal Law (Consolidation) Act 1935
The evidence had probative value because it explained why the complainant succumbed to the advances of the appellant, why she did not make a complaint, and how the conduct could have continued over such a lengthy period of time without coming to light. The first act and the later act, of which the appellant was convicted, were explained and connected by the long standing sexual abuse which occurred over the eleven or so years connecting them.
The trial judge was correct in refusing the application. The trial judge directed the jury to consider the evidence on each count separately. The direction was unambiguous. We reject this ground of appeal.
Unfair trial
In our view, this ground of appeal is not sustainable. It relied on a general complaint relating to matters that we have dealt with earlier.
We would dismiss the appeal.
JUDGMENT CITATIONS

LISTED IN ORDER OF APPEARANCE IN JUDGMENT

[1] (1989) 168 CLR 266
2 (1937) 59 CLR 467
3 Ibid at 489 cited in S v The Queen (1989) 168 CLR 266 at 277
4 Ibid 273
5 Ibid 276
6 Ibid at 275
7 Ibid at 287-288 (footnotes omitted)
8 Ibid at 281
9 Ibid at 282
10 (1999) 76 SASR 56
11 Ibid at 65, paras [42-44]
12 Ibid at 72-73 [86]
13 (1998) 194 CLR 106
14 Ibid at page 132 [75]
15 Ibid at 133-134 [79-80]
16 Ibid at page 130
17 See s 287(1) of the Criminal Law (Consolidation) Act 1935

[2004] SASC 104

20 April 2004