R v Clifford No. DCCRM-02-1376

[2003] SADC 150

THE QUEEN -v- CLIFFORD
[2003] SADC 150

Judge Anderson
Criminal

1. The Accused, through his counsel Mr Borick QC, sought pre‑trial orders excluding evidence of the alleged sexual acts between himself and the alleged victim for the period between the time of the offence alleged in Count 1 on the Information and the time of the offence referred to in Count 3 thereof.

2. It was submitted that such was a proper course upon the withdrawal of several counts which had referred to offences in this period as that meant that the Crown must be of the view that they were unable to be particularised and proved and so it would not be possible for a jury to be satisfied of them beyond reasonable doubt.

3. Mr Borick QC submitted that to rely on those allegations, which were unable to be particularised, gave an unfair advantage to the Crown and would also lead to the use of propensity reasoning by the jury.  This, by corollary, meant that there was an unfairness to the Accused not able to be overcome by an order for further particulars.

4. In addition, it is said that there is unfairness also arising from the latent ambiguity in the way the counts on the Information are formulated.  In this respect, Mr Borick QC relied upon  S v The Queen [1989] 168 CLR 266.

5. In that case, an accused was charged with counts of carnal knowledge each within a period of 12 months.  Evidence was given of many acts of sexual intercourse within each period with no further specificity.  It was held that a conviction obtained was wrongly obtained in the “absence of any act or acts being identified as the subject of an offence charged on the indictment” (headnote).

6. Mr Borick QC sought to distinguish the well known decision of R v Nieterink (2000) 76 SASR 56 on the bases, firstly, because of difficulties with directing the jury as to the appropriate onus to be applied to the uncharged acts and, secondly, that the then accused was under no difficulty about what uncharged acts were alleged whereas here, the Accused does quite clearly suffer from such a disadvantage. It was said that the weight of the uncharged acts overbears in a prejudicial fashion any proper separate consideration of Count 1 so that it should be separate from Count 3.

7. In my opinion, there is sufficient about each count to specifically identify the occasion as opposed to the date on which it is alleged to have occurred.  As such, there is no latent ambiguity in the particulars of either count and, thus, S v The Queen is of no application.

8. There is no difficulty in directing the jury as to the standard of proof to be applied to the alleged uncharged acts before the jury is able to act upon them or those of which it is satisfied occurred.  As the Chief Justice made clear in Nieterink, that standard is proof beyond reasonable doubt and, since that decision, juries are regularly so instructed.

9. As the uncharged acts set the context within which it is said these offences occurred, the jury is able to use the evidence of any such acts of which it is satisfied in its assessment of the evidence of the alleged victim relating to either count.  The jury may be properly directed to not reason in a propensity fashion in relation to each count.

10. The complete alleged behaviour of the Accused is relevant to each count and it would not be appropriate to either exclude the evidence of the uncharged acts or to order separate trials.

11. There is no abuse of process flowing from any evidentiary matters or from the several changes to the Information over time, the late provision of statements, late requests to agree evidence or late applications relating to vulnerable witnesses.  Mr Borick QC rejected the suggestion that he, or the Accused, was embarrassed in preparation for trial because of any and/or a combination of these matters.

12. It is for these reasons that I rejected each of the applications made before the jury was empanelled.