R v M, RB - [2007] SASC 207

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v M, RB
[2007] SASC 207
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Debelle and The Honourable Justice Sulan)
8 June 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Sexual offences - uncharged acts - standard of proof of uncharged acts - whether necessary for trial judge to direct jury as to standard of proof applicable to evidence of uncharged acts - whether evidence of uncharged acts circumstantial evidence - trial judge gave adequate direction as to uncharged acts - whether verdicts unsafe and unsatisfactory - verdicts open to jury on evidence as a whole.
Held: appeal dismissed.
R v IK (2004) 89 SASR 406; R v Nieterink (1999) 76 SASR 56, applied.
R v S, B [2006] SASC 319; M v The Queen (1994) 181 CLR 487; R v O, AE [2007] SASC 206; Gipp v The Queen (1998) 194 CLR 106; KRM v The Queen (2001) 206 CLR 221; Tully v The Queen (2006) 81 ALJR 391; R v Beserick (1993) 30 NSWLR 510; R v Grech [1997] 2 VR 609; R v Vonarx [1999] 3 VR 618; R v Hagarty (2004) 145 A Crim R 138; R v BJC (2005) 13 VR 407; R v FJB [1999] 2 VR 425; B v The Queen (1992) 175 CLR 599; R v Clifford (2004) 233 LSJS 157; R v B, RWK (2004) 236 LSJS 272; Shepherd v The Queen (1990) 170 CLR 573; R v Pfennig (1995) 182 CLR 461; R v Hoch (1998) 165 CLR 292; R v Garrett (1988) 50 SASR 392, considered.

R v M, RB
[2007] SASC 207
Court of Criminal Appeal: Doyle CJ, Debelle and Sulan JJ

DOYLE CJ: The appellant was tried in the District Court before a jury on an Information alleging one count of unlawful sexual intercourse with a person under 12 years of age (count 1), and seven counts of unlawful sexual intercourse. Before the jury was empanelled the appellant pleaded guilty to count 5. The trial proceeded on the other counts, the counts being referred to for convenience as counts 1 to 7.
On each count the alleged victim was R, the appellant’s step-daughter.
The jury convicted the appellant on counts 1 to 5. On count 6 the jury convicted the appellant of attempted unlawful sexual intercourse. The jury convicted the appellant on count 7.
The trial Judge admitted evidence of numerous acts of sexual misconduct on the part of the appellant and involving R. They included penile-vaginal sexual intercourse, oral sex, attempted intercourse and attempted anal intercourse. No complaint is made on appeal about the admissibility of the evidence.
The appellant complains that the trial Judge erred in not directing the jury that they could not use the evidence of the uncharged acts (as I will call them for convenience) as evidence in support of a guilty verdict unless they were satisfied beyond reasonable doubt that those acts had occurred.
The appellant also complains that the verdicts are unsafe and unsatisfactory. The submission is that the evidence relied on by the prosecution, in substance the evidence of R, suffered from such deficiencies and inadequacies that it was not open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt.
Facts
R was born in June 1974. She was 32 years of age when she gave her evidence. Her mother married the appellant in 1979. R said that her mother was often away from home for one reason or another, and while the appellant had a job for a while, he was unemployed for quite some time. This meant that R and the appellant were often in the family home when the mother was absent.
The incident that R described that was the subject of count 1 was said to have occurred in about mid 1984, when R’s mother was pregnant. The subject of count 1 was an act of penile-vaginal intercourse. R described the circumstances in some detail. A notable feature of her evidence was that she was able to give considerable detail, and to be quite specific, about the charged acts and many of the uncharged acts.
In her evidence R then described incidents the subject of the remaining counts, in some detail. The final charged act was in 1991, not long before R turned 17 years of age.
I referred at the outset to a count to which the appellant pleaded guilty. This admitted act of intercourse occurred, as I understand it, between July 1988 and April 1989. R described an incident in which the accused came into her room, pulled her knickers down, put his finger in her vagina and then inserted his penis. The door of the bedroom was open. R said that her mother came into the room, and the appellant then got off her and went into a bedroom with R’s mother. After some time, according to R, the mother came out of the bedroom and demanded of R why she had “asked for it”. R denied doing so. R said her mother threatened to take her to a home. I assume this meant a government institution. R said that her mother was angry and upset, and that R was dumbfounded. The inference from R’s evidence was that, to some extent at least, R’s mother blamed her for the incident.
R’s mother was called as a witness. She described an incident, which must have been the same one, when she found the accused lying on top of R in her bed. R’s mother said that R said “I let him do it”. She said that later the appellant apologised, and said it would not happen again, and after that normal relationships within the family were resumed.
The appellant also gave evidence about this incident, and agreed that he told R’s mother that “[R] had asked for it”. He admitted that it was wrong. He said he told R’s mother that it would never happen again, and she gave him a second chance.
I return to the narrative. The charged acts covered a period from 1984 to 1991. R left home in about early 1992.
R gave evidence also of numerous uncharged acts. She gave evidence of acts of fellatio that began when she was about seven years of age, and so must have begun in about 1981. She said there were regular acts of fellatio before the incident the subject of count 1. She described other uncharged acts that occurred during the period between count 1 and count 7, and uncharged acts that occurred after the incident the subject of count 7. These included acts of intercourse, some of them involving the penetration of R with objects held by the appellant. She described acts of attempted intercourse. Many of these incidents were described in quite specific detail. They occurred in or about the family home. R gave evidence that the appellant threatened her with harm if she told anyone about what he was doing.
R gave evidence that in 2000 she was being treated in hospital for depression and for a bi-polar disorder. R said that her general practitioner had diagnosed her condition as schizophrenia, but in fact she was treated for bi-polar disorder, depression and a post-traumatic stress disorder.
R gave evidence of a telephone call that she made while in hospital in 2000. She said that her brother organised the telephone call and the parties to it were her brother, R, her mother and her stepfather. R said that she was angry about her childhood, and wanted to confront her mother and her stepfather. R said that the appellant said that she should “forgive and forget”. R said that her mother accused her of having “asked for it”, and R said that she would have nothing to do with her mother and stepfather thereafter.
R complained to the police in April 2001. She said that when she made her first statement she did not have a clear memory of details, but she “did her homework” and was able to provide a detailed statement.
I have already mentioned that R’s mother and the appellant gave evidence. I have referred to their evidence about the admitted act of intercourse. R’s mother gave evidence about the telephone conversation, and said that R accused her of not keeping R safe. She did not remember what R said to her stepfather. R’s mother said that when she questioned her about the admitted act of intercourse, R had replied that she “wanted it”, because she did not want to be a virgin any more. R’s mother said that after R moved out of the family home they had a normal parental relationship until the phone call to which I referred, and after that she did not see R again.
The appellant gave evidence. He denied R’s evidence, apart from the admitted act of intercourse. He gave evidence of ongoing contact with R after she moved out of the family home, and of various kinds of assistance that he gave her, of the kind that one might expect within a family. As to the telephone call, he said that his wife was upset, that he could not hear what was being said, and was not sure why. After that telephone call there was no further contact with R.
Directions relating to count 6 and to count 7
Count 6 occurred when R was about 16 years of age. Her mother was out. The appellant was watching a video that showed a woman flirting with two men. The appellant told her to get on all fours on a lounge. He penetrated her vagina from behind. He then tried to penetrate her anus but could not. He then inserted his penis into her vagina again. She was in pain and asked him not to do it. When the incident finished she saw that the video depicted both men entering the woman, one in her vagina and the other anally. Count 6 was charged as an act of anal intercourse, and on this count the jury returned a verdict of attempted unlawful sexual intercourse, as one would expect in light of the evidence.
The incident the subject of count 7 arose from an incident when the appellant took her to the kitchen, and put her on the kitchen table with her legs over his shoulders. He had taken her clothes off. He attempted to put his penis into her anus, but could not. Then he had vaginal sexual intercourse. Then he penetrated her anus. She said this was extremely painful. Count 7 was based on the act of anal intercourse which occurred on this occasion.
Mr Ibbotson, counsel for the appellant, submits that the Judge should have directed the jury that they could not convict the appellant on count 6 or on count 7 unless they were satisfied beyond reasonable doubt that the accompanying uncharged acts had occurred as well. He submits that proof of the uncharged acts was part of an indispensable link in the process of finding that the charged acts occurred, if the jury were to reach that conclusion.
I do not accept the factual premise on which this submission is based. It would be surprising if the jury did not accept R’s evidence about these uncharged acts, yet convicted the appellant on count 6 and on count 7. But it was open to them to do so. Acceptance of her evidence about the uncharged acts was not a necessary step to acceptance of her evidence of the charged acts. Indeed, the jury might have found the appellant guilty of count 6 and count 7 without coming to any conclusion about these particular uncharged acts. The evidence of these particular uncharged acts was, in relation to count 6 and count 7 (as distinct from more broadly) nothing more than circumstantial evidence, admissible to enable the complete incident to be put before the jury.
There are two other answers to Mr Ibbotson’s submission. I will deal with them in the context of the next ground of appeal.
Directions relating to uncharged acts generally
Mr Ibbotson submits that the Judge should have directed the jury that they could not rely on any of R’s evidence about uncharged acts, unless they were satisfied beyond reasonable doubt that they had occurred.
In my reasons in R v O, AE [2007] SASC 206, an appeal argued shortly after the present appeal was argued, I considered in some detail the admissibility of evidence of uncharged acts and why the suggested direction is not required when the evidence of the uncharged acts is admitted as circumstantial evidence to explain aspects of the conduct of the accused and of the victim, as distinct from being admitted as similar fact evidence or as proof of a matter that is an essential step in the process of proof of guilt.
I will not repeat all that I said there. The following paragraph summarises my view in relation to the standard of proof. (I am referring to a submission identical to that put by Mr Ibbotson.):
Authority in this State does not support that submission, if the uncharged acts are used as circumstantial evidence, in the manner in which they were used in this case, and do not amount to an indispensable link in the chain or process of reasoning to guilt. This is a matter on which I take the law in this State to be settled by this Court’s decision in R v IK [2004] SASC 280; (2004) 89 SASR 406. I refer to my reasons at [78]-[86], to the reasons of Perry J at [126]-[132], and to the reasons of Vanstone J at [143]-[152]. Until the High Court settles the position, that decision should be followed in the interests of certainty and consistency. The decision was treated as settling the law in this State in R v S, B [2006] SASC 319 at [25], in a judgment with which the other members of the Court concurred. The decision in IK has been followed in other cases in this State.
In the present case the Judge explained carefully and clearly how the evidence of the uncharged acts could be used, and how it could not or should not be used. As to the permissible use, the Judge said, referring to the uncharged acts:
They may, or any of them may, tend to explain why [R] permitted the charged conduct to occur and did not make a complaint for a long time after then. That is to say, if you accept that that conduct occurred, it was a very lengthy course of conduct, it began at a time when she was very young, it was developed over time, says the prosecutor, and that at the particular time of the second and third counts he threatened her, on the prosecution case, and that it continued for as much as nine years. If you accept those matters, or any of them, you are entitled to consider whether they assist you in that way.
Secondly, it may explain the background against which those alleged offences, that is, the ones charged, occurred in circumstances where [R]’s evidence of the offences charged may otherwise appear not to be fully comprehensible.
Thirdly, it may help to explain why [R] might be unclear about precise dates and details of the offences charged.
The Judge warned the jury against misuse of the evidence, again in clear terms. I will not repeat what he said, but no complaint was made about his directions in this respect.
It is apparent that the evidence of the uncharged acts was left to the jury as circumstantial evidence that might help explain the conduct of the appellant and of R, and might help the jury understand their evidence better. The evidence was left on a basis that, consistently with my reasons in R v O, did not require the jury to be satisfied beyond reasonable doubt about the matters alleged, before the evidence could be used by them.
It follows that there was no need for a direction of the kind that Mr Ibbotson argued should have been given.
In any event, in directing the jury the Judge referred to them “accepting” this evidence and in summarising his approach to this evidence he said:
First, you must not make any use of the uncharged incidents unless you first accept they occurred ….
In this context I mention also that he warned the jury to scrutinise R’s evidence “with great care”, and told them that it would be “dangerous” to act on her evidence unless the jury were “completely satisfied as to its truth and accuracy”. The jury must have taken these statements as directing them that they had to be satisfied beyond reasonable doubt by the evidence of the uncharged acts.
In so directing the jury the Judge took the common sense approach that it is better not to confuse the position by introducing different standards of proof when directing the jury in relation to circumstantial evidence, as distinct from proof of the offence itself.
For those reasons I do not accept Mr Ibbotson’s submission.
The two reasons that I have given for rejecting Mr Ibbotson’s submissions apply also to the previous ground of appeal.
Unreasonable verdict
Mr Ibbotson submits that the evidence relied on by the prosecution contains discrepancies, displays inadequacies and lacks probative force, and that it was not open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt, having regard to the inadequacies of the evidence.
The submission requires the Court to examine the evidence for itself, bearing in mind when appropriate that on some issues the jury will be better placed than this Court can be to assess the evidence, and bearing in mind that the jury is entrusted with the primary responsibility of determining issues of fact: M v The Queen (1994) 181 CLR 487 at 492-493.
Mr Ibbotson points to a number of aspects of the prosecution case. The points that he makes must be taken as a whole, but for convenience I will comment on some of them as I go.
The offending conduct spanned about seven years, and the uncharged acts, combined with the offending conduct, spanned about ten years, ending in about 1991. R first complained about the appellant’s conduct to the police in 2001.
The absence of any complaint for so long is a significant fact. So is the impact of delay on the appellant’s ability to defend himself. The Judge gave clear and careful directions about that matter.
However, such delay is not uncommon in cases of this kind. Experience has shown that while delay might be a reason to doubt the evidence of R, there are also reasons why in a case of this kind no complaint might be made until a long time after the conduct complained of ceases.
Mr Ibbotson points to the conflicting evidence about the telephone conversation (referred to above) making the point that this was the first time that R made any complaint within the family, apart from the occasion of the admitted act of intercourse.
He makes the point that the prosecution case depends on R’s evidence alone. Her evidence is unsupported by any independent corroborative evidence (except for the admitted act of intercourse).
Mr Ibbotson referred to R’s history of mental illness, and to the fact that the telephone call was made while R was a patient in a mental hospital, and to the fact that her complaint was made to the police shortly after another admission to a mental hospital.
The Judge reminded the jury of these matters. I add that there is no evidence that R’s memory or reliability as a witness was affected by the state of her mental health.
R admitted in evidence that she had complained about sexual assaults on her by five uncles, by her natural father and by a family friend. R said that she had decided not to pursue these allegations, as the appellant was the main offender. The Judge reminded the jury of this evidence. This is a matter that might well have given the jury reason to pause, on the other hand it was not suggested that R’s complaints were false. The jury had nothing before them other than the fact of the complaints.
Mr Ibbotson points to evidence of an apparently amicable relationship between R and her mother and stepfather after R moved out of the family home, and after the offending conduct had ceased. This evidence is not easy to square with R’s evidence about her feelings towards her mother and stepfather.

Mr Ibbotson points to the fact that all that the appellant could do was to deny the allegations. He submits that the matters he raises cannot be answered by saying that the jury had the benefit of seeing R as a witness. He submits that they are problems that cannot be overcome by reliance upon demeanour.
Cases of this kind are difficult cases for trial judges and, I suspect, for juries. They are difficult for appellate courts.
Many such cases come before the courts. There are many cases in which the allegations involve sexual misconduct towards a girl or young woman, in a domestic setting, the alleged offender being an older male in a parental position, or having some relationship to a family member. Often the complaint is of prolonged sexual abuse. Often the case is one of word against word.
The courts are the setting in which these issues have to be resolved. It is not open to an appellate court to say that a conviction in a case of this kind cannot stand because the case raises difficulties of the kind that I have identified. The courts must and do grapple with the difficulties on a regular basis.
Experience has shown that there are people in the community who will prey on children in a domestic setting, and in the manner outlined above. Experience has shown that such persons will act in an opportunistic and surprisingly bold fashion, that victims will submit to such conduct over an extended period of time, and that victims of such conduct later experience emotional turmoil that affects their conduct and mental health.
At the same time an appellate court cannot react to a submission such as that advanced by Mr Ibbotson simply by saying that the case in question is one of a common type, and that arguments such as those advanced by Mr Ibbotson can be put aside because convictions in similar cases have been upheld. To take that approach would be to dismiss the argument in a particular case, simply because the argument and the circumstances of the particular case are similar to other cases. Each case must be examined on its merits. The court cannot, as it were, suspend disbelief on the basis that sexual abuse of the kind alleged here is commonplace, or on the basis that the courts must protect victims of alleged sexual abuse. The court must, as I have said, consider each case on the merits.
In the end one must return to the evidence, as I do, and to the criticisms made of the evidence.
The following points weigh with me. R’s evidence is not incredible. There is no inherent weakness in her evidence. It has not been shown that R is an unreliable witness, and in particular not shown that she is unreliable because of her depression or her bi-polar disorder. R gave her evidence in considerable detail. Much of her evidence concerned events that occurred at a time when she was old enough to understand fully what was happening. This is not a case of a young child whose perception of events might be affected by her immaturity. There are aspects of Mr Ibbotson’s submission that call for very careful consideration. But in the end I can find no foothold for a conclusion that it was not open to the jury to act on R’s evidence. Mr Ibbotson has identified a number of matters that called for careful consideration by the jury, and that require careful consideration by this Court. But, taking them as a whole, I am not persuaded that it was not open to the jury to accept R as a truthful and reliable witness, and to come to a conclusion beyond reasonable on the basis of her evidence.
Since preparing my reasons in this matter, and in R v O, AE [2007] SASC 206, I have read the reasons of Debelle J in this matter and in R v O, AE, and the reasons of Sulan J in this matter.
I recognise the force of the arguments that Debelle J advances to support a conclusion that when evidence of uncharged acts is admitted, and that evidence consists of allegations of conduct similar to the charged conduct, the charged and uncharged acts being intertwined, the trial Judge should direct the jury that they must be satisfied beyond reasonable doubt that the uncharged acts have occurred, before making use of them. Likewise, I recognise the force of the arguments advanced by Sulan J to support the conclusion that when a complainant gives evidence of sexual misconduct occurring over a period of time, comprising charged and uncharged acts, the jury should be directed that they can rely on that evidence, only if satisfied beyond reasonable doubt either that the acts were part of a course of conduct committed over the period in question, or that the individual acts (if sufficiently identified) occurred.
Nevertheless, I adhere to the decision that I reached in Nieterink [1999] SASC 560; (1999) 76 SASR 206, and I do so for the reasons that I gave in R v O, AE at [30] – [34]. Likewise, I adhere to the decision that I reached in R v IK [2004] SASC 280; (2004) 89 SASR 406. Nieterink has been followed and applied in this Court in a number of later cases, most recently (as far as I am aware) in R v S, B [2006] SASC 319. In that matter the High Court has granted special leave to appeal against the decision of the Full Court.
As the reasons of Debelle J and Sulan J indicate, there is a division of opinion within the Court on the question of the standard of proof required before a jury can act on evidence of uncharged acts in a case like this. But the decisions in Nieterink and in IK have not been overruled.
This is a matter on which clear guidance for trial judges is desirable.
Trial judges should continue to apply Nieterink and IK, unless the High Court overrules those decisions, or unless this Court comprised of five judges does so. As the High Court may consider the position in the near future, it is desirable for this Court to await the outcome of the appeal in the matter of R v S, B.
Conclusion
For those reasons the appeal against the convictions should be dismissed.
DEBELLE J: The central issue in this appeal raises the important question as to the standard of proof of uncharged acts in a prosecution alleging the commission of sexual offences. The appeal does not concern the admissibility of the evidence of uncharged acts which was led at the trial but the adequacy of the trial judge’s direction to the jury in respect of those acts.
It is now relatively commonplace that evidence of uncharged acts will be led in a prosecution for sexual offending against a child. In Gipp v The Queen (1998) 194 CLR 106 there was a division of opinion on the question whether evidence of uncharged acts of sexual conduct is admissible. McHugh and Hayne JJ have enjoined courts to continue to treat such evidence as admissible until the High Court decides to the contrary: KRM v The Queen (2001) 206 CLR 221 at [31] and at [134]. Since Gipp, courts in all jurisdictions have continued to admit evidence of uncharged acts. The evidence has been admitted on a variety of grounds. Those grounds include evidence of relationship, background evidence, evidence of a sexual passion by the accused towards the complainant and evidence of propensity. In Gipp at [140], Kirby J listed all of the grounds on which such evidence has been admitted. Evidence of uncharged acts is sometimes admitted to explain the circumstances in which the charged offences are alleged to have occurred so that the evidence of the charged acts does not appear to be unreal or the events unintelligible: KRM v The Queen at [134] per Hayne J; R v Nieterink (1999) 76 SASR 56 at [43].
While evidence of uncharged acts has been admitted, it has been recognised that such evidence has a real potential to cause real prejudice to an accused. It is likely to have darkened the character of the accused over and above the impact of the nature of the acts charged so he enters the witness box as a person of bad character without having put his character or the character of the complainant in issue: Tully v The Queen (2006) 81 ALJR 391 at [147] per Callinan J. Where the accused is charged with sexual offences, the evidence is often evidence of other sexual offending than that with which the accused has been charged. As a general rule, it is uncorroborated evidence of the complainant. The evidence concerns conduct which by its very nature is not witnessed by others. It is the kind of case where the evidence is essentially oath on oath. If the allegation concerns events which occurred several years before the trial, the evidence is, not infrequently, vague and imprecise. There will be little evidence of objective facts by reference to which the case against the accused might be tested. In addition, it is not uncommon for the uncharged acts to be inextricably intertwined with the charged acts. Courts have, therefore, emphasised that special care must be exercised as to the basis upon which the evidence is admitted and have stressed the need for careful directions to the jury as to the manner in which the jury should use such evidence: see, for example: Gipp at [77] per McHugh and Hayne JJ; R v Beserick (1993) 30 NSWLR 510; Nieterink at [83] to [88]; R v Grech [1997] 2 VR 609; R v Vonarx [1999] 3 VR 618, R v Hagarty (2004) 145 A Crim R 138; R v IK (2004) 89 SASR 406; R v BJC (2005) 13 VR 407.
No matter what the ground on which the evidence of uncharged acts has been admitted, the evidence has a real capacity to be regarded by the jury as propensity evidence. That is especially so when the evidence consists of a number of acts of sexual misconduct which has been admitted for the purpose of proving such matters as either the relationship between the accused and the complainant, the fact that the accused had a sexual passion for the complainant, or a course of conduct between them. In R v FJB [1999] 2 VR 425 at [14] to [15] Charles JA, with whom the other members of the Court of Criminal Appeal agreed, recognised the capacity for the evidence of uncharged acts in that case to establish propensity on the part of the accused. He also believed that there was a risk that the jury was likely to use it for that purpose regardless of any direction they might be given. In R v BJC at [37], Byrne AJA said that evidence of uncharged acts led in that case to prove the sexual attraction of the accused for the complainant was “perilously close” to the prohibited use of evidence of propensity. In Tully v The Queen at [145] to [147], Callinan J pointed to some dangers. Other dangers are noted in G Flatman QC and M Bagaric, Non-Similar Fact Propensity Evidence: Admissibility, Dangers and Jury Directions (2001) 75 ALJ 190 at 199-200. The risk of jurors treating evidence of uncharged acts as propensity evidence is a real one.
That risk is a natural consequence of the fact that the evidence of the uncharged acts will consist of evidence of other occasions on which the accused is alleged to have committed other unlawful acts of a like sexual nature. The evidence is often a catalogue of allegations of like offending. The jury is told of repeated offending often in a way which lacks particularity. In addition, the evidence of the uncharged acts will often be inextricably intertwined with a course of conduct covering the charged offences, as was the case in R v FJB at [41]. Because the evidence has the capacity to become a catalogue of allegations of like offending, it is but a very small step for the jury to conclude that the accused has engaged in like offending on the occasion of the charged acts. It is for that reason that a direction warning against propensity reasoning is given.
In R v BJC at [37] and [38] Byrne AJA identified the difficulties associated with evidence of uncharged acts and noted that the direction as to propensity evidence requires the jury to draw a subtle distinction.
37Where the evidence of uncharged acts is led in proof of sexual attraction of the accused for the complainant, it will be seen that its purpose is perilously close to the prohibited use of evidence of propensity, so that the propensity warning with respect to this evidence must be crafted in such a way so as not to make a nonsense of the direction as to its lawful use. In cases where the victim of the charged and uncharged acts is the same person, this may not be an easy distinction to make. In such a case, the essence of the logic behind the admission of the evidence in question is that the accused, being a man who lusts after the complainant, is likely to have gratified this lust, as she says he did in her evidence in support of the counts on the presentment. The jury are told that where the uncharged acts show that the accused has a sexual attraction or passion for the complainant, they might use this to conclude that her evidence, that he gratified this attraction or passion on the occasions charged, should be believed. At the same time, they are told that they may not use the evidence of uncharged acts as showing that the accused is the kind of person who was likely to have done so on the occasion charged. The point of distinction, if there be one, is indeed a subtle one. It must lie in that between general and specific propensity. The evidence is admissible, not to prove guilt of the offences charged by a general disposition to commit crime, but to show the nature of the relationship in a manner which bears directly upon the question of guilt. In short what the jury are asked to do is to infer from evidence of uncharged acts that the accused has a disposition to commit the particular crime charged.
38This difficulty has led the High Court to accept that evidence of uncharged acts is in truth propensity evidence, but propensity evidence of a particular kind whose probative value is such that it is receivable. Whether it is to be received into evidence pursuant to s 398A will depend, in addition, upon the judge’s perception of any prejudicial effect on the accused and, further, whether the judge “considers that in all the circumstances it is just to admit it despite any prejudicial effect on” the accused. Trial judges should, therefore, approach an application to lead this evidence in no merely mechanical way, but with considerable caution and with a clear understanding of the legitimate purpose for which it may be used. It is not sufficient to acknowledge that it may be useful as background or context. Where the evidence is said to provide the context for the evidence of the complainant the uncharged acts must be sufficiently close in time and circumstance to really provide that context; where it said to prove a sexual attraction it must likewise be such that this attraction is sufficiently close in time and circumstance to be probative of the act charged. Particular caution is required where, as here, it is evidence by the complainant herself in very general terms and led in a case where the only evidence of the charged offences is the uncorroborated evidence of the complainant. (Citations omitted).
Is it realistic to expect that each member of a jury, confronting issues of this kind probably for the first time, will appreciate the subtleties of the reasoning process required by a propensity warning when dealing with this evidence which is so prejudicial to an accused? For the reasons which follow, I believe that a warning against propensity reasoning is not a sufficient safeguard to prevent a miscarriage of justice in cases where the evidence of uncharged acts is a catalogue of like offending which is intertwined with the charged acts.
The decision in R v Vornax at [22] and [23] expresses a view which has been adopted in other jurisdictions as to the kind of directions which should be given warning against propensity reasoning. The court said:
22Nevertheless we believe that in a case such as the present, where evidence of criminal conduct, other than that which is charged, is being introduced into the evidence on the trial, the jury ought to be clearly told that evidence of such conduct can be used by them only if they are satisfied that it occurred and only for the limited purpose of determining whether a sexual relationship existed between the complainant and the accused, thereby enabling the evidence relied upon by the Crown in proof of the offences charged to be assessed and evaluated within a realistic contextual setting. They should be told not to reason that the accused is the kind of person likely to commit the offence charged.
23The jury should also be clearly instructed that evidence of other sexual activity does not itself prove the offences charged. It is of the utmost importance that the jury be told that the accused can be convicted on any count alleged against him on the presentment only if they are satisfied beyond reasonable doubt that the facts alleged in that count occurred. It is impermissible to convict the accused on the basis that, although the conduct so identified has not been proved to the requisite standard, some other conduct alleged by the victim has occurred: see R v Dolan (1992) 58 SASR 501 per King CJ at 503.
A critical part of that passage is that the evidence of the uncharged acts can only be used if the jury is satisfied that those acts occurred and only for the limited purpose stated in the direction. By what standard of proof should the jury determine that question?
The last sentence in the first paragraph in the above extract from R v Vornax highlights the dilemma in cases of this kind. Even if led, say, for the purpose of proving the relationship between the complainant and the accused, the evidence will be evidence of unlawful sexual conduct of a kind very similar, if not on occasions identical, to the charged conduct. It is the fact that the evidence consists of repeated allegations of like offending which causes a direction against propensity reasoning to have an air of unreality. In other kinds of cases where propensity evidence might be admitted, that evidence is unlikely to consist of evidence of repeated acts identical or very similar to the offence or offences with which the accused has been charged. While a direction to the jury that they should not reason from the uncharged acts that the accused is the kind of person likely to commit the offence charged describes the theoretical concept of the logic the jury should apply, it has an air of unreality in a trial where there has been evidence of a number of uncharged acts. As Byrne AJA said in the passage quoted above, the distinction to be drawn is subtle. How is the jury to understand and apply such a direction when it has heard evidence of many uncharged acts and the charged acts are but one aspect of the whole course of conduct?
If the evidence has established repeated acts of sexual misconduct on the part of the accused or the jury find that a sexual relationship of some kind existed between the appellant and the complainant, it is but a small step to conclude that the appellant is guilty of the charged acts. In other words, the conclusion that the uncharged acts occurred creates a very firm base for concluding that the charged acts occurred. That is especially so, where the charged and uncharged acts constitute a course of conduct with the charged acts occurring in such a way that it is not possible to differentiate them from the uncharged acts. Expressed another way, once the jury has found that a relationship existed, it becomes extremely difficult to determine that in the course of that relationship the charged act or acts did not occur.
In B v The Queen (1992) 175 CLR 599 at 610 Deane J described evidence of uncharged acts as “the key to an assessment of the relationship” between the accused and the complainant. That view has been applied since: see, for example, R v Beserick at 515. If evidence of uncharged acts provides the key to the relationship between the accused and the complainant, it is even more probative of the fact that the accused committed the charged acts. If the jury has determined that the accused has had a sexual relationship with the complainant, it is likely to conclude that the accused has committed the charged acts.

It must be acknowledged that, as a general rule, it is the charge, not the surrounding facts which must be proved beyond reasonable doubt: Gipp at [79] per McHugh and Hayne JJ. However, in some cases, a fact may be so indispensable to a finding of guilt that it must be established beyond reasonable doubt. The issue was addressed in Gipp at [79] by McHugh and Hayne JJ in these terms:
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 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.
It must be acknowledged also that proof of the uncharged acts is not an indispensable link in the process of reasoning to a finding that the accused is guilty of the charged acts. Nevertheless, it has a very compelling probative force when the uncharged acts are so intertwined with the charged acts that it is difficult to differentiate between them. A finding that the accused is guilty of the uncharged acts is, as I have said, but a short step from a finding of guilt. In that sense, the satisfaction of the uncharged acts is tantamount to a finding of guilt. Where the evidence of the uncharged acts comprises allegations of like conduct and the uncharged acts are intertwined with the charged acts and the jury is satisfied that the uncharged acts occurred, it is unrealistic for reasons already given to expect that the jury will not convict the appellant. In R v FJB at [41], Charles JA identified another aspect of the issue:
Furthermore if the jury had a reasonable doubt as to whether an uncharged but contemporaneous act had occurred as alleged by the complainant, it is difficult to see why they should not have had similar doubts as to the whole of the complainant’s version of events.
In R v FJB it was held that the uncharged acts were inextricably intertwined with the charged acts that the jury had to be satisfied beyond reasonable doubt that the uncharged acts had occurred. I respectfully agree with that conclusion. It is for that reason that where the uncharged and charged acts are intertwined, it is necessary to direct the jury that they must be satisfied beyond reasonable doubt that the uncharged acts occurred. If that direction is not given there is a real risk of a miscarriage of justice. Unless the accused is able to establish that he was absent from the place where the charged or uncharged conduct was alleged to have occurred or was able positively to demonstrate significant flaws in the evidence of the complainant, the accused had little protection against a baseless allegation except proof beyond reasonable doubt.
If one were to use Wigmore’s metaphor of strands in a cable rather than links in a chain, a finding that the accused has engaged in a number of sexual acts with the complainant is a finding which has the effect of providing a number of very large strands for the cable. However, metaphors can be misleading or obscure issues. The important fact is that a finding that the uncharged acts occurred or, say, that a sexual relationship existed is a very significant step towards finding the guilt of the accused, if not tantamount to a finding of guilt. It is for that reason, that the jury must be satisfied beyond reasonable doubt of those facts.
A Division of Opinion
There is a division of opinion in this court on the standard of proof for uncharged acts. In R v Nieterink Doyle CJ emphasised the care which must be taken whether to admit such evidence and the need to identify the proper ground for admitting it but questioned whether the criminal standard applied to prove the uncharged acts. He said 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.
With respect, that view does not directly address the issue where there is evidence of repeated uncharged acts which are so intertwined with the charged acts that it is not possible realistically to differentiate between them.
In R v Clifford (2004) 233 LSJS 157 Bleby and Sulan JJ, with whom Perry J agreed, noted at [52] that evidence of uncharged acts is highly probative of guilt:
Evidence of this nature is rarely of the kind which is recognised as an indispensable link in a chain of reasoning leading to an inference of guilt. However, the very nature of the evidence is such, that if accepted, it is highly probative of guilt. It is evidence which comes from the complainant. Once the evidence is admitted, the danger that must be avoided is that the jury might use the evidence in an impermissible way.
A little later they added that the standard of proof should be proved beyond reasonable doubt. They said:
56Although the 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.
57That does not mean that the jury needs to be satisfied beyond reasonable doubt, whether 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.
Later, in R v IK, Perry J explained that his concurrence was grounded on the fact that the charged acts were so interwoven with the uncharged acts. He said at [125]:
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.
In R v IK, Doyle CJ regarded Clifford as an exceptional case and reiterated the views he had expressed earlier in Nieterink. Perry and Vanstone JJ agreed with that view, Perry J for the reasons already expressed and Vanstone J took the view there was no authority for the approach in Clifford. Doyle CJ has reiterated his view in R v O, AE [2007] SASC 206 which he has quoted in his reasons for dismissing this appeal.
The decision in R v IK did not overrule R v Clifford. Instead, a majority of the court distinguished it on its facts. In R v S, B [2006] SASC 319 at [25], it was said that it seemed to be settled authority that a jury did not have to apply the criminal onus when determining whether it was satisfied that the uncharged acts had been proved. The court did not in that case refer to R v Clifford. It is a decision which has not been overruled. There is, therefore, a division of opinion in this court. There is a clear need to resolve this difficult question: Tully v The Queen per Kirby J at [65] and Callinan J at [135] to [139]. The existence of this division of opinion establishes a need for an authoritative decision.
In one sense it might appear to be a matter of little moment, given that in Nieterink Doyle CJ said that it is desirable for reference to be made to only one standard of proof in the course of the trial judge’s direction. However, it is apparent that the approach of trial judges differs as to the strength of the direction as to the standard of proof of uncharged acts. This case is a clear example. Because a finding that the uncharged acts have occurred is such a short step from a finding of guilt on the charged acts, it is essential the trial judge clearly direct in unambiguous terms that the standard of proof is beyond reasonable doubt.
For these reasons, in a trial where evidence of uncharged acts has been adduced and that evidence consists of repeated allegations of like conduct where the charged and uncharged acts are intertwined, the trial judge should not only give a warning as to the use and misuse of propensity evidence but must also direct the jury that they must be satisfied beyond reasonable doubt that the uncharged acts have occurred.
I respectfully acknowledge the force of view of Doyle CJ expressed in R v IK at [78] that it is unwise to attempt to lay down general rules to cover all situations. In R v B, RWK (2004) 236 LSJS 272 at [54] Doyle CJ also observed that, in the circumstances of that case, a direction that each separate incident had to be established beyond reasonable doubt would have been unduly favourable to the defence. Those two observations only serve to underline the care which must be taken to determine the grounds on which the evidence of uncharged acts is admitted. If they are admitted to prove a sexual attraction of the accused for the complainant, a sexual relationship between the accused and complainant, or a course of conduct between the accused and complainant, it would be proper to direct the jury that they must be satisfied beyond reasonable doubt of the existence of that attraction or relationship or course of conduct. As Bleby and Sulan JJ noted in R v Clifford at [57], such a direction avoids the need for the jury to be satisfied beyond reasonable doubt as to each individual act alleged to have been part of a continuing course of sexual misconduct.
Notwithstanding the views I have expressed, this appeal can be determined by an application of the form of directions suggested in Nieterink which has already been quoted. According to that form of direction, the jury should be directed that they should not act upon the evidence of uncharged acts unless satisfied that those acts were proved. The use of the word “satisfied” would convey to the jury to what was required was proof beyond reasonable doubt. For the reasons which follow the trial judge did not follow the formula suggested in Nieterink.
The Direction Under Review
I turn to the trial judge’s direction in this case. This was a case where the uncharged acts were so interwoven with the charged acts that it was necessary for the jury to be satisfied beyond reasonable doubt that the evidence of the uncharged acts established that the appellant had engaged in a course of sexual misconduct over a period of years.
The trial judge directed the jury as to the use which they can make of the evidence of the uncharged acts as well as the impermissible uses of that evidence. He briefly introduced the topic of the uncharged acts and continued:
Usually in a criminal trial, evidence of other alleged crimes does not come before a jury. Here, the alleged course of sexual attraction, if you accept it, or any of it, may assist you in understanding the context in which the prosecution says the charged incidents occurred. In a sense, the more evidence you have of the interaction between [R] and the accused, the better opportunity you have to evaluate her evidence and determine to what extent, if any, you are prepared to rely on it. In that way, it can be said that the whole sequence of events throws light on the nature of the relationship which [R] claims existed between herself and the accused.
So you may consider the evidence of those uncharged incidents along with the evidence going directly to the charges in determining what, if any, weight you are prepared to place on [R]’s evidence. It may assist you in concluding that her evidence is reliable. Alternatively, it may assist the defence in showing inconsistency or unreliability or inherent improbability in her evidence, and thereby raising doubts as to her credibility with respect to any of the particular changes. These are matters for you.
They are general observations, but I want to say something a little more specific about the relevance of the uncharged acts if you accept that any of them were proved. They may, or any of them may, tend to explain why [R] permitted the charged conduct to occur and did not make a complaint for a long time after then. That is to say, if you accept that that conduct occurred, it was a very lengthy course of conduct, it began at a time when she was very young, it was developed over time, says the prosecutor, and that at the particular time of the second and third counts he threatened her, on the prosecution case, and that it continued for as much as nine years. If you accept those matters, or any of them, you are entitled to consider whether they assist you in that way.
Secondly, it may explain the background against which those alleged offences, that is, the ones charged, occurred in circumstances where [R]’s evidence of the offences charged may otherwise appear not to be fully comprehensible.
Thirdly, it may help to explain why [R] might be unclear about precise dates and details of the offences charged.
Those are the sorts of uses for this evidence of uncharged incidents which are available to you if you accept the allegations as to them or any of them. But it is important to say that they are the only ways in which you may use that evidence.
Let me therefore sum that up. First, you must not make any use of the uncharged incidents unless you first accept they occurred, and there are impermissible uses of that evidence. (Emphasis added).
It will be noticed that that the word “accept” was repeatedly used. It is not, I think, an appropriate word to use in this context. It is capable of meaning that a person is willing to believe evidence as sufficient or adequate to establish a fact: see Oxford English Dictionary. Such a belief can be reached on the balance of probabilities. The word “accept”, therefore, falls well short of stating that the jury must be satisfied beyond reasonable doubt that the evidence established the particular facts. In my view, that is how the jury would have understood its use in this part of the direction. The tenor of this part of the summing up is that proof on the balance of probabilities was sufficient.
Earlier in his direction, the judge had defined his use of the verbs “proved” and “established”. He said:
It is important for me to say to you that if during what I say to you this morning I speak of matters being proved or established to your satisfaction, or I use any other expression relating to proof, then you should understand that in every case I mean proof or satisfaction beyond reasonable doubt.
Although the trial judge stated that “any other expression relating to proof” also meant proof beyond reasonable doubt, the word “accept” does not readily denote that it is an expression relating to proof. I do not think that the jury would have recalled what was said in this paragraph when the word “accept” was used in the direction, particularly as it occurs a good deal later in the direction. That would be especially so given that in other parts of the direction the judge has used the verbs “proved” and “satisfied”. For those reasons, there was a real risk that the jury would have used a lesser standard than proof beyond reasonable doubt when considering whether the uncharged acts occurred.
I respectfully disagree with the reliance of the Chief Justice upon the trial judge’s warning to the jury to scrutinise the evidence of the complainant “with great care” and that it would be “dangerous” to act on her evidence unless the jury was “completely satisfied as to its truth and accuracy”. That direction was given in the context of a Longman warning. Notwithstanding that the warning was given immediately before the judge directed the jury as to the use they could make of the uncharged acts, it did not convey to them that they had to be satisfied beyond reasonable doubt that the uncharged acts had occurred.
For these reasons, the direction was not in the circumstances sufficient. I would allow the appeal and direct a new trial.
SULAN J: Uncharged acts in sexual cases have been considered by appellate courts throughout Australia. There continues to be uncertainty about the admissibility of evidence, the directions that a trial Judge is required to give and the standard of proof.
Over recent years, this Court has considered the topic of uncharged acts in cases of sexual misconduct. Much court time has been spent on the subject. The number of cases of unlawful sexual intercourse and indecent assault, some dating back as far as twenty five years ago, is increasing. All indications are that the trend will continue. One of the issues constantly arising is the standard of proof required in respect of sexual acts which are uncharged. That issue arises in this appeal.
The High Court has discussed the standard of proof in cases in which previous uncharged sexual misconduct is admissible, without finally resolving that question. The High Court considered both the admissibility of such evidence and the standard of proof in Gipp.[1] The appeal dealt primarily with the admissibility of the evidence. The Court considered the directions of the trial Judge. The trial Judge in Gipp directed the jury that the evidence of other sexual acts not charged had been led to show the nature of the relationship between the accused and the complainant and it would assist the jury in understanding the context of the incidents that were the subject of the charges. The trial Judge said:
There is no need for you to be satisfied beyond reasonable doubt of those background facts because they are given generally, provided that you accept the complainant’s account that it occurred, but when you come to consider any count on the indictment you must be satisfied beyond reasonable doubt that the Crown has proven an incident as alleged by the complainant on the day alleged or within the time scale which is alleged that they’re in.[2]
[1] Gipp v The Queen (1998) 194 CLR 106.
[2] Gipp v The Queen (1998) 194 CLR 106, 132.

The Court, by majority, allowed the appeal. Gaudron and Callinan JJ decided that the evidence should not have been admitted. Kirby J concluded that the trial Judge had failed to warn the jury about the dangers of how they may not use the evidence resulting in a miscarriage of justice.
McHugh and Hayne JJ in a dissenting judgment concluded that the evidence was admissible. They were of the opinion that, considered as a whole, the summing up was adequate. They said that it would have been preferable for the trial Judge to direct the jury that they were not to use any conclusion that there was a previous history of incidents to reason that the accused committed the offences charged. However, the failure to so direct did not lead to a miscarriage of justice.
In considering the standard of proof, McHugh and Hayne JJ said:
No doubt it would also have been better if his Honour had made no mention of the standard of proof when referring to the background evidence. But his Honour’s statement was not a misdirection. It is the charge, not the surrounding facts, that must be proved beyond reasonable doubt. Sometimes, a fact may be so indispensable to a finding of guilt that it is necessary to direct the jury that that finding be proved beyond reasonable doubt even though that fact is not one of the ultimate facts that constitute the offence. But, as Dawson J pointed out in Shepherd v The Queen, 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. (Footnotes omitted)[3]
[3] (1998) 194 CLR 106, 133.
Kirby J said:
The primary judge correctly charged the jury that it was not for the appellant to give a reason why the complainant should make false complaints against him. This, he pointed out, would quite often be “totally impossible” and he did not have any onus of proof in that regard. This direction was impeccable. However, his Honour’s summing up on the approach which the jury were to take in relation to the evidence about the unreported molestation going back many years was much less satisfactory. He said (emphasis added):
“There is also overall evidence of ongoing conduct by the accused over many years … That evidence of general behaviour is led to show the nature of the relationship between the complainant and the accused, rather than present a picture of isolated events from time to time. There is no need for you to be satisfied beyond reasonable doubt of those background facts because they are given generally, provided that you accept the complainant’s account that it occurred.”
Again, there was no objection by trial counsel. No relevant request for redirection was made. The passage appears in a charge which contains several reminders to the jury about the onus resting on the Crown and the jury’s need to be satisfied that the complainant’s account in respect of each incident was an honest one which they could safely rely upon. If they did not believe her in respect of any one incident, they were told that it would be dangerous for them to accept her evidence at all and they should acquit on all counts.[4]
Later he said:
Before this Court, the Crown properly conceded that the reference by the primary judge to the standard of proof relating to the evidence of prior molestation was “undesirable and should not have been made”. It was “unfortunate”. I entirely agree with these epithets. Where such facts may constitute “indispensable links in a chain of reasoning towards an inference of guilt, it may be appropriate (and would have been appropriate in this case) to warn the jury that each “link” must be proved beyond reasonable doubt.[5]
[4] (1998) 194 CLR 106, 145.
[5] (1998) 194 CLR 106, 156.
Kirby J concluded:
In the present trial it is doubtful that the probative value of the evidence of the complainant concerning alleged events outside the offences charged outweighed the substantial prejudicial effect of such evidence. However, assuming that it did, and that the evidence was therefore admissible as tendency evidence, far from giving the stringent warnings required by law at the point that the evidence was received and at the point at which the concluding instruction was given to the jury, the primary judge gave absolutely no warnings about the dangers of the use of such evidence. On the contrary, he instructed the jury that they could be satisfied on the evidence otherwise than beyond reasonable doubt. Read in context, such instruction was a most serious misdirection …[6]
[6] (1998) 194 CLR 106, 157.
Kirby J considered that, where a fact or facts constitute an indispensable link or links in a chain of reasoning towards the inference of guilt, it may be appropriate to warn the jury that each link must be proved beyond reasonable doubt. He considered that Gipp was such a case. It is not clear why Kirby J considered that the evidence of prior acts of sexual molestation and sexual abuse amounted to an indispensable link so as to require proof beyond reasonable doubt. As was pointed out by McHugh and Hayne JJ when referring to Dawson J’s judgment in Shepherd v The Queen,[7] where the evidence “consists of strands in a cable rather than links in a chain it will not be appropriate to direct the jury that the fact must be proven beyond reasonable doubt”.
[7] (1990) 170 CLR 573.
The evidence of uncharged acts in Gipp was led to show the nature of the relationship between the complainant and the appellant. In many cases in which evidence of uncharged acts is admitted, the purpose of the evidence is to explain the relationship which existed, or had developed, between a complainant and the accused. It is difficult to perceive upon what basis evidence of those acts is to be considered as an indispensable link to a finding of guilt.
Gaudron and Callinan JJ did not refer to the standard of proof.
In Tully,[8] the High Court discussed evidence of uncharged acts. The Court decided the case upon an unrelated issue. Kirby J considered that the case was not an appropriate case to consider the law or the directions appropriate to the evidence of uncharged acts because it was a case that involved peculiarities of its own. He observed:
There is no doubt that the issue of judicial directions in respect of evidence concerning uncharged acts that would constitute criminal offences of a sexual character constitutes an important question upon which there have been differences of view in the intermediate appellate courts in Australia. It would be desirable that such differences of view (which are also to some extent reflected in opinions stated in this Court) be settled authoritatively by this Court in a suitable case. Not only is there the question as to any direction the trial judge should give concerning the use that a jury may make of evidence of uncharged acts. There is also the question, presented by the judicial directions given in the appellant’s trial, as to the standard of proof (if any) that the jury should adopt in judging whether the uncharged acts have been established.[9] (Footnotes omitted)
[8] Tully v The Queen (2006) 81 ALJR 391.
[9] Tully v The Queen (2006) 81 ALJR 391, 405.
Hayne, Callinan, Heydon and Crennan JJ did not consider the question of standard of proof.
In Victoria in FJB,[10] after having considered the judgment of the High Court in Gipp, Charles JA with whom Winneke P and Buchanan JA agreed, said:
… But the various passages already quoted in the judgements 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.[11]
[10] R v F, JB [1999] 2 VR 425, 433.
[11] [1999] 2 VR 425, 433-434.
Winneke P and Buchanan JA agreed. The Court recognised the difficulty of formulating a principle in relation to the standard of proof to be applied to uncharged acts.
This Court considered the question Nieterink.[12] Doyle CJ was of the view that it is necessary to consider the purpose for which the evidence is led. On the one hand there is evidence which is led for the purpose of concluding that the accused committed the crime charged because of the objective improbability of a person other than the accused having committed the crime. That is if it is proved that the accused did the act or acts, and from that evidence no reasonable inference can be drawn other than that the accused was the person who committed the offence, then the evidence is admissible as propensity evidence: (See Pfennig[13] and Hoch.[14]) However, as Doyle CJ pointed out, there is evidence which discloses other criminal conduct which may be admitted for a purpose other than that referred to in Pfennig. For example, to rebut a suggestion of accident or to establish the relationship which existed between an accused and a deceased, or to establish a motive (see Nieterink).[15]
[12] R v Nieterink (1999) 76 SASR 56.
[13] R v Pfennig (1995) 182 CLR 461.
[14] R v Hoch (1988) 165 CLR 292.
[15] R v Nieterink (1999) 76 SASR 56.
Prior conduct has been admitted in sexual cases to establish the relationship between the accused and his victim,[16] or sexual attraction towards children.[17] As Doyle CJ observed in Nieterink,[18] evidence of uncharged acts may be led for purposes such as to understand the context in which the alleged offences occurred or to explain why a victim acted in a particular way, or to explain why an accused acted in the way alleged. The evidence may be admissible to establish that the accused introduced the complainant to relatively minor sexual conduct and then groomed the complainant to perform more explicit acts. The circumstances in which the evidence may become admissible are not closed.
[16] R v Garrett (1988) 50 SASR 392.
[17] R v Beserick (1993) 30 NSWLR 510.
[18] R v Nieterink (1999) 76 SASR 56, 63.
In Nieterink, Doyle CJ discussed the standard of proof:
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.[19]
[19] (1999) 76 SASR 56, 72-73.
Doyle CJ considered that there may be circumstances in which the evidence might be regarded as forming an indispensable link in the reasoning to guilt. His comments were of a general nature. It is difficult to formulate a principle to be applied to determine the circumstances in which evidence amounts to an indispensable link.
In Clifford,[20] the evidence of the complainant was that over a period of about eleven years, commencing when she was aged seven, the appellant committed various acts of sexual indecency, including two charged acts. The first charged act of gross indecency occurred between 9 September 1989 and 8 September 1991. The second charged act of unlawful sexual intercourse occurred between 1 January 1996 and 31 December 1998. The appellant commenced sexual contact with the complainant by touching her, showing her his penis and having her touch it. That conduct continued over a number of years. As the complainant grew older, the appellant commenced to touch her breasts and touch her on the outside of her clothing in the area of her vagina. He eventually touched her inside her clothing on her breasts and vagina. He rubbed her vagina with his fingers. He placed his fingers in her vagina until eventually a full act of penile-vaginal intercourse occurred. The complainant could not be specific about any particular occasion when this activity occurred, other than the two occasions which were the subject of the charges.
[20] R v Clifford (2004) 233 LSJS 157.
The Court considered the standard of proof. Bleby and Sulan JJ observed:
In most cases when sexual abuse involves the complainant and the accused over a long period of time and on many occasions, it will not be possible for a complainant to recall how many occasions there were, the detail of what occurred on each occasion and when and in what circumstances each occasion occurred. He or she will, however, be able to speak of a course of conduct and to describe the features of that conduct and whether it varied from time to time or over time. It is the fact of the course of conduct having occurred, rather than the detail of each specific act constituting the course of conduct, which is relevant.
Although evidence of the conduct may not be an indispensable link to the finding of guilt, it is of such weight in the case of continuing sexual misconduct that proof of it beyond reasonable doubt should be required. The evidence will usually relate to conduct implicating the accused in other criminal conduct, other than that with which he is charged. It will usually relate to conduct similar in nature to that the subject of the charge or charges. Therefore, the criminal standard of proof beyond reasonable doubt should apply to proof of the conduct alleged. An added reason for adopting the criminal standard is that adverted to by Doyle CJ in Nieterink, that to direct the jury by reference to different standards of proof in respect of such conduct can be confusing and counterproductive.
That does not mean that the jury needs to be satisfied beyond reasonable doubt, where a course of conduct is alleged, of each individual act which, together with other acts, establishes the continuing course of sexual misconduct. The jury must be satisfied beyond reasonable doubt that the course of conduct occurred.
The jury should be directed that if they are satisfied beyond reasonable doubt that the conduct or course of conduct occurred, they should then consider whether the evidence achieves the purpose or purposes for which it was led. If the evidence in their mind does not achieve that purpose or any of those purposes, then they must disregard the evidence and use it for no other purpose.
In directing the jury that they could not act upon the evidence of uncharged acts unless and until they were satisfied beyond reasonable doubt of its truth it was unnecessary for the trial judge to refer to the uncharged acts “or any of them”, when what was really being referred to in this case was not particular uncharged acts, but a course of conduct, albeit changing over time. The jury did not need to find each uncharged act on each occasion proved beyond reasonable doubt as if the appellant was charged with an offence in relation to that act. What the trial judge said did not amount to a misdirection. If anything, his direction was favourable to the appellant.[21]
[21] R v Clifford (2004) 233 LJSJ 157, 169-170.
Clifford was considered in IK.[22]Doyle CJ said:
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 different 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.[23]
…
[Clifford] was an exceptional case. Having regard to the difficulty of particularising the offending conduct it may be 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.[24]
[22] R v IK (2004) 89 SASR 406.
[23] R v IK (2004) 89 SASR 406, 419-420.
[24] R v IK (2004) 89 SASR 406, 423.
Perry J said:
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, 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.
The court held in Clifford (at [39]) that proof of the course of conduct, amongst other things “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.
…
While the distinction between the circumstances in which it will be proper to direct the jury to apply a different standard 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.[25] (Footnotes omitted)
[25] R v IK (2004) 89 SASR 406, 429-430.

Vanstone J said:
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 conducting 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 while 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 (at [57]). No authority for such a principle was cited.[26]
[26] R v IK (2004) 89 SASR 406, 434.
In Nieterink and IK, the Court has indicated how trial judges should direct a jury on the standard of proof when considering uncharged acts. The position is far from settled. As observed, members of the court have expressed divergent views, having regard to the different factual circumstances which arise. Having regard to the views that have been expressed since the decision in Nieterink, I remain of the view that if a complainant is permitted to give evidence of sexual misconduct occurring over a period of time, and the complainant is unable to identify the individual acts with any particularity, then the jury should be directed that they can only rely on the evidence if the jury is satisfied beyond reasonable doubt that the acts were part of a course of conduct committed over that period.
In cases in which a complainant gives evidence of uncharged acts and the particular uncharged acts are sufficiently identified, then the jury should be directed that they can only rely upon an act if they are satisfied beyond reasonable doubt that such act occurred.
Cases of sexual misconduct in which acts, other than those charged are admissible, form a special category. It is both illogical and inconsistent to require proof of charged acts beyond reasonable doubt and not require the same standard in respect of uncharged acts. The following example illustrates the anomaly that may occur if the standard of proof were different. Assume that over a period of two years, there were twenty acts of unlawful sexual intercourse. The DPP chooses to charge five and lead the other fifteen to establish that there existed a sexual attraction by the defendant towards the complainant, or to explain why the complainant made no complaint. The evidence is not an indispensable link in the chain of reasoning to guilt. Therefore, each uncharged act would not have to be proved beyond reasonable doubt. If, on the other hand, the DPP chose to charge all twenty acts, then each would have to be proved beyond reasonable doubt.
If a complainant gives evidence of charged acts which have occurred over a period of time, and those charged acts are part of a continuing course of conduct over that time, it is confusing to direct a jury that the charged acts (which may have been chosen as samples of conduct over a period) must be proved beyond reasonable doubt, yet other acts of the same or similar character which are not specifically charged need only be proved on the balance of probabilities.
In cases where a complainant cannot be specific about the uncharged acts, I remain of the view that it is appropriate to direct the jury in accordance with the decision in Clifford.
In summary, the vexed question of the correct direction a trial judge should give in respect of uncharged acts remains uncertain. The circumstances of each case will determine the direction required. It is regrettable that this may lead to confusion, uncertainty and the risk of a miscarriage of justice.
Judge’s directions
The trial Judge directed the jury in general terms that when he speaks of matters being proved or established to their satisfaction, or he uses any other expression relating to proof, then they should understand that he means proof or satisfaction beyond reasonable doubt.
Later, he directed the jury about acts which were not the subject of the charges. He said:
I want to say something to you then about the acts alleged against the accused which are not the subject of charges here.
[R] spoke of numerous alleged acts of oral sex and of penile/vaginal sexual intercourse, or attempts at it, of objects being inserted in her vagina and, on one occasion, of an attempt at penile/anal intercourse by the accused. There is also the act of penile/vaginal intercourse with her which the accused admitted to the police. None of those acts that I have mentioned are the subject of any charges before you and you must not speculate as to why that is so.
Usually in a criminal trial, evidence of other alleged crimes does not come before a jury. Here, the alleged course of sexual interaction, if you accept it, or any of it, may assist you in understanding the context in which the prosecution says the charged incidents occurred. In a sense, the more evidence you have of the interaction between [R] and the accused, the better opportunity you have to evaluate her evidence and determine to what extent, if any, you are prepared to rely on it. In that way, it can be said that the whole sequence of events throws light on the nature of the relationship which [R] claims existed between herself and the accused.
So you may consider the evidence of those uncharged incidents along with the evidence going directly to the charges in determining what, if any, weight you are prepared to place on [R]’s evidence. It may assist you in concluding that her evidence is reliable. Alternatively, it may assist the defence in showing inconsistency or unreliability or inherent improbability in her evidence, and thereby raising doubts as to her credibility with respect to any of the particular charges. These are matters for you.
They are general observation, but I want to say something a little more specific about the relevance of the uncharged acts if you accept that any of them were proved. They may, or any of them may, tend to explain why [R] permitted the charged conduct to occur and did not make a complaint for a long time after then. That is to say, if you accept that that conduct occurred, it was a very lengthy course of conduct, it began at a time when she was very young, it was developed over time, says the prosecutor, and that at the particular time of the second and third counts he threatened her, on the prosecution case, and that it continued for as much as nine years. If you accept those matters, or any of them, you are entitled to consider whether they assist you in that way.
Secondly, it may explain the background against which those alleged offences, that is, the ones charges, occurred in circumstances where [R]’s evidence of the offences charged may otherwise appear not to be fully comprehensible.
Thirdly, it may help to explain why [R] might be unclear about precise dates and details of the offences charged.
Those are the sorts of uses for this evidence of uncharged incidents which are available to you if you accept the allegations as to them or any of them. But it is important to say that they are the only ways in which you may use that evidence.
Let me therefore sum that up. First, you must not make any use of the uncharged incidents unless you first accept they occurred, and there are impermissible uses of that evidence.
The fact that allegations are made about a number of occasions of sexual misconduct or even the fact that the accused admitted one of tem to the police, does not in any sense absolve you from the task of determining whether the charges themselves, the ones on the information, are made out. It would be very wrong for you to say this, in effect: ‘We are satisfied that somewhere along the line there were other acts of sexual intercourse beyond those charged and because of that and even though we are not satisfied beyond reasonable doubt about some of the charged offences, we will nevertheless convict on them because of this other material’.[27] (highlighting is mine)
[27] Appeal Book – 83-5.
The Judge directed the jury about the relevance of uncharged acts if the jury accepted that any of them were proved. Later, he referred to allegations being made out and directed the jury that if the uncharged allegations, or some of them, were made out, this did not absolve the jury from their task of deciding whether the charged acts were made out.
Considered in their context, when the Judge referred to acts being ‘made out’ or the jury ‘accepting that they occurred’, I consider the jury would have understood that they must be satisfied that the uncharged acts must be proved beyond reasonable doubt before they can be used for any purpose, as directed by the Judge.
Although it may have been preferable for the Judge to reinforce to the jury that both charged and uncharged acts must be proved beyond reasonable doubt, I consider the directions taken as a whole would have been interpreted by the jury as requiring them to be satisfied beyond reasonable doubt, both of the charged and uncharged acts.
For these reasons, I would dismiss the appeal.