R v IK - [2004] SASC 280

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v I K
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Perry and The Honourable Justice Vanstone)
15 September 2004
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - SUMMING UP
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
Appeal against conviction - appellant was convicted of one count of indecent assault, one count of procuring an act of gross indecency, five counts of unlawful sexual intercourse and two counts of common assault - whether trial Judge erred in refusing to exclude forensic evidence - whether trial Judge gave adequate directions to jury concerning forensic evidence - whether trial Judge's directions to jury as to uncharged acts were adequate - whether trial Judge erred by failing to direct jury that they must be satisfied beyond reasonable doubt of occurrence of uncharged acts - whether trial Judge erred in his directions to jury concerning delay between acts in question and trial - whether trial Judge erred in directions to jury concerning the credibility of complainant - whether trial Judge erred in failing to direct jury as to esoteric knowledge - whether trial Judge erred by failing to direct jury as to use that a finding of guilt in relation to common assault charges could be put when considering other charges - appeal dismissed.
R v Nieterink (1999) 76 SASR 56; R v T (1999) 74 SASR 486; Gipp v The Queen (1998) 194 CLR 106; R v FJB [1999] 2 VR 425; R v Ball [1911] AC 47; R v R (1998) 198 LSJS 119; R v Brusnahan CCA 5 November 1993, Judgment S4246 (unreported); R v Clifford (2004) 233 LSJS 157; Edwards v R (1993) 178 CLR 193, discussed.
Hoch v The Queen (1988) 165 CLR 292; Pfennig v The Queen (1995) 182 CLR 461; R v Sciberras (2003) 226 LSJS 473; KRM v The Queen (2000) 206 CLR 221; R v Tedesco (2003) 85 SASR 66; BRS v The Queen (1997) 191 CLR 275; R v Kostaras (2002) 222 LSJS 373; R v RWB (2003) 87 SASR 256; R v BFB (2003) 87 SASR 278; R v Corrigan (1998) 74 SASR 454; Makin v The Attorney-General for New South Wales [1894] AC 57; Shepherd v R (1990) 170 CLR 573; R v Dolan (1992) 58 SASR 501, considered.

R v I K
[2004] SASC 280
Court of Criminal Appeal: Doyle CJ, Perry and Vanstone JJ

DOYLE CJ The appellant was tried before a jury in the District Court. He was tried on an Information containing nine counts. The counts comprised one count of indecent assault, one count of procuring an act of gross indecency, five counts of unlawful sexual intercourse and two counts of common assault. The alleged victim in each case was the stepdaughter of the appellant. I will refer to her as K. She was aged between 12 years and 15 years at the time of the offences.
The appellant was convicted on all counts. He has appealed against the convictions. He challenges the decision by the trial Judge not to exclude evidence of the findings on forensic examination of certain items taken from his home. He complains on the ground of inadequacy of directions to the jury relating to evidence of uncharged acts by the appellant, and he complains about certain other directions that the Judge gave to the jury. He also complains that he has suffered a miscarriage of justice because of one aspect of the cross-examination of a witness, and because of the cumulative effect of what are said to be deficiencies in the Judge’s directions and certain other features of the trial.
The charges and the evidence
K was born on 4 October 1986. She came to Australia in about 1992 after her mother had married the appellant. She lived with the appellant and her mother. All offences are alleged to have occurred at the family home.
K said that when she was about 11 years old the appellant began punishing her by hitting her on the face and arms, and around the ribs. My impression from the evidence is that the appellant had not done this before, or perhaps that there was, according to K, a noticeable change in the degree of physical punishment about this time. K’s evidence was that the appellant often punished her in this way.
Count one is a charge of indecent assault, alleged to have occurred between 1 January 1998 and 31 December 1999. It is alleged that K was about 12 years of age at the time. K said that this was the first occasion on which the appellant touched her in a sexual fashion. She alleged that he touched her on the breasts.
Count two is a charge of procuring an act of gross indecency. It is alleged to have been committed between 1 January 1998 and 31 December 1999, when K was about 12 years of age. This occurred not long after count one. It was the second occasion on which the appellant dealt with her in a sexual manner. K said the appellant placed her hand on his penis.
As is common in such cases, K’s evidence about when each count occurred was vague. In most cases she was unable to give more than an indication of the approximate date.
K said that she did not tell anyone about these incidents or other incidents. She did not think anyone would believe her. Nor did she trust anyone. As she said in evidence, if she could not trust her father, whom could she trust?
Count three is a charge of unlawful sexual intercourse, alleged to have occurred between 4 October 1999 and 4 October 2000. K was about 13 years at the time. K was showering when the appellant came into the bathroom. As she dried herself he began to masturbate himself, and then put his finger in her vagina. He ejaculated on his leg, and wiped himself with a handkerchief.
K said that there were other occasions when something sexual occurred in the bathroom, but this was the only occasion that she could identify now. However, a little later she said that she could not remember other incidents in the bathroom, leaving it unclear whether her evidence was that there were other such incidents.
Later the police seized handkerchiefs, towels and rugs, items on which K’s evidence suggested semen or other bodily fluids of significance might be found. It was the admission of the evidence relating to these items that Mr Peek QC, counsel for the appellant, submitted should have been excluded.
K gave evidence that on the occasion when count three occurred, she threatened to tell the police what the appellant was doing. He said that he would deny it and no one would believe her. That was the only occasion on which she threatened to disclose his behaviour.
Count four was a further charge of unlawful sexual intercourse, also alleged to have been committed between 4 October 1999 and 4 October 2000. K said that the appellant on this occasion inserted his penis into her vagina. She identified the occasion as the first occasion on which he did that in a shed that he used as an office. She said that the appellant ejaculated on her back, and wiped her back with a towel that he kept in the shed. She described the layout of the shed. The appellant gave evidence that the layout she described related to the shed as it was set up only after April 2001, when the appellant began to conduct his computing business from that shed. This evidence was said to expose a flaw in K’s evidence.
Although K said this was the first time that the appellant put his penis in her vagina when they were in the shed, she also said that she was not sure if this was the first time that “something happened” in the shed. She said she had seen him ejaculate many times before this. She described a deformity in his penis which caused him to ejaculate at the side of the penis rather than at the head.
K said that after this occasion penile intercourse occurred almost daily, and usually in the shed.
Count five is also a charge of unlawful sexual intercourse, alleged to have been committed between 4 October 1999 and 4 October 2001. It was an occasion of penile intercourse. It took place in the shed. K was able to identify it as an occasion when she was menstruating. She said that the appellant wiped her and himself with a handkerchief, and that the handkerchief had blood and semen on it.
Count six is a further charge of unlawful sexual intercourse. It was alleged to have occurred between 25 September 2001 and 28 September 2001. K was able to identify this occasion as occurring on the appellant’s 50^th birthday or on the eve of his birthday. There was evidence that his 50^th birthday was on 26 September 2001. K said that the family had dinner with the appellant’s parents, and then returned to the family home. While the appellant’s parents were still there he said that he had to do some work in the shed, and told K to come to the shed with him. She was in her pyjamas. Once they were in the shed, which he locked, he told her to take her clothes off and he took his clothes off. He then told her to masturbate him, he licked her vagina, then he told her to suck his penis and to masturbate him by hand. He ejaculated on her hand. She wiped her mouth on a towel that was in the shed, and also wiped her hand on it. The appellant’s mother was called to give evidence. Her evidence about the events of the evening was inconsistent with that of K, to the extent that she said that when she left K had gone to bed and was asleep.
Counts seven, eight and nine all occurred on Sunday 11 November 2001. It was common ground that a confrontation between K and the appellant occurred that day. B and N, two friends of K, had stayed at her home on the Saturday night. K said that on that evening the appellant showed them pornographic pictures on his computer screen. They came from files or folders stored electronically in his computer. B and N gave evidence to the same effect. K said that the appellant had often shown her pornographic pictures and videos before, and had taken pornographic photos of her.
Next morning N’s boyfriend arrived in a motor car to collect N. The three girls went out to the car. K was in her pyjamas. A little later the appellant came to the car, in a very angry state. He said “what are you doing here in a strange guy’s car?” He spoke abusively towards K, and dragged her out of the car and into the house. He kicked her. In the kitchen of the house he was “yelling” at her.
Count seven is a charge of common assault alleged to have been committed at that stage of the events. K said that the appellant had been hitting her, and got a yellow chopping board from a drawer and hit her with it. K said that her mother was present, and was taking the appellant’s side in the argument.
K said that the appellant told B and N to go home. They gave evidence generally supporting K’s evidence about K being dragged out of the car and into the house. They gave evidence of her being hit or of hearing sounds of hitting, and of seeing K looking upset.
Count eight is a further charge of common assault alleged to have occurred that morning. K said that after her friends had gone the appellant took a pair of scissors and cut her hair very short. He said “lets see how you look with your hair short”. K’s mother did not object, and swept her hair up. The appellant did not deny having cut K’s hair, but said he did it to prevent K’s mother giving her an even shorter hair cut.
K said her mother left to visit a friend. The appellant then told K to go to the lounge room, to take her clothes off, and to suck his penis. He ejaculated in her mouth, and she wiped her mouth on a picnic rug that was on the floor in the room. This was the subject of count nine, a charge of unlawful sexual intercourse based on that act of fellatio.
K gave evidence that during that morning, and probably while K’s mother was still there, the appellant rang K’s boyfriend. There had been a series of disputes over K’s relationship with him, and also with other young men. K was in a sexual relationship with her boyfriend. The appellant told K and her boyfriend that they were not to see each other again.
The next day K’s mother took her to a hairdresser to tidy up her hair, as best he could. K did not go to school.
The following Tuesday 13 November 2001, K returned to school. She had had a number of discussions with the school counsellor. She was a “problem student”. She had been involved with B and N in drinking alcohol at school. She had “wagged” from school to be with her boyfriend on a number of occasions. She had told a number of lies to school staff and to her mother and to the appellant about her behaviour. In the week preceding Sunday 11 November things had come to a head. Apparently because of repeated truancy, the possibility of expulsion was looming.
K admitted that to avoid this she had told the school counsellor she was pregnant to her boyfriend. Rather surprisingly, she said in cross-examination that she did not remember this with certainty, but agreed that it had probably happened. The counsellor had discussed the pregnancy with her, and had discussed the possibility of termination. Obviously, K was backing herself into a corner. When she returned to school on Tuesday 13 November she dealt with the fictitious pregnancy by telling the counsellor that on the week-end the appellant had hit her in the stomach, causing her to miscarry. She said she had been to a doctor on the Monday. That was true. However, the doctor was called by the defence and said that he was consulted only in connection with a sore throat. K told the school counsellor a number of lies to bolster her story that she had miscarried.
K’s stories had reached a point at which her parents were likely to become aware of her claims, and involved in them.
As I understand it, K went from school to her boyfriend’s home at some stage that day. She did not tell her parents where she was, and they reported to the police that she was missing. On Wednesday 14 November K went to the police with her boyfriend, and complained for the first time about the appellant’s conduct. She had not told the counsellor about it.
The appellant became aware that K had made allegations against him, although just when he became aware of this is not clear. As I understand it, he was not informed in full of the allegations until spoken to by the police in May 2002. However, it appears to be the case that he had some knowledge of the allegations before this.
Mr Peek made a number of points about K and the events that led up to her going to the police. K was in a lot of trouble at school. She had told a number of lies, of a serious nature. As he said, she was a practised liar. Her own lies were creating complications for her. K admitted that she and her friends B and N had lied to help each other out on a number of occasions. That was relevant to the evidence that the friends gave supporting K’s evidence about being shown pornography. Mr Peek said that there was a history of disputes between K and the appellant over K’s conduct, and her behaviour with her various boyfriends. There was obviously an issue of parental discipline. Mr Peek said that a crisis point arrived when the appellant told K that she and her boyfriend would no longer be allowed to see each other. There were plenty of reasons for K to run away with her boyfriend, and to resort to another series of lies to escape from the control of her parents, and to avert the consequences of previous lies that K had told.
Mr Peek examined K’s evidence in some detail. He made the point that on a number of matters of detail K’s evidence shifted, and there are a number of conflicts between her evidence and what she said to the police. K had never complained to anyone about sexual abuse by the appellant, or even physical mistreatment, apart from telling the counsellor (untruthfully) that he had punched her in the stomach and brought on a miscarriage. Mr Peek referred to the evidence that showed that K had been a troublesome student. I have already mentioned the point that, according to the appellant, the layout of the shed described by K did not come into existence until after the occasions on which K said the two acts of intercourse in the shed took place. Mr Peek referred to the evidence of the appellant’s mother relating to count six, that appeared to conflict with that of K, at least in relation to timing. He referred to the evidence of Mr Cornish who was at the appellant’s house on Sunday November 11 quite early, carrying out some work on the house. Mr Cornish heard some yelling and screaming from inside the house, when he was working outside, and must have realised that some kind of domestic dispute was taking place. However, a little later he came into the house and K spoke to him apparently normally. When he left, at about 11.00am, the appellant and his wife were still there. On the other hand, on K’s evidence about count nine, K’s mother had already left and the act of fellatio had already taken place.
In short, Mr Peek argued that K was a demonstrably unreliable witness, a problem child, who had every reason to invent allegations against the appellant at about the time when things came to a head.
Ms Abraham QC, counsel for the Director of Public Prosecutions, contested a number of the points made by Mr Peek. I will refer to some of them in due course. It is not necessary to deal with all the details. But she made the point that this was not an unusual case of its kind. She said that K was obviously a rebellious teenager, but that at the end of the day that was all that it amounted to. In effect her argument was that when one looked in the broad at the misbehaviour by K, it was misbehaviour of a kind that is not by any means unknown, and it was well within the capacity of the jury to assess it and to decide whether or not K was to be believed. In this respect Ms Abraham referred in particular to the evidence about consumption of alcohol, about truancy and about telling lies. She said that a number of the deficiencies in K’s evidence were really matters of detail or of the timing of events, and did not involve demonstrable inconsistency between K’s evidence of alleged offences and matters deposed to by other apparently reliable witnesses.
There is another point to be made here. There is force in the submission made by Mr Peek and in the submission made by Ms Abraham. Neither submission can be dismissed out of hand. It should also be said that K’s conduct, or misconduct, could be the result of her reaction to prolonged sexual exploitation of her by the appellant (if her allegations were true), or on the other hand could be the conduct of a child who had the ability and motive to manipulate others to her own ends (if her allegations against the appellant were untrue). K’s mother, the appellant’s wife, was not called to give evidence. That meant that by and large the evidence about what occurred within the family home between K and the appellant depended upon the evidence of K and the appellant.
Ground one – refusal to exclude evidence of semen on items seized and directions about that evidence
On 10 December 2001 several police officers went to the appellant’s home. They seized a number of towels, nine handkerchiefs and, apparently, the rug referred to by K in relation to count nine. The police officers did not comply with standing instructions relating to the search. They did not ask for a Crime Scene Investigator to attend. They failed to take an exhibit bag with them. They collected the items referred to and put them in one bag or several bags provided by the appellant’s wife. That raised the possibility of contamination attributable to mingling the items together. The procedure was rightly described by the Judge as “sloppy”.

The conduct of the police officers was not unlawful. It was said to be improper, giving rise to discretion to exclude the evidence. I am not satisfied that the exercise of that discretion arose. But in any event I agree with the Judge that there was no relevant unfairness here, and no reason in the exercise of a discretion based on public policy to exclude the evidence of the finding and analysis of these items. The jury were able to evaluate the evidence of the findings when the articles were examined, in the light of the evidence about the possibility of contamination.
Examination of these items disclosed that the appellant’s sperm were found on one towel, and on a handkerchief, and on that handkerchief a substance that could have been blood. On the rug the examiner found the appellant’s sperm and a substance that could have been saliva, but might not have been. The identification of the appellant as the source was based on the examination of DNA.
The appellant said that these findings could be attributable to the fact that he used towels and handkerchiefs when having intercourse with his wife, and also when masturbating. He said that he and his wife had had intercourse on the rug. However, he could not explain how K might have known that, and that his sperm or semen would be found on these items.
These findings were capable of providing some support for K’s evidence in relation to count three, count four, count five, count six and count nine.
The Judge’s directions to the jury about this evidence were adequate. He mistakenly told the jury that amylase, found on the rug, was consistent with the presence of saliva. It was, but it was also consistent with the presence of sperm, and so was an ambiguous finding. The point is a relatively minor one, and the Judge appears to have corrected it a few minutes later when he said:
“On the rug there is a question of it being consistent with saliva and ejaculate, some other part of the material that was found; namely the amylase”.
I am satisfied that there is no risk of the jury having been misled by this minor slip.
I consider that the Judge rightly refused to exclude the evidence, and adequately directed the jury in relation to it.
Ground seven – inappropriate cross-examination by prosecutor
The appellant was friendly with a police officer, Mr Probert. When K failed to return home on the Tuesday, the appellant and his wife reported her to the police as missing. Mr Probert was called by the defence to give some evidence about the layout of the shed in which some of the offences allegedly occurred. The prosecutor cross-examined him about an occasion when, shortly after K had run away, the appellant contacted Mr Probert to enquire whether K had been located. Mr Probert said that he obtained access to police computer records, and informed the appellant that K had been located. He flatly denied warning the appellant that K had alleged sexual misconduct on the part of the appellant. The relevance of this was that when the police seized the appellant’s computer, they found no trace of the pornographic images described by K. Nor did they find any evidence of material having been erased, although that would not necessarily have been detectable. An issue that arose was whether the appellant guessed that K would make allegations against him, or was alerted to this by Mr Probert. As I said, Mr Probert flatly denied doing so.
Apparently the police record that Mr Probert referred to K as having made allegations of rape. Quite unnecessarily in my opinion, the prosecutor elicited this from Mr Probert in her cross-examination. There was no reason to do that.
However, in his summing up the Judge directed the jury to ignore the content of the report that Mr Probert read. And, in the context of the allegations made by K, I do not agree that there was any risk of prejudice to the appellant’s case from a glancing reference like this to rape, at such an early stage of the investigations.
I reject the submission that the inappropriate question by the prosecutor gave rise to a risk of a miscarriage of justice.
Grounds two and three – directions relating to uncharged acts
The prosecution case included evidence of what are called uncharged acts. That gave rise to the need for appropriate directions relating to that evidence.
The evidence of uncharged acts falls into three categories. First, evidence by K that the appellant often used force in disciplining her. This evidence could be used to support an argument that K might submit to the appellant out of fear of him. It could also indicate a desire on his part to exercise control over her. The appellant denied this evidence. He said that he mainly relied on “grounding” to discipline K and slapped her only once in the relevant period. The evidence about the use of force was also part of the material that might suggest that K had reason for running away and making allegations against the appellant. Second, there was the evidence by K and her two friends that the appellant showed pornographic pictures to them on his computer. That could be used as evidence of inappropriate conduct by the appellant, indicating an inappropriate relationship with K, involving the use of material of a sexual nature. The third category is the evidence from K of numerous acts of indecency and intercourse apart from those charged. Taken as a whole this evidence could demonstrate a pattern of “grooming” K, accustoming her to sexual contact. It would also put the charges in the context of a course of conduct that might explain K’s failure to react with surprise to the particular charged acts. It could explain the appellant’s confidence that K would submit to him. The failure to complain about individual acts could be explained if the charged conduct was part of a pattern that continued for some time.
It was essential for the Judge to direct the jury how this evidence could be used, and how it could not be used.
I explained in R v Nieterink [1999] SASC 560; (1999) 76 SASR 56 that such evidence may be admissible and used as outlined above, although it discloses improper conduct and unlawful conduct, of the same kind as the offences charged. It may be admissible although it was not to be used like similar fact evidence, to provide a basis for reasoning that the person who committed the uncharged acts must be the same person as committed the offences charged; although not to be used to support an inference that the appellant was the sort of person who would commit offences of the kind charged; although not used to support a finding that the appellant had a propensity to commit these offences, leading to an inference that he did commit them. In Nieterink I also held that such evidence could be admitted and used as outlined above although it did not satisfy the test for admissibility stated in Hoch v The Queen (1988) 165 CLR 292 and in Pfennig v The Queen (1995) 182 CLR 461: see Nieterink at [42] – [80]. The decision in Nieterink has been followed by other members of this Court, most recently in R v Sciberras [2003] SASC 104; (2003) 226 LSJS 473 and in R v Clifford [2004] SASC 104; (2004) 233 LSJS 157. In Nieterink I considered a number of decisions of the High Court, and concluded that what I decided there was not inconsistent with any of them. Nor do I regard it as inconsistent with the subsequent decision of the High Court in KRM v The Queen [2001] HCA 11; (2000) 206 CLR 221. In particular, I consider that the decision in Nieterink is consistent with the reasons of McHugh J in KRM. I refer, without repeating it, to what I said about KRM in R v Tedesco [2003] SASC 79; (2003) 85 SASR 66.
When such evidence is tendered by the prosecution, its proposed use must be considered with care. It is not always the case that evidence from the alleged victim of similar incidents will be admissible. Everything depends on the nature of the evidence and the proposed use. R v BFB [2003] SASC 411; (2003) 87 SASR 278 provides an illustration of a case in which the evidence of uncharged acts was not admissible: Doyle CJ at [22] – [25].
When evidence like the evidence in question is admitted to explain aspects of the conduct of the alleged offender and the alleged victim, in the manner explained by me above, there is a need for particular care because of the risk of unfair prejudice to the accused. It may be necessary to warn the jury not to use the evidence to find or to infer that the accused is the kind of person who would commit the offences charged, and not to reason in this way that he did in fact commit them. The jury may need to be warned also not to reason that the appellant had done things equivalent to the offences charged on other occasions, and on that basis could be convicted of the offences charged, even though the particular offences charged are not proved beyond reasonable doubt. The risk of prejudice arises because of the similarity between the uncharged acts and the offences charged: Nieterink at [81]-[88] and KRM at [32]–[40] McHugh J.
It is important not to overburden a jury with instructions and warnings, but the nature of evidence of the kind in question calls for particular care. If directions are to be given to the jury they should be as clear and concise as is practicable.
The Judge emphasised that the charged acts had to be proved beyond reasonable doubt. He said this a number of times. He told the jury that this was so, even if they were satisfied that uncharged acts of a sexual nature had taken place. He said:
“You must not reason that there are lots of these charges hanging around the place, therefore, he must be guilty of something…that would not be appropriate”.
He explained that the evidence of uncharged acts was allowed so that the jury could “get the whole picture”. Referring to the evidence of uncharged acts he said:
“It might explain K’s reactions to certain events, and it sets out, on her evidence, the full relationship between the parties. It is for that reason that you have heard evidence of these uncharged acts, and it is not to be used in the way that I have forbidden; namely, you must not say ‘where there is smoke there is fire’, you must not say ‘I can find him guilty of something’, even though the elements of any of these counts have not been proved beyond reasonable doubt. I hope that is clear.”
He gave a similar direction in relation to the evidence that the appellant showed pornographic pictures to K and her friends. He said:
“You must not reason that because, if you accept it, he has shown them pornography, that he is the type of person who would commit these offences against K. I hope that is clear also.”
He said nothing specific about K’s evidence about the use of force to discipline her.
The directions that the Judge gave about the use of the evidence were adequate. I agree that the Judge could have been more specific about the use of the evidence than he was. I also consider it better not to refer to such evidence as disclosing the relationship between the parties, because that general expression could be seen as embracing a form of propensity reasoning. An explicit warning against propensity reasoning (reasoning that the uncharged act showed that the appellant was the sort of person who would commit the offences in question) could usefully have been given, but it was given in relation to the evidence about the pornographic pictures. It was implicit in the Judge’s reference to reasoning that where there is smoke there is fire. Taken as a whole, and considering what the Judge said about how the evidence could be used and could not be used, the directions were adequate.
There was a separate complaint that Mr Peek made. R v T [1999] SASC 242; (1999) 74 SASR 486 is a case in which the prosecutor relied on evidence of uncharged acts. The appellant was charged with sexual offences involving a young boy. The Judge’s direction as to the use of the evidence of uncharged acts was held to be inadequate, because of its lack of particularity: Prior J at [20]-[21], Mullighan J at [77]-[78]. The Judge also said that the evidence might cause the jury to doubt the appellant’s description of the offending conduct. Mullighan J, with whom I agreed, referred to the Judge’s failure to warn the jury that they should not reason that a conclusion that the appellant had not been truthful about his relationship with the victim might assist them in making a finding of guilt on the charges, even though evidence of the charges might be insufficient or unconvincing: at [77]. He identified that as a further deficiency in the Judge’s directions. My view is that there was no risk of that kind of reasoning in the present case, and no need for the Judge to give a particular warning or instruction to the jury about that. Mr Peek argued that, at the least, a direction of this kind was called for in relation to the assault charges, as to which he acknowledged that the case against the appellant was stronger. Again, I disagree. There was no risk of the jury using an adverse finding in relation to counts seven and eight as a basis for a finding of guilt on the other counts, if the evidence admissible on those other counts (apart from the evidence of assaults) was not capable of satisfying them beyond reasonable doubt.
It is impossible to provide a formula to be used in each case. A court of appeal must allow appropriate scope for a trial judge to choose the manner in which the jury will be guided, and to decide the degree of emphasis to be given to the guidance. There is scope for variation in these matters, as long as, in the end, the necessary guidance is given about how the evidence can be used, and necessary instruction given about how it should not be used.
I accept the submission by Mr Peek that the evidence of uncharged sexual acts could not explain K’s submission to the first two offences involving sexual acts. That is a point of detail. The failure to tell the jury that does not give rise to an appreciable risk of a miscarriage of justice. The failure to explain the relevance of the use of excessive force in disciplining K, if the jury accepted the evidence, was a blemish, but a relatively minor one. I consider that the relevance of this evidence would have been obvious to the jury. They would have understood that its relevance was to establish that fear of the appellant might have been a factor in K’s submission to the appellant.
Mr Peek argued that the evidence of K, B and N about the appellant showing them pornographic pictures was not admissible. He argued that there was a real possibility that K, B and N had fabricated this evidence. There was strong evidence that in the past they had lied to help each other. That being so, there was a realistic possibility that the evidence was concocted. He argued that the case was analogous to Hoch v The Queen (1988) 165 CLR 292, and that the possibility of concoction meant that the evidence was not admissible.
I do not accept the submission. Hoch is a case in which the Court was concerned with evidence of several victims the subject of separate offences on separate occasions. Their evidence was used to support an argument that features of correspondence in their account of the accused’s conduct demonstrated their truthfulness. The argument was that the correspondence could not be explained as mere coincidence. In those circumstances, as the High Court held, it was necessary for the trial Judge to exclude the possibility of concoction, before the evidence could be used as proposed. If there was a possibility of concoction, then the evidence could not be used to support a finding of guilt, reasoning in the manner indicated. The present case is simply one in which three witnesses have described the same event. The force of their evidence does not rest on the unlikelihood of their evidence corresponding, that unlikelihood supporting the evidence of each of them. In the present case the possibility of collusion was simply something for the jury to consider when deciding whether or not to accept the evidence of B and N in particular.
That leaves for consideration the issue of whether the Judge was obliged to direct the jury that they could not take into account any uncharged act unless satisfied beyond reasonable doubt that the uncharged act in question had occurred. The Judge was asked to give such a direction by counsel for the appellant at trial, but declined to do so.
In Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106 the accused was charged with four counts of indecent assault and three counts of rape. The alleged victim was his stepdaughter. The prosecution case depended largely on her uncorroborated evidence. She gave evidence that the appellant had regularly molested her before the occasion of the first offence, and from the time when she was about four years of age until she was about 16 years of age. In relation to this evidence of uncharged acts, which was given in a very general fashion, the trial Judge merely told the jury that the evidence was led to show the nature of the relationship between the complainant and the accused, and he told the jury that they need not be satisfied beyond reasonable doubt in relation to this evidence. It was sufficient if they “accepted” the complainant’s evidence of uncharged acts. So Gipp is a case in which the directions about the use of the evidence were unsatisfactory, and this was coupled with the fact that the Judge told the jury in terms that they did not have to be satisfied beyond reasonable doubt that the uncharged acts had occurred.
Gaudron J said that the directions left open the possibility that the jury might reason from a finding, on the balance of probabilities, that there was a relationship involving sexual abuse, to the conclusion that the appellant was guilty of the specific offences charged: at [21]. Accordingly the conviction was unsafe. I respectfully agree. McHugh and Hayne JJ dissented. They said it was clear that the evidence of uncharged acts was admitted only to make intelligible the circumstances of the offences charged. There was no suggestion that the jury might reason from this evidence that the appellant committed the offences charged: at [75]. They agreed that if this evidence had been directed to specific incidents, and led to support a finding of “guilty passion” in support of the charges, the jury would have to be directed that the incidents had to be proved beyond reasonable doubt: at [76]. They went on to say at [79]:
“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 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.” (Footnote omitted)
Kirby J agreed that if the evidence of molestation might have been part of “indispensable links in a chain of reasoning towards an inference of guilt”, the jury should have been warned that the link had to be proved beyond reasonable doubt: at [139]. He also agreed that it was possible that the jury had reasoned to guilt from satisfaction, on the balance of probabilities, of the existence of an ongoing sexual relationship: at [142]. Accordingly, there had been a miscarriage of justice. In his reasons Callinan J concentrated his attention on the admissibility of the evidence, rather than on the standard of proof. However, he agreed that whether the evidence was admitted as propensity evidence, as it might have been (at [183]), or as “background evidence”, (at [181]-[182]), the directions as to its use were inadequate.

In Nieterink, after referring to the decision of the High Court in BRS v The Queen (1997) 191 CLR 275 and in Gipp, I made the following observations with reference to the standard of proof, at [83]:
“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.”
As my reasons indicate, my observations proceeded on the basis that the directions given left open the possibility that the evidence of uncharged acts would be used as proof of a sexual attraction, and as “an indispensable link in reasoning to guilt”. The jury had not been told with sufficient clarity either how they could use the evidence in question, or how they could not. They were not told not to use it in a manner that involved propensity reasoning.
Mr Peek referred the Court to a number of decisions in which observations are made about the degree of proof required when evidence is given of uncharged acts. He relied on these cases to support a submission that the Judge erred in failing to direct the jury that before they could take into account any uncharged act, they had to be satisfied beyond reasonable doubt that the act in question had occurred as stated by K, or in the case of the pornographic pictures, by K and her two friends.
I do not accept this submission.
It is not easy to trace a consistent line through the cases. One reason for this is that each case has to be considered in light of the use to be made of the evidence in the particular case. As I said in Nieterink at [83] (above), and as McHugh and Hayne JJ said in Gipp at [79] (above), the direction to be given as to the degree or standard of proof will depend upon the use to be made of the evidence in question. The differing views expressed in Gipp reflect, to some degree, different views of how the jury might have used the evidence under consideration.
I propose to refer to some but not all of the cases to which Mr Peek referred. I do so because I consider that, in the end, the case law reflects four basic propositions. The first is that it is the charge, and not the surrounding facts and circumstances, that must be proved beyond reasonable doubt. The second is that sometimes a fact or circumstance may be of such significance in the process of reasoning to a finding of guilt that it must be proved beyond reasonable doubt. The third is that particular care is called for if the evidence is to be, or might be, used to support a form of propensity or tendency reasoning. The fourth is that, trial judges should avoid confusing juries by introducing reference to differing standards of proof. In the end, subject to observing the requirement that the judge adequately direct the jury about how evidence of uncharged acts can be used and cannot be used (and again, the nature of the direction will depend upon the nature of the case), it is ultimately a matter of applying these basic principles to the circumstances of the particular case.
This is not to deny that in some cases observations have been made that might suggest that evidence of uncharged acts cannot be acted upon by a jury unless they are satisfied beyond reasonable doubt that those acts occurred as claimed by the relevant witness. But that cannot be correct as a general or universal proposition.
R v FJB [1999] VSCA 90; [1999] 2 VR 425 is a case in which, like Gipp, the Judge’s directions as to the use to be made of the evidence of uncharged acts were inadequate. The uncharged acts occurred on the same occasion as the charged acts. That is an unusual feature. The Judge told the jury that the evidence provided background and context, and did not warn them against inappropriate use of the evidence. The Judge also told them that the evidence was relevant to the complainant’s credibility. The Judge told the jury in terms that they did not have to be satisfied beyond reasonable doubt that the uncharged acts had taken place. Not surprisingly, in the unusual circumstances of the case these directions were found to be inadequate. Charles JA, with whom the other members of the Court agreed, considered the reasons of the High Court in Gipp at some length and then concluded at [39]-[41]:
“No doubt, as McHugh and Hayne JJ observed in Gipp at [79] above, it is the charge, not the surrounding facts, which must be proved beyond reasonable doubt. But the various passages already quoted from the judgments in Gipp demonstrate the difficulties inherent in attempting to formulate any general propositions in relation to the standard of proof which ought to be applied to uncharged acts.
The circumstances of the present case, and the course of the trial, present, in my view, no such difficulties. Mr Holdenson’s submission was that the uncharged acts were here inextricably intertwined with the charged acts, and that the Crown had relied on them in proof, or to assist in proof, of its case. Accordingly he submitted that it was artificial to distinguish between standards of proof as to the charged acts and the uncharged acts, and that it was erroneous to direct the jury that there was a different and lesser standard of proof in respect of the uncharged acts.
In my view Mr Holdenson’s submission should be accepted. Since the jury were given inadequate instruction as to how they should use the evidence of the uncharged acts, it was plainly possible that they may have used this evidence in proof of the prosecution’s case in an impermissible fashion, whether in relation to the complainant’s credibility, or as a link in the chain of proof. In so doing, the jury is likely to have acted on the judge’s direction that they need only be persuaded beyond reasonable doubt as to the charged acts. Indeed, having regard to the facts that the oral penetrations were an inextricable part of the course of conduct covering the offences charged (inseparably wound up, as the judge put it, with the counts) and that his Honour had given the jury an explanation as to why they could not be the subject of specific charges, it is almost inevitable that the jury, if satisfied on the balance of probabilities that those acts occurred, would carry those findings into their consideration of the offences charged. Viewed in this way, the evidence of the oral penetrations was, in truth, not contextual but an inseverable part of the course of conduct giving rise to the offences charged. As such it was entirely artificial and confusing for the jury to be told that they could apply differing standards of proof to the specific events forming part of the same course of conduct.”
What his Honour said is consistent with what I said in Nieterink. The decision is a good illustration of how a failure to give adequate directions about the use of the evidence, coupled with the inappropriate introduction of a reference to a lesser standard of proof, resulted in error.
R v Kostaras [2002] SASC 326; (2002) 222 LSJS 373 is a case in which charges were brought against a teacher, alleging four counts of unlawful sexual intercourse with a student of his, a boy of 15 years of age. Evidence of a number of uncharged acts of a sexual nature was admitted. In my reasons, with which the other members of the Court agreed, I explained how the evidence might be used at [41]:
“The evidence from the complainant of uncharged acts was admissible. The evidence provided a setting in which the offences charged allegedly occurred. The evidence helped explain why the complainant might be unclear about the precise dates and details of the offences charged. The evidence would help explain the complainant’s acquiescence. Without knowing of the allegation of repeated sexual acts, the jury might find it difficult to understand and to accept evidence of four apparently isolated acts occurring during the course of the year. Although the evidence about how the appellant gained the complainant’s trust and friendship would help explain the complainant’s evidence, the evidence of the uncharged acts was important in this respect.”
There was no suggestion in this case that the evidence of uncharged acts might be used by the jury to reason that the appellant was a person likely to have committed the offences charged. In Kostaras I reconsidered my reasons in Nieterink, in light of the High Court decision in KRM. I took the view that the reasons given in KRM did not require me to qualify what I had said in Nieterink. Accordingly, in relation to the degree or standard of proof, I adhered to what I said in Nieterink.
R v Sciberras [2003] SASC 103; (2003) 226 LSJS 473 is another case involving sexual offences, the complainant in this case being a young girl with whose family the appellant was friendly. The appellant was charged with three offences. The complainant gave evidence of three uncharged acts, each involving sexual misconduct. The Judge gave the jury directions about the use of this evidence which were found to be adequate. There was no suggestion that the jury could use the evidence to support a form of propensity reasoning. There was no direction not to do that, but on appeal the Court was satisfied that the jury would have understood how they could use the evidence and how they could not use it.
The reasons of the Court were given by Bleby J, with whom the other two members of the Court agreed. In relation to the use of the evidence in question, and the degree of proof, he said at [37]:
“I return to the purpose for which the trial Judge directed the jury that the evidence of uncharged acts could be used. The first purpose was for assisting in assessing C’s honesty and reliability. That did not require proof of any facts beyond reasonable doubt. The second purpose was to explain why the accused seemed to have confidence that he could perform the later acts on C without fear of her complaining to her parents. They were the only two purposes for which the trial Judge directed the jury that the evidence could be used. Neither of those purposes could be said to form or be interpreted as being “an indispensable link in reasoning to guilt” (see Nieterink (supra)). The trial Judge was therefore correct in saying that they did not have to be proved beyond reasonable doubt.”
He added at [39]:
“I agree that introducing directions which specifically negate the need for proof beyond reasonable doubt can be confusing, and that it is better to avoid such confusion by not referring specifically to a lesser standard of proof as was done on this occasion. However, in the circumstances, this did not amount to a misdirection.”
The approach taken by the Court in that case is consistent with the approach taken in Nieterink.
R v Clifford [2004] SASC 104 is a case in which the complainant gave evidence of many uncharged acts of a sexual nature, extending over an 11year period. The complainant was about seven years of age when the acts began, and about 18 years of age when they finished. On appeal the Court held that the evidence was admissible, because without it it was not possible to understand the nature of the relationship that developed between the complainant and the appellant: at [39]. The Court held that the directions as to the manner in which this evidence could be used and could not be used were sufficient. The Judge had directed the jury not to act upon the evidence of uncharged acts unless satisfied beyond reasonable doubt of the truth of that evidence. A significant feature of this case is that the complainant was not able to identify the uncharged acts with any particularity at all, and indeed the main complaint on appeal was that the charges themselves also had not been adequately particularised. That complaint did not succeed. The submission on appeal relating to the standard of proof appears in the following paragraph of the reasons of Bleby and Sulan JJ at [43]:
“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.”
That complaint was rejected. Their Honours said at [55]-[57]:
“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.”
This was an exceptional case. Having regard to the difficulty of particularising the offending conduct it may b e that it was appropriate to direct the jury that they must be satisfied beyond reasonable doubt that the course of conduct had occurred as alleged over the 11 year period, before they could decide beyond reasonable doubt which charges were proved. However, I agree that there is force in the points that Vanstone J makes about the decision. It is unnecessary to decide the point, because the unusual feature of Clifford is not present in this case.
As I said, Mr Peek and Ms Abraham referred to a number of other decisions, but I do not find it necessary to refer to each of them.
It is unwise to attempt to lay down general rules to cover all situations in which the prosecution case includes evidence of uncharged acts. I refer here only to cases in which the evidence of uncharged acts is admitted on the basis identified by me in Nieterink, as distinct from such evidence being admitted in compliance with the requirements of Pfennig and Hoch and being used as the evidence was used in those cases. Bearing that caveat in mind, I make the following points.
As courts of appeal have said time and again, in such a case the trial judge should explain to the jury how the evidence can be used, and how it cannot or should not be used. The judge should be as specific as practicable. If this is done it will provide the jury with essential assistance. Undertaking that task also assists in clarity. It is the duty of the prosecutor to assist the judge by identifying clearly, at an early stage of the case, the basis upon which the evidence is tendered, how it is to be used and how it is not to be used.
Usually it will not be sufficient to tell the jury that the evidence throws light on the relationship between the accused and the complainant, or provides context or background. The judge should be more specific. In a number of the passages cited above there are illustrations of how the appropriate use of the evidence can be identified more specifically than that. It may be appropriate to warn the jury against so called propensity or tendency reasoning, that is, reasoning from the evidence of uncharged acts that the accused is the sort of person who is likely to commit the offences charged, and therefore did commit them, or reasoning in a case of sexual offences that the uncharged acts establish a sexual attraction that suggests that the accused is likely to have committed the offences in question and did commit them. It is preferable to avoid the use of the term “propensity” in the directions to the jury, and to use simpler and more direct language.
The prosecutor must be able to present the prosecution case in a sensible fashion. Often a prosecution case would be incomprehensible if evidence was not given of the course of conduct between the accused and the complainant. The reasons are well known. Nor is it an answer to that point for the prosecution to lay numerous charges. That course of action brings with it other difficulties. But at the same time the court must protect the accused against unfair prejudice. It is usually impossible for defence counsel to cross-examine sensibly or to any great effect on evidence of numerous similar acts on unspecified occasions over a substantial period of time. The court must give directions that will protect the accused against the risk of the jury misusing evidence of uncharged acts.
It is the charges that must be proved beyond reasonable doubt, not the surrounding facts, and in particular not facts that explain the conduct of the accused or complainant, such as submission by the complainant to the accused, the failure by the complainant to complain, and why the accused might have been confident in taking opportunities to commit offences.
The trial Judge should avoid introducing a reference to a lesser standard of proof than that of proof beyond reasonable doubt, when referring to evidence of uncharged acts. To do so is likely to confuse the jury. As I said in Nieterink , it is safer and simpler, if something is to be said, to refer to the uncharged acts being proved, even though that might convey to the jury that what is required is proof beyond reasonable doubt. However, it is not necessary to say anything at all about the standard of proof, even though that might leave the jury thinking that what is required is proof beyond reasonable doubt.
There will be cases in which the circumstances make it appropriate to direct the jury that evidence of uncharged acts must satisfy them of some matter or circumstance beyond reasonable doubt. Such cases will be the exception. A case in which the evidence is used to establish a matter that is an indispensable step to a finding of guilt is one in which a direction requiring proof beyond reasonable doubt is appropriate. As to that, I refer again to the observations by McHugh and Hayne JJ in Gipp at [79]. The usual illustration given of a case like that is R v Ball [1911] AC 47. Such cases will be exceptional.

A direction that the jury should be satisfied of a matter beyond reasonable doubt is not required merely because the jury might regard the matter as significant or important. One can never know when a jury will do that, and there are many items of evidence that might be so regarded by a jury. The direction is usually called for when the jury will necessarily regard the establishment of the matter as indispensable to a finding of guilt.
Usually evidence of uncharged acts will not be admitted and used to prove the existence of an improper sexual relationship, or a guilty passion, relied upon in turn to prove the commission of the offence in question, on the basis that either of these matters, if established, would make it more likely that the offence was committed. Usually the jury will be warned against reasoning in that fashion. Further, if evidence is to be used on that basis, my tentative view is that that would make it appropriate to warn the jury not to act on the evidence unless satisfied beyond reasonable doubt that it was true. Gipp indicates that is the course to be taken in that situation, and in any case in which the uncharged acts are used to support a conclusion of guilt based on propensity reasoning.
In the light of this, I consider that the Judge’s directions were adequate. His failure to direct the jury that they must be satisfied beyond reasonable doubt of the occurrence of each of the uncharged acts, before they could act on that evidence, is not an error. It was not necessary to give that direction.
I would reject these grounds of appeal.
Ground six – directions in relation to delay, the credibility of K and the manner in which the defence case was put
Mr Peek argued that the Judge gave inadequate directions relating to the significance, and effect on the defence case, of the time that elapsed between the events in question and the trial. He complained in particular that the Judge did not give a separate direction dealing in this respect with the evidence of uncharged acts.
According to K the excessive physical discipline began in about 1997. The sexual misconduct began in 1998 or 1999, and seems to have continued until she left home in November 2001. The police came to the appellant’s home on 10 December 2001. They seized various items then. The appellant agreed in cross-examination that he knew about K’s allegations about a month before then, but it seems to be common ground that he did not know the detail of the allegations. I understand that detailed allegations were put to the appellant in May 2002.
About five years elapsed between the first acts complained of, and the police putting the allegations to the appellant in detail. It was about seven years to the start of the trial. The prosecution case depended substantially on the evidence and credibility of K. There was, however, some evidence that was capable of supporting her credibility. I agree that having regard to the general nature of the evidence of the uncharged acts, and to the passage of time, it was appropriate to proceed on the basis that the appellant was disadvantaged in testing the prosecution case, and in particular in obtaining evidence that might contradict K on matters of detail in relation to occasions when sexual misconduct was alleged to have occurred. The generality of K’s allegations of uncharged acts made them more or less impossible to test. Allegations made not long after the event in question might have been able to be tested, although that would depend upon the circumstances in which the event occurred. I accept Mr Peek’s submission that the defence was disadvantaged by the delay. I agree also that there will be cases in which it is appropriate to warn a jury that the defence has been prejudiced in meeting evidence relating to uncharged acts, because of the passage of time: see R v RWB [2003] SASC 420; (2003) 87 SASR 256 at [2] Bleby J, at [56]-[59] Besanko J and at [91] Sulan J; R v BFB [2003] SASC 411; (2003) 87 SASR 278 at [43] Doyle CJ, at [52] Perry J. The need to consider such a warning is not limited to evidence tending to prove an offence actually charged.
In the present case it was appropriate to bring to the jury’s attention the disadvantage that the defence faced in testing the evidence of uncharged acts.
A warning given specifically in relation to uncharged acts would have to be tailored to the circumstances. It would not usually be appropriate to tell the jury that it was dangerous to convict on the basis of such evidence, because in a case like the present no suggestion was made that the jury should reason in that fashion. For reasons that will appear, it is not necessary to consider further the terms of the appropriate warning.
The Judge drew the jury’s attention to the effect of delay on the defendant, and gave them a warning. The Judge said:
“I direct you that for a number of reasons you must assess the evidence of K very carefully. Obviously, the allegations that have been made in her evidence, especially from counts 1 to 6, start as early as possibly 1998, and the accused was first made aware of these allegations by the police on 10 December 2001 and, more particularly, in May of the following year. Because of that period of time between when these events are said to have taken place at their earliest and the accused having been made fully aware of them, through to May of 2002, this puts the accused at a distinct disadvantage in defending this matter. You see, a person who is alleged to have done something, if he, shortly after it happened, knew about it and protested his innocence he might make inquiries about where he might have been, or he might not have been, on a particular occasion. However, when it is something like four to five years after the allegation that he first becomes aware of it, and where there is a vagueness as to the actual dates that are alleged, as we have got here – and understandably so – that puts him at a disadvantage in getting together his defence and defending the matter. I mean, that’s a matter of commonsense, and it is obvious.
So, for that reason, I warn you, especially in relation to counts 1 to 6, it would be dangerous to convict the defendant on those counts because of that difficulty. However, that is not to say that you cannot convict him and, of course, that depends on your assessment of K and the other evidence that has been presented to you.”
The Judge added that they should treat K’s evidence with special care, and that they could only convict the appellant after carefully scrutinising K’s evidence.
The jury would have understood that direction to relate to all of K’s evidence about misconduct by the appellant. There was no need for the Judge to give two separate directions or warnings, one in relation to the offences charged (the main thrust of the warning given) and one in relation to the uncharged acts. The only point in doing so would be to emphasise the generality of the evidence of the uncharged acts, and how that generality disadvantaged the defendant. The jury would have had no difficulty appreciating that point, bearing in mind what the Judge said to them.
I reject the other criticisms made of the summing up under this heading. In summarising K’s evidence for the jury, the Judge canvassed K’s cross-examination quite extensively, and in a manner that brought to their attention her admissions of matters like her disputes with her parents, her wagging from school, the fact that she was in trouble at school, her relationship with her boyfriend, the fact that she told no one about A’s conduct and other matters. The Judge reminded the jury of a number of matters that were said to reflect adversely on the credibility of K, or on the likelihood of her story being true, or that were said to provide some support for the appellant’s evidence. The Judge fairly canvassed the defence case as a whole.
In my view the directions relating to the credibility of K, and the defence case generally, were fair and adequate.
Ground five – directions relating to esoteric knowledge
The appellant gave evidence how K might have learned of the deformity of his penis, and also offering an explanation for the finding of sperm or semen on some of the items taken from his home.
As I understood him, Mr Peek argued that the Judge should have directed the jury that they would have to be satisfied beyond reasonable doubt that K’s evidence on these matters was true, and was based on information acquired in the manner she claimed, before they could use this material as part of the evidence to be weighed in deciding whether the relevant charges were proved beyond reasonable doubt.
I disagree. These are not matters that had to be established beyond reasonable doubt before they could be taken into account by the jury. The evidence was to be considered along with all the other evidence in deciding whether the prosecution case was proved.
Ground four – failure to direct jury about the significance of a finding on count seven and count eight
A decision that count seven or count eight had been proved would not be of much assistance at all in relation to the other counts, except perhaps count nine. It was common ground that the events the subject of count seven and eight occurred in the course of a major family dispute. The dispute was as to the amount of force used (the appellant said he used a wooden spoon, not a chopping board) and as to the reasonableness of the forcible hair cut. In that sense, although rightly joined in the information, these counts stood somewhat apart. An acquittal on these counts might reflect on K’s credibility, but would not necessarily damage her credibility in a significant way. Whether it did would depend upon the reason for the jury not being satisfied beyond reasonable doubt.
The Judge did not give the jury any directions on this point. In my view the jury did not need assistance in this respect. They would have been able to work out for themselves the significance, if any, of the conclusion they reached on these counts.
Ground eight – miscarriage of justice
This ground is based on the other grounds of appeal taken in combination, together with all of the matters raised by Mr Peek which he argued cast doubt on the prosecution case, or supported the defence case.
I understand this ground to raise an argument that, acting reasonably, the jury should have had a reasonable doubt and should have acquitted.
In my summary of the case I accepted that the arguments advanced by the defence were matters that could give rise to a doubt about the appellant’s guilt. There were reasons why K might have run away and made false allegations against the appellant when she did. There was good reason to scrutinise her evidence with care. There are difficulties with aspects of K’s evidence.
On the other hand, much of what Mr Peek pointed to could be attributed to the behaviour of a rebellious teenager, or to the disturbed behaviour of a teenager suffering from sexual abuse.
The Judge’s directions relating to the prosecution case and the defence case were concise but thorough. The Judge fairly canvassed the issues for the jury. The directions in relation to uncharged acts could have been more detailed, but in the circumstances were adequate. The case was a difficult one for the jury. However, I do not agree that it was not open to them, acting reasonably, to find the appellant guilty beyond reasonable doubt.
As I said in R v Corrigan (1998) 74 SASR 454, in circumstances like this case a court of appeal cannot suspend judgment and consider the facts on the basis that anything is possible or plausible. But the court should also be careful before it treats evidence of a sexual offence as implausible because the court would not have expected the offender to act as the offender is alleged to have acted. The experience of the courts is that sexual offences involving children occur in circumstances that can only be regarded as surprising and, from the point of view of the offender, involving a significant risk of detection. The experience of the courts is also that inaccuracies and discrepancies will often be found in the evidence of children and young persons the victims of such offences, but that is hardly surprising.
The appellant has had a trial according to law, and overall a fair trial. It was open to the jury to find him guilty as they did.
Conclusion
For all those reasons the appeal should be dismissed.
PERRY J In my view, the appeal should be dismissed. I agree with the reasons of Doyle CJ.
I add some comments of my own on the question of the standard of proof of uncharged acts of sexual misconduct.
During the course of argument, Ms Abraham QC of counsel for the respondent, submitted that the recent decision of this Court in R v Clifford[1] is, on this question, inconsistent with R v Sciberras.[2]
[1] [2004] SASC 104.
[2] [2003] SASC 103, (2003) 226 LSJS 473.
Properly understood, there is no inconsistency between the two cases.
Clifford was a case where the uncharged acts extended over a period of some eleven years, when the complainant was between about 7 and 18 years of age.
The acts progressed from indecent touching and rubbing to full sexual intercourse at about the age of 10 years, and continued regularly thereafter throughout the whole of the period.
Not surprisingly, the complainant could not remember many specific incidents with much particularity, and in the main could speak only in general terms of a developing course of conduct.
Her evidence of the general course of conduct was held to be relevant:
“[39] … 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.”
In that case, this Court held on appeal that despite the fact that the complainant was unable to describe the course of conduct with any degree of particularity, the evidence of the course of conduct was admissible.
The court held further that although the evidence of the uncharged acts may not have been an indispensable link in the chain of proof, the trial judge correctly directed the jury that they should not act on the evidence of the uncharged acts unless the jury was satisfied beyond reasonable doubt of the truth of the evidence.
Although the appellant made no complaint about that direction, the appellant submitted that:
“[43] … 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 rejecting that argument the court held that the jury might rely upon the course of conduct if it found the course of conduct proved beyond reasonable doubt, despite the lack of particularity as to individual acts occurring during the course of conduct.
In so holding, the court held that although evidence of the conduct:
“[56] … 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.”
I concurred with the joint judgment of Bleby and Sulan JJ to that effect.
In my view, that case was an illustration of that class of case where the particular incidents the subject of the charged acts are so interwoven and so closely related to a course of conduct extending over a period of time, that it would be artificial for the court to suggest that a conviction could safely be reached by applying one standard of proof to the offences charged, and another standard of proof to the uncharged acts, or the course of conduct of which they were part.
But the problem may not arise in that way in other cases where uncharged acts are alleged. In most cases, the ordinary rule applies, that is, that unless evidence of the uncharged acts amounts to an “indispensable link” in the chain of reasoning to guilt, it does not have to be established beyond reasonable doubt.
But as Doyle CJ observed in Nieterink,[3] evidence used as proof of “sexual attraction” or, as it has sometimes been described, a “guilty passion”, may amount to an “indispensable link” in the claim of reasoning to guilt, and the higher onus may apply.
[3] [1999] SASC 560, (1999) 76 SASR 56.
The court held in Clifford that proof of the course of conduct, amongst other things:
“[39] … established an ongoing sexual attraction of the appellant towards the complainant”.
This constituted another reason why in that case it was thought preferable to insist on proof beyond reasonable doubt of the course of conduct.
Sciberras was a quite different case.
In that case, evidence of the uncharged acts was led and relied upon for a quite different purpose from the purposes which were identified in Clifford. The position is made clear in the following passage in the judgment of Bleby J, with which I and Nyland J concurred:
[37]I return to the purpose for which the trial judge directed the jury that the evidence of uncharged acts could be used. The first purpose was for assisting in assessing C’s [the complainant’s] honesty and reliability. That did not require proof of any facts beyond reasonable doubt. The second purpose was to explain why the accused seemed to have confidence that he could perform the later acts on C without fear of her complaining to her parents. They were the only two purposes for which the trial judge directed the jury that the evidence could be used. Neither of those purposes could be said to form or be interpreted as being ‘an indispensable link in reasoning to guilt…’. The trial judge was therefore correct in saying that they did not have to be proved beyond reasonable doubt.”
While the distinction between the circumstances in which it will be proper to direct the jury to apply different standards of proof should in an appropriate case be maintained, I agree with Doyle CJ that for trial judges to give a direction as to a lesser standard of proof applicable to evidence of uncharged acts, is likely to be confusing to the jury. If the usual general direction is given, that unless otherwise specified, when the trial judge speaks of “proof”, the jury should assume that this means proof beyond reasonable doubt, it should then be sufficient simply to direct the jury that if they are to rely upon uncharged acts, they must first be satisfied that they are proved.
What is more important, rather than risking confusing the jury by giving directions as to differing standards of proof, is to give a clear direction as to the use which they jury may properly make and which they may not make of the evidence of uncharged acts. Commonly, this will include a direction against propensity reasoning.
VANSTONE J I agree that the appeal should be dismissed. In relation to the grounds concerning directions as to use of the uncharged acts my reasons for so finding follow. As to the remaining grounds I agree with the reasons given by the Chief Justice.
Grounds two and three – uncharged acts
The appellant takes several points arising from the directions given by the learned trial judge in relation to the evidence before the jury of uncharged acts.
Before looking at the directions it is necessary to understand what was the evidence of uncharged acts and what was its relevance.

As is clear from the summary of the complainant’s evidence undertaken by the Chief Justice, she gave detailed evidence in proof of the charges, which spanned a number of years. But she also made clear that the charges were only the more memorable incidents in a course of conduct which involved numerous instances of the same kind. Her evidence of uncharged acts was as follows.
T/s 285
Q.     Did anything ever happen sexually between you and Ian in that bathroom.
A.     Yes.
Q.     Once or more than once.
A.     More than once.
T/s 289
Q.     Did anything ever happen in the shed.
A.     Yes, several times.
T/s 292
Q.     Prior to this time when he ejaculated on your back, had you seen your stepfather ejaculate before.
A.     Yes.
Q.     How many times, approximately.
A.     So many times I can’t even remember.
T/s 293
Q.     How often would your stepfather put his penis inside of your vagina.
A.     … like how often in a week?
Q.     Yes.
A.     Every second day, practically almost every day.
T/s 299
Q.     Over the period of time in the shed, about how many times would he have used a towel to wipe up what came out of his penis, can you remember.
A.     How many times?
Q.     Yes, about how many, lots of times or –
A.     There’s heaps of times, and if there is no towel he uses his hanky.
T/s 401
Q.     You said yesterday to the members of the jury that after this first act of vaginal sexual intercourse between you and your stepdad it happened every second day, practically almost every day.
A.     Practically, yes.
Q.     And normally in the shed.
A.     Not all the time in the shed, but most of the time, yes.
Inasmuch as the entirety of the complainant’s evidence occupied some 190 pages of transcript (more than two-thirds of which was cross-examination) the uncharged acts cannot be said to have figured very prominently in the trial. Nevertheless it was necessary for the learned trial judge to direct the jury as to the permissible and impermissible uses of them. He gave the following directions.
You have heard in this case evidence from [V] that after the first act of vaginal sexual intercourse, which took place in the shed, she said words to the effect, in her evidence, that this would happen quite often, I think she said almost daily, and quite often in the shed. In other words, there were many acts of sexual intercourse, on her evidence, which took place between she and the accused with which he has not been charged. You have heard evidence about them but he has not been charged with them. He has only been charged with these counts on this information.
Let me tell you something, and direct you, as to how that evidence can be used. You can only convict the accused of any count on which he is charged, and which has been identified in the evidence, and which is the subject of a count. If you found, for instance, that you were of the view that lots of these other acts did take place of a sexual nature, or acts of unlawful sexual intercourse did take place, with which he has not been charged but, nevertheless, there is a reasonable doubt in your minds as to any of these counts, you will find him not guilty of the count about which you have a reasonable doubt. You must not reason that there are lots of these charges hanging around the place, therefore, he must be guilty of something. Ladies and gentlemen, that would not be appropriate.
He can only be found guilty if he is found guilty of a particular count. You see, the purpose of that evidence being led with which he has not been charged is that it is very difficult for you to understand and appreciate all of the evidence, unless you get the whole picture.
You see, on any version of the facts, these two people knew each other very well, they were stepfather and stepdaughter. They lived in the same house. It would be utterly unrealistic to just talk about these charges and nothing else, without you hearing all of the other evidence, and all of the other evidence involves, on her story, the fact that these events took place on other occasions which have not been charged. The law is far more practical than that and says that you have to have the whole of the picture before you. And, in giving you the whole of the picture, you have heard about these uncharged acts although, I might say, briefly in her evidence. That allows you to assess the witnesses in the light of all of this evidence, and the whole story. It might explain [V]’s reactions to certain events, and it sets out, on her evidence, the full relationship between the parties. It is for that reason that you have heard evidence of these uncharged acts, and it is not to be used in the way that I have forbidden; namely, you must not say “Where there is smoke there is fire’, you must not say “I can find him guilty of something”, even though the elements of any of these counts have not been proved beyond reasonable doubt. I hope that is clear.
This evidence was not admitted as evidence of propensity. Indeed it could not answer the description of that evidence said to be prohibited in Lord Herschell’s first principle in Makin v The Attorney-General for New South Wales [1894] AC 57, 65. Lord Herschell said:
It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. (emphasis added)
The judges forming the majority in Pfennig v The Queen (1995) 182 CLR 461, 475 described Lord Herschell’s principle as having “continuing influence”.
In Gipp v The Queen (1998) 194 CLR 106 Gaudron J, and McHugh and Hayne JJ agreed, in separate judgments, that evidence of a type comparable to that set out earlier was not propensity evidence.
Not only was the evidence not admitted to demonstrate propensity, but nor in my view did it have the capacity to do so. In cases such as the present where what is in issue is evidence of uncharged acts relating to the same relationship as that giving rise to the charges, it would be quite unusual for the evidence to be led as evidence of propensity. R v Ball [1911] AC 47 was such an exceptional case. There the prosecution adduced no direct evidence to prove the charges of incest. Only by reasoning from a finding that the defendants had previously had a child together (at a time, when incest was not unlawful) coupled with the fact that they were occupying the same bed, could the jury infer that they were engaged in a sexual relationship. Thus the evidence tending to prove a sexual relationship at an earlier time could be seen as an indispensable link in the chain of reasoning leading to guilt, or as an intermediate fact necessarily requiring proof beyond reasonable doubt. (See Shepherd v R (1990) 170 CLR 573 at 579 per Dawson J, with whom Toohey and Gaudron JJ agreed.)
In that context the references by members of the House of Lords in Ball to the evidence being proof of a “guilty passion” is explicable. However it seems to me that this expression is inappropriate to describe the type of evidence which was led against the appellant. Indeed, even had the evidence been detailed and directed to specific occasions, I should have held the same view.
The evidence against the appellant was led to throw light on aspects of the victim’s evidence concerning the charges themselves. It could do that, as the learned trial judge explained, by assisting the jury in understanding and assessing the complainant’s evidence of the charges, the entirety of the relationship between herself and the appellant and her acquiescence in and reaction to the events as they were said to have taken place. Further, it could explain why, when in relation to count 6 (fellatio in the shed, said to have occurred on the appellant’s birthday) the victim described the appellant instructing her to “change into your pyjamas and go into the shed and spoil me”, she understood him to mean he wanted to have sexual intercourse with her. In these ways the evidence tended to show an inherent consistency in the complainant’s story. It could also explain why the appellant learned to expect the complainant’s co-operation in finding opportunities for sexual interaction and how he became accustomed to undertaking a level of risk of being detected. None of these uses related to propensity.
The learned trial judge properly warned the jury against being influenced against the appellant by the sheer breadth of the allegations against him and against using an adverse finding against the appellant as to some instances of misconduct as a substitute for a finding of proof on the specific counts. (See R v Dolan (1992) 58 SASR 501 at 503.) I consider the warnings were sufficient.
The appellant specifically complains that the learned trial judge should have directed the jury to the effect that they were not entitled to take into account any of the uncharged acts unless they first determined that they were satisfied beyond reasonable doubt as to them. In Gipp an appeal against conviction on five charges of sexual misconduct was upheld by a majority of the High Court. The appeal focussed on the admissibility of evidence of similar instances of misconduct which were not charged. The three justices forming the majority delivered separate judgments. Gaudron J held that the evidence lacked the probative quality of similar fact evidence and was neither relevant to any other issue. Therefore it was inadmissible. Although she accepted that such evidence might in other situations be relevant to an issue at trial and could therefore be admissible, her Honour found that such relevance had not been demonstrated. Kirby J doubted that the probative value of the evidence exceeded its prejudicial effect, but, on the assumption it did, and that it was admitted as “tendency evidence”, the failure to warn the jury as to misuse left open the possibility that the jury had used the evidence as a link in the chain of their reasoning, whilst not satisfied beyond reasonable doubt of that link. It is implicit, I think, in his Honour’s reasoning that were the evidence admitted for purposes apart from proving a tendency and the jury warned appropriately as to use, the criminal standard would not have been applicable to the evidence. Callinan J held that the evidence was admissible as “propensity evidence” but appropriate directions concerning it had not been given.
In their joint dissenting judgment, McHugh and Hayne JJ found that the evidence was admissible other than as evidence of propensity. Without it the jury would have been ignorant of the nature of the relationship, the background to the charges and the continuing nature of the appellant’s conduct. Then, the complainant’s evidence might have seemed “unreal and unintelligible” (at 130). They specifically considered the question of the standard of proof in relation to evidence of uncharged acts not led as evidence of propensity. At trial the judge had directed the jury that they need not be satisfied beyond reasonable doubt as to the “background facts”. Their Honours held that such a direction was not incorrect, but might have been better left unsaid. They said (at 133): “It is the charge, not the surrounding facts, that must be proved beyond reasonable doubt.”
It seems to me that the reasoning of Kirby and Callinan JJ implicitly accepts the correctness of the statement in the joint judgment of McHugh and Hayne JJ, to the effect that evidence of uncharged acts led for a purpose which does not constitute them an indispensable link in reasoning to guilt, need not be proved to the criminal standard. In R v Nieterink (1999) 76 SASR 56 the Chief Justice (with whom Mullighan J agreed) undertook an analysis of Gipp and reached a similar conclusion.
That approach was followed in this Court in R v Kostaras (2002) 222 LSJS 373 and in R v Sciberras (2003) 226 LSJS 473. In the latter case Bleby J, with whom Perry and Nyland JJ agreed, held that the direction by the trial judge to the effect that the evidence of uncharged acts did not need to be proved beyond reasonable doubt before being used by the jury was correct, the evidence there having been admitted and left to the jury as being relevant to specific purposes not related to propensity reasoning.
However there are other decisions in this Court which are inconsistent with such an approach. The decision of R v R (1998) 198 LSJS 119 was delivered the day after the decision in Gipp. Not surprisingly no reference to Gipp was made. Olsson J, with whom Prior J agreed, held that the uncharged acts there under consideration which were left to the jury as relevant to background, context and relationship, needed to be proved beyond reasonable doubt before any use was made of them and that the jury should have been directed accordingly.
In an earlier case of R v Brusnahan, CCA, 5 November 1993, Judgment S4246 (unreported) what was under consideration were previous acts of violence described by the victim of both sexual and assault offences. The leading judgment was delivered by Duggan J and Bollen and Mullighan JJ concurred in it. It was held that the previous acts of violence were properly admitted as being relevant to one or more issues in the case, but that the applicable standard of proof was the criminal standard.
More recently, in R v Clifford (2004) 233 LSJS 157 the complainant had been permitted to give evidence of numerous incidents of sexual intercourse and other sexual conduct apart from the charges of procuring an act of gross indecency and unlawful sexual intercourse. Two such incidents were to some extent particularised, but the vast majority were not. The trial judge directed the jury that the evidence was relevant to a number of specific issues, but did not leave them as being evidence of propensity. Indeed he warned against using them in such a way. But he instructed the jury that before using the uncharged acts they needed to be satisfied beyond reasonable doubt that they had occurred. The appellant complained that in relation to the more generally described uncharged acts a level of satisfaction to that degree was unattainable. In this context Bleby and Sulan JJ (with whom Perry J agreed) held that whilst the acceptance of the uncharged conduct might not be an indispensable link in the jury’s chain of reasoning, it was so highly probative of guilt that the fact of the “course of conduct” having occurred, rather than the individual acts which went to comprise it, needed to be proved beyond reasonable doubt before being used by the jury: [57]. No authority for such a principle was cited.
In my respectful opinion cases which attribute to evidence of this type a particular status such that it is said to require proof beyond reasonable doubt are not consonant with principle and are, in addition, inconsistent with Nieterink and the joint judgment in Gipp.
Furthermore, to impose such a threshold requirement arguably introduces an element of circularity. Edwards v R (1993) 178 CLR 193 was a case concerned with a lie left to the jury as corroboration. In response to a suggestion that circularity is involved in the requirement that such a lie must spring from a consciousness of guilt, the majority of Deane, Dawson and Gaudron JJ rejected the suggestion that any standard of proof must be applied by the jury to that evidence. Their Honours said (at 210):
But ordinarily a lie will form part of the body of evidence to be considered by the jury in reaching their conclusion according to the required standard of proof. The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt. They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt.
I consider that the same approach is applicable to evaluation of uncharged acts and that the jury should not be told that any particular standard of proof applies to such evidence.
Another example of a body of evidence which does not attract such a threshold requirement is evidence of recent complaint. Where such evidence is received the jury is directed as to its proper use. But there is no requirement to tell the jury that they may not act upon it unless satisfied to any particular standard that the complaint was made. It is unnecessary to provide further examples. While it is commonplace to advise juries as to permissible and impermissible use of various classes of evidence, it is exceptional to apply a standard of proof to an item of evidence.
It is sometimes said in justification of a requirement that the criminal standard be met that evidence of uncharged acts is peculiarly prejudicial. It is not impossible to think of a case where that might be so. For example, if an accused were charged with one count of indecent assault and it was sought to lead against him numerous instances of unlawful sexual intercourse of various types upon the same victim, then such an assertion might be made. Those circumstances might justify exclusion of the uncharged acts as being more prejudicial than probative, but it would not justify application to them of a different standard of proof. But in a case such as the present where the appellant faced some nine counts of specific and extensive sexual conduct occurring over about four years and where the uncharged acts were neither specifically identified nor detailed, it seems to me that the prejudicial effect associated with them pales. In addition it should be remembered that in this context prejudice can only accrue upon acceptance of the evidence. And it is hard to see that a jury would approach the task of determining the complainant’s credit in a piecemeal manner. In any event there is no reason to believe that any prejudicial effect arising other than via the probative value of the evidence could not be cured by direction.
I do not think that the decision in R v FJB [1999] 2 VR 425, which was relied on by the appellant’s counsel, is of any assistance in the context of this discussion and the appellant’s trial. There the acts referred to as “uncharged” occurred on the very same occasion as and, indeed, punctuated the acts which were charged. It was in that sense that they were said to be inextricably intertwined with the charges. Although significant acts in themselves, they were not the subject of charges in an earlier indictment, and any later attempt to add them would have been met with a time-based statutory bar because of the regime in Victoria.
As far as I am aware, there has not been an appeal in this jurisdiction focussing on a claim such as was there made that particular directions are called for as to proof of and use of those acts of an accused person forming part of one occasion of criminal conduct, which occasion is represented on the Information by other charges.
But it seems to me that built into the rationale for requiring that any uncharged acts (either on an occasion giving rise to charges or otherwise) be proved beyond reasonable doubt is a rather unrealistic notion of the way in which a jury (or anyone else) would be inclined to evaluate a complainant’s evidence. Leaving aside for the moment a situation such as Ball, it is almost inconceivable that a jury would be naturally inclined to first make a decision about a complainant’s credibility in relation to the uncharged acts (which will usually be of a general nature) and then carry that decision into its deliberations about the charges. On the contrary, the sensible and natural approach would be to examine all of the victim’s evidence touching all topics and to draw such conclusions as are warranted about his or her credibility, which would then be used in evaluating whether the charges had been proved.

It is possible to conceive of a case in which proof offered in respect of an uncharged act might be so strong that the jury could use it as a touchstone for the complainant’s credibility. The incident might, for example, have been observed by two compelling and independent witnesses. It might be argued that such an incident could be used by the jury as a key to the complainant’s truthfulness and reliability. Even there I have doubts that proof beyond reasonable doubt of that uncharged incident should be required, because unlike in Ball, the uncharged act would not be an essential part of the evidence making up the case to answer. It would not in truth be an indispensable link in the chain of reasoning. Some jurors at least could take the view that the case was proved without reference to the uncharged act. In my view, it is undesirable to labour juries with unnecessary directions about what are in the end no more than items of evidence. It is particularly undesirable where it can have the effect of dividing the jury corpus, in the sense that some jurors could choose to discard or bypass such an item of evidence, while others must grapple with the question of whether the evidence is proved beyond reasonable doubt, as a prerequisite to making use of it. The latter group might justly wonder about their entitlement to take into account on that question any other evidence before them, such as the charged acts. The jury’s task would become needlessly complicated.
In fact, in this jurisdiction at least, it is most unlikely that in the future there will be cases of sexual charges where proof of an uncharged act upon a complainant is more cogent than that of the charges themselves. That is because there is now no time limit in relation to the charging of offences of the type under consideration. However, in point of principle, in my view, only in a case such as Ball where the uncharged act is a necessary part of the case to answer, or to put it in another way, is an indispensable link in the chain of reasoning to guilt, is there justification for instructing the jury that proof beyond reasonable doubt of an uncharged act is required.
Counsel for the appellant criticised the failure of the trial judge to give the jury what is often referred to as a “propensity warning”, that is that they should not reason from any adverse finding in respect of the uncharged acts that the accused was the kind of person to have committed the charged offences.
I consider that in this case such a warning would have been undesirable. For one thing it would have suggested to the jury that the evidence of the uncharged acts could properly be considered in isolation from the main body of the complainant’s evidence – in effect as a prelude to examination of the charges – which process would only detract from the appropriate focus on the question of whether the charges were proved. It could also suggest that the evidence of the uncharged acts was in such a state that it could found such a decision, whereas it was not. Furthermore, where the jury are told to consider each count separately, as occurred in this case, a propensity warning is often superfluous: KRMv R (2001) 206 CLR 221 per McHugh J at [34]-[40]; per Gummow and Callinan JJ at [71]-[72]; per Hayne J at [131]-[133]; per Kirby J (contra) at [117]-[121]. Sometimes a propensity warning is counter-productive to the accused’s interests. (See McHugh J at [37].) I consider that this was such a case. For all these reasons the appellant’s complaint is not made out.
As the Chief Justice observes, the learned trial judge did give a propensity direction with respect to the pornography evidence which, having regard to the different considerations it raised, was appropriate. A separate complaint was made about that direction and indeed as to the admissibility of that evidence. I agree with the Chief Justice that the suggested analogy to the threshold test suggested in Hoch v The Queen (1988) 165 CLR 292 is unsound and that this evidence did not call for any special direction.
I do not consider that any of the complaints in respect of directions upon the uncharged acts are justified.