SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0002

DALTON CLIFTON (a pseudonym)	Applicant	
		
v		
		
THE QUEEN	Respondent	

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JUDGE:	PRIEST, KAYE and T FORREST JJA	
WHERE HELD:	MELBOURNE	
DATE OF HEARING:	27 April 2021	
DATE OF JUDGMENT:	4 May 2021	
MEDIUM NEUTRAL CITATION:	[2021] VSCA 111	
JUDGMENT APPEALED FROM:	DPP v [Clifton] (Unreported, County Court of Victoria, Judge Murphy, 29 March 2019) (Conviction)	

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CRIMINAL LAW — Appeal — Conviction — Sexual penetration and indecent act with child under 16 — Course of conduct charges — Elements — Particulars — Whether failure to direct adequately on ‘course of conduct’ and ‘specified period’ — Leave to appeal refused — Criminal Procedure Act 2009 sch 1 cl 4A.

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APPEARANCES:	Counsel	Solicitors	
			
For the Applicant:	Ms G Connelly	Ann Valos Criminal Law Pty Ltd	
			
For the Respondent:	Ms M Mahady	Ms A Hogan, Solicitor for Public Prosecutions	

Priest JA
KAYE JA
T FORREST JA:
Introduction
1	Following a trial, on 29 March 2019 a jury empanelled in the County Court found the applicant guilty of sexual penetration of a child under 16 years (charge 1); indecent act with a child under 16 years (charges 2 and 3, both being course of conduct charges); and common assault (charge 6).  The jury acquitted him of three further charges of committing an indecent act with or in the presence of a child under 16 (charges 4, 5 and 7).
2	The applicant seeks leave to appeal against conviction on two grounds:
1.	A substantial miscarriage of justice was occasioned by the jury being permitted to rely on the conduct constituting charge 1 as an incident forming part of the course of conduct alleged in charge 3.
2.	A substantial miscarriage of justice was occasioned by the jury being misinformed and/or inadequately directed as to the requirements for finding of a course of conduct over the period specified in the indictment.
Particulars:
(a) 	The prosecutor incorrectly told the jury that to find the applicant guilty of charge 2 or 3 the prosecution only had to prove that incident happened more than once; and/or
(b) 	The trial judge, in his charge, repeated the prosecutor’s incorrect submission, incorporated it into his directions and failed to tell the jury it was wrong; and/or
(c) 	The trial judge told the jury that the legislature introduced ‘course of conduct’ charges to address the circumstance of child complainants not remembering specifically when events occurred; and/or
(d) 	The jury was directed it could base its verdicts on incidents it may have found to be outside the charge period.
3	For the reasons that follow, leave to appeal must be refused.
The prosecution case
4	In order to understand the issues raised by both the proposed grounds of appeal, it is necessary to provide a brief summary of the prosecution case.
5	At the times specified in the indictment, the complainant, ‘EMB’, was aged 12 or 13 years, and the applicant was 52 or 53.  The applicant and EMB’s mother, ‘RB’, were in a de facto relationship.  They lived in the applicant’s house in a central Victorian city, together with EMB and RB’s two younger daughters.  The applicant’s daughter, ‘AF’, sometimes stayed at the house, as did a friend of RB’s, ‘SK’, and her own two daughters.
6	EMB’s allegations against the applicant were contained in two VARE interviews with police, conducted on 17 November 2015 (‘first VARE’) and 16 October 2017 (‘second VARE’) respectively.
7	Charge 1 on the indictment alleged sexual penetration of the complainant, EMB, a child under 16, on an unknown date between 1 February and 31 October 2013.  
8	Each of charges 2 and 3 alleged an indecent act with or in the presence of EMB, and embraced the period between 1 February 2013 and 30 March 2014 (charge 2), and 1 February and 31 October 2013 (charge 3).  As we have indicated, both charges 2 and 3 were particularised as course of conduct charges, respectively alleging that the applicant touched EMB’s breasts and rubbed her vagina.
Charge 1:  Sexual penetration of a child under 16
9	In her first VARE, EMB described the events that were the foundation of charge 1.  
10	EMB said that ‘the first time’ she remembered the applicant doing something to her that she ‘didn’t like’, she had woken up on the couch at the applicant’s house and he was ‘fingering’ her, adding that ‘it just went on from there’.  She told police:  ‘I fell asleep watching TV and I woke up and he was sitting there just, like, playing with, like, down there.  And it was, like, really uncomfortable and it hurt a lot’.  Her ‘two little sisters’ were asleep in the spare bedroom.  EMB said:
I said - he’s like, ‘Oh, hey,’ I’m like, ‘Can you stop?  That’s hurting, I wanna go back to sleep.’  He’s like, ‘But it’s fun’.  And I was, like, just, like, trying to push his hand away and he – yeah, he wouldn’t stop so I got up and I moved. … [His hand] would, like, start at, like, the top of my vagina and then just, like, slowly work down and then it would slowly work back up again, then back down.  … [His hand went] In my vagina and my breasts and that’s it.  … The first thing that he did to me was – I think it was him kissing me and then it started with the touching and feeling.
11	We pause to note that, although charge 1 as particularised alleged that the applicant ‘introduced his fingers into the vagina of [EMB]’, the complainant’s description of the relevant events in the first interview included that the applicant was ‘fingering’ her when she awoke, and that his ‘hand’ went ‘in’ her vagina.
Charges 2 and 3:  Indecent act with a child under 16
12	Charges 2 and 3 were based in the following question and answer in the first VARE:
Q	O.K. Tell me how many times you think he touched you as you’ve described.  You’ve mentioned the vagina and on the breasts.
A 	Like, it happened frequently as in every week, like, four or five times a week.
13	The written Summary of Prosecution Opening filed pre-trial stated that charges 2 and 3 ‘incorporate the touching of the breasts’ and ‘the rubbing of the vagina’ as described above at [10], and also the ‘touching of the breasts’ referred to below at [18] and [19].
Charge 4 [Not guilty]:  Indecent act with a child under 16
14	In her second VARE, EMB said there was an occasion when she was at home from school sick with laryngitis.  The applicant showed her ‘gay porn’ on a DVD player.  This alleged event was the foundation of charge 4.
Charge 5 [Not guilty]:  Indecent act with a child under 16
15	Charge 5 was based on the following alleged conduct described in EMB’s first VARE.
16	On an occasion during 2013 or 2014, EMB was asleep on a couch in the lounge room by herself, wearing a purple butterfly pyjama top and pants.  She woke up to find that the applicant had pulled her top up and her pants down — so that her breasts and underwear were exposed — and was taking a photograph of her with a camera.  EMB said that she pulled her pants back up and her top down, put a blanket over her head and went back to sleep.  
17	During their investigation, police found photographs of EMB on the applicant’s computer.  She was shown to be asleep on the couch wearing a purple butterfly top, but her underwear and breasts were not exposed.
Charge 6:  Common assault
18	Charge 6 related to an occasion when the applicant had been in the kitchen making food whilst EMB was in another room on the computer.  In her second VARE, EMB said that the applicant came over and started to grope her by grabbing her breasts (part of charge 2, course of conduct charge, indecent act with a child under 16), and running his hands up and down her legs.  She told him to stop or she would tell her mother.  The applicant then slapped the right side of her face, leaving a red mark (charge 6).
Charge 7 [Not guilty]:  Indecent act with a child under 16
19	In her first VARE, EMB said that on an occasion in February or March 2014, at about 3.00 am, she woke to find the applicant on her bed.  His pants were pulled down and he was moving his hand up and down his erect penis (charge 7, indecent act with or in the presence of a child under 16), and he was also running his hands up and down her legs.  The applicant also touched her breasts (part of charge 2, course of conduct charge, indecent act with a child under 16).  EMB saw the applicant ejaculate.  This incident took place about two or three days before EMB, her mother and sisters moved out of the applicant’s house, and was the last occasion that the applicant engaged in any sexual activity with EMB.
Investigation
20	On 15 November 2015, EMB made a complaint to a school friend, which led to the first interview (which relates to charges 1, 2, 3, 5 and 7).  Around August 2016, she made a complaint to another friend, which led to the second interview (relating to charges 4 and 6).
21	The applicant was arrested on 22 February 2016, and denied the offending when interviewed.  At trial, the applicant’s ‘defence’ was a denial that any sexual impropriety had occurred.
Course of conduct charges
22	Ordinarily, the inclusion of more than one offence in a charge would render the charge bad for duplicity.  By making provision for the laying of course of conduct charges in cases of sexual offences, however, the legislature has sought to overcome that problem.  
23	Hence, clause 4A of Schedule 1 of the CPA permits more than one incident of a relevant offence to be included in a single charge so long as certain conditions are met.  It provides that a course of conduct charge ‘is a charge for a relevant offence that involves more than one incident of the offence’, and that a relevant offence means ‘a sexual offence’ (or other specified offence).  Put another way, cl 4A permits a single charge to be laid for a single offence incorporating more than one incident of the same relevant offence which took place on more than one occasion over a specified period.  So far as relevant, clause 4A also provides:
4A Course of conduct charge 
… 
(2) 	More than one incident of the commission of the same relevant offence may be included in a single charge only if— 
(a) 	each incident constitutes an offence under the same provision; and 
(b) 	for a charge for a sexual offence, each incident relates to the same complainant; and 
(c)	the incidents take place on more than one occasion over a specified period; and 
(d) 	the incidents taken together amount to a course of conduct having regard to their time, place or purpose of commission and any other relevant matter. 
(3) 	More than one type of act may be alleged in the one charge to prove an element of the offence. 
... 
(6) 	To avoid doubt, a course of conduct charge is a charge of a single offence. 
... 
(8) 	The prosecution must prove beyond reasonable doubt that the incidents of an offence committed by the accused, taken together, amount to a course of conduct having regard to their time, place or purpose of commission and any other relevant matter. 
(9) 	However, to prove a course of conduct offence it is not necessary to prove an incident of the offence with the same degree of specificity as to date, time, place, circumstances or occasion as would be required if the accused were charged with an offence constituted only by that incident. 
(10) 	Without limiting subclause (9), it is not necessary to prove— 
(a) 	any particular number of incidents of the offence or the dates, times, places, circumstances or occasions of the incidents; or 
(b) 	that there were distinctive features differentiating any of the incidents; or 
(c) 	the general circumstances of any particular incident.
(11) 	Without limiting clause 1(b),[] the particulars necessary to give reasonable information as to the nature of a course of conduct charge— 
(a) 	must be determined having regard to— 
(i) 	the fact that the charge is a course of conduct charge; and 
(ii) 	the limitations contained in subclause (2); and 
(iii)	the fact that the various incidents of the offence are alleged to have occurred over a period of time; and 
(b) 	need not include particulars of any specific incident of the offence, including its date, time, place, circumstances or occasion; and 
(c) 	do not need to distinguish any specific incident of the offence from any other. 
... 
24	Clause 4A is a curious hybrid.  Although, to a significant extent, it is procedural, it also contains substantive requirements of proof.  Thus, despite the fact that cl 4A does not create a discrete offence, sub-cl (8) imposes a substantive requirement upon the prosecution to prove that incidents of a relevant offence taken together amount to a course of conduct (that substantive requirement being qualified by sub-cls (9) and (10)).  
Ground 1:  Permitting conduct constituting charge 1 as part of a course of conduct on charge 3
25	Under cover of ground 1, the applicant’s counsel submitted that there was a risk the jury impermissibly relied on the conduct constituting charge 1 to convict the applicant of charge 3.  In essence, it was contended that the prosecution failed to delineate precisely the conduct comprising charge 1.  Without such delineation, counsel submitted, it was not open to the jury to rely on the conduct as also capable of amounting to an incident of conduct comprising charge 3.  Further, so counsel submitted, the judge directed the jury that the prosecution’s case in support of charge 3 included the evidence led in support of the first occasion where the applicant ‘groped’ the complainant’s vagina and also put his finger into her, and that they could use this in proof of charge 3.
26	These submissions cannot be accepted.
27	Although the prosecutor’s oral opening to the jury was not transcribed, it was not disputed before us that it reflected the written Summary of Prosecution Opening, in which it was made clear that, although the digital penetration founding charge 1 occurred at a time proximate to the rubbing of the vagina which was part of the course of conduct for the purposes of charge 3, it was a separate and distinct activity.  Importantly, we consider that this was made clear to the jury by the judge in his charge.  
28	Thus, with respect to charge 1, the judge directed the jury that the first charge
is sexual penetration of a child under the age of 16.  Now the issue in this case, Charge 1, it is being alleged that the [applicant] inserted his finger into the complainant’s vagina.  Now, the issue in the case that in relation to Charge 1 is [d]id it happen?  It is not being put by [defence counsel] his finger did not go into her vagina or anything like that.  The issue is whether it happened or not and if you are satisfied beyond reasonable doubt you accept her evidence that it occurred, then the charge will be made out.
29	Later, the judge said:
[Charge 1, the complainant] says that particular events have occurred, namely the first event on the couch when [the applicant] came in, touched her breast, touched her vagina and then he put his finger into it.  Now, [defence counsel] says that did not happen.  You cannot be satisfied beyond reasonable doubt that it did happen but if you are satisfied beyond reasonable doubt, it will be open to you to bring in a verdict of guilty on that charge.
Now in relation to Charges 2 and 3, [the prosecutor] has explained, put to you the way the prosecution brings the case in relation to those charges.  Essentially, what the legislature has done in relation to Charges 2 and 3, they have created an offence that is designed to address a difficulty that sometimes occurs where a child complainant cannot remember with any specificity the exact date a particular event occurred.  [See] generally, as a matter of fairness to an accused person, they are entitled to know what was done and approximately when it occurred.  On such and such a date or between this time, you inserted your finger into her vagina.  That is Charge 1.  But in relation to Charges 2 and 3, the prosecution in certain cases, including indecent act, the prosecution can say we can’t say exactly when it occurred or exactly how many times it occurred, so the prosecution is entitled to make the allegation that it has occurred on more than one occasion.  So that it is a course of conduct. 
So to prove Charges 2 and 3, the prosecution has got to prove that the [applicant] committed the offence of indecent act with or in the presence of a child by way of a course of conduct and the first Charge 2 says touching the breasts of the complainant and Charge 3 is rubbing the vagina of the complainant.
So to prove that, the prosecution must prove that on more than one occasion, there were more than one incident, touching of the breast, touching of the vagina, that taken together amount to a course of conduct.  So to decide whether the prosecution have proved a course of conduct or touching of the vagina, touching the breast, considered separately.  You must consider the time, the place and the purpose of the commission of the offences.
30	From the passage extracted immediately above, it is clear that the jury can have been in no doubt that charge 1 related to the digital penetration of the complainant’s vagina — part of the ‘first event’ when the applicant ‘came in, touched [EMB’s] breast, touched her vagina and then he put his finger into it’ — and charge 2 and 3 related respectively to ‘touching the breasts of the complainant’ and ‘rubbing the vagina of the complainant’.  Moreover, the jury can have been in no doubt that for the purposes of charges 2 and 3 respectively the prosecution needed to prove there were more than one incident of touching the breast and touching of the vagina which ‘taken together amount to a course of conduct’. 
31	In light of the foregoing, it is plain that the complaint embodied in the first ground — that the jury was permitted to rely on the conduct constituting charge 1 as an incident forming part of the course of conduct alleged in charge 3 — is without substance.
Ground 2:  Inadequate directions as to the requirements for finding of a course of conduct over the period specified in the indictment.
32	In support of particulars (a), (b) and (d) of ground 2, counsel for the applicant submitted that the prosecutor repeatedly told the jury that, to find charges 2 and 3 proven, the jury only needed to be satisfied that the alleged touching occurred more than once.  That was wrong, counsel argued, since it ignored the requirement that the incidents amount to a course of conduct.  Counsel for the applicant submitted that not only did the judge not correct the prosecutor’s error, but he endorsed the prosecutor’s reasoning.  Although defence counsel did not overtly deal with the issue, counsel contended, that did not mean the requirement that there be a course of conduct was irrelevant.  Indeed, so it was submitted, in addition to putting in issue whether the alleged sexual activities occurred at all, the defence clearly placed in issue the timing of the allegations.  Counsel argued that, although the dates of charges 2 and 3 were not ‘elements’, the jury still had to be satisfied a course of conduct took place between them.  In the absence of any amendment of the indictment, incidents falling outside the particularised dates had to be treated as context or relationship evidence only.
33	We do not accept these submissions.
34	Clause 4A of Schedule 1 of the CPA contemplates that more than one incident of the commission of the same relevant offence, which takes place on more than one occasion over a specified period, may be the subject of a single charge, if the incidents taken together amount to a course of conduct.  As a matter of ordinary language, we take an ‘incident’ to be a distinct occurrence or event; and an ‘occasion’ to be a particular time marked by a certain occurrence or event.
35	In this case, the ‘incident’ for the purposes of charge 2 was the touching of the complainant’s breasts, which involved ‘the commission of the same relevant offence’ of committing an indecent act with or in the presence of a child under 16, on ‘more than one occasion’; and the ‘incident’ for the purposes of charge 3 was the rubbing of the complainant’s vagina, which involved ‘the commission of the same relevant offence’ of committing an indecent act with or in the presence of a child under 16, on ‘more than one occasion’.
36	It may be accepted that in his final address the prosecutor incorrectly told the jury that they only needed to be satisfied that the applicant touched the complainant’s breasts and rubbed her vagina more than once in order to return verdicts of guilty on charges 2 and 3.  In our view, however, any possible misconception or confusion that the prosecutor’s submissions to the jury may initially have inspired in the jury’s collective mind was unmistakably corrected by the trial judge in his directions to the jury.
37	As we have noted, the judge instructed the jury that the prosecution needed to prove that on more than one ‘occasion’, there were more than one ‘incident’ — whether touching the breast or touching of the vagina — which taken together amounted to a ‘course of conduct’.  In so doing, the judge made clear to the jury that they had to ‘consider the time, the place and the purpose of the commission of the offences’.
38	Furthermore, the judge gave the following additional directions:
So the prosecution … refer to both the period over which that these alleged events have occurred as well as the timing of them.  So the prosecution says that over that period that is alleged in the charge, between 1 February 2013 and 30 March 2014, that the [applicant] regularly touched [EMB’s] breasts.  She said three or four times a week. ... 
The prosecution says that also it also occurred in around the same place.  It was always in the same place, the house either on the couch or in the bedroom.  The incidents are alleged to have occurred in the same place.  That may be an important factor in deciding if a course of conduct has been established.  The incidents that are alleged to have occurred at different places, that does not mean the incidents taken together cannot form a course of conduct.  You must consider the place along with the time of the commission of the incidents and any other relevant matters. 
So the complainant says that it regularly happened, when she went over there, staying the night, that three to four times a week, he would grope her, touch her breast and then touch her vagina.  Both of them.  ...
[The applicant] denies it of course.  So the law says that a course of conduct can be proved by evidence from a complainant about what would normally occur without giving evidence of any particular individual incident, when I was watching television, watching a particular show or on a particular date.  The law says you can conclude from generalised evidence that the [applicant] engaged in a course of conduct. 
Further, you do not need to be satisfied of the exact number of incidents of the offending or of the circumstances of any one incident in order to find a course of conduct.  So [the prosecutor] put to you that it is relatively easy for the prosecution to prove this case.  It is designed to facilitate charges where there is a lack of specificity but it is required, they have got to prove a course of conduct and so in this case, what the prosecution are saying, look on the first occasion when he groped her breasts and her vagina, that is the first sort of occasion when he did that and he also put his finger into her but that is they can use that, the offence on the first occasion, then there were later occasions he gave evidence about where he did the same thing.  So that is more than one occasion.  That is the course of conduct and then when she gave evidence in the second VARE, she said he was groping her breasts.  She tried to resist him and then he slapped her. 
So that is another event, another occasion where the prosecution relied on saying that there is a course of conduct of touching her breasts.  That is Charge 2.  So [the prosecutor] said the prosecution has got plenty of occasions that would constitute a course of conduct and on that basis, you can be satisfied beyond reasonable doubt that the accused man has committed the offence of indecent act with a child under the age of 16 by way of touching her breast as a course of conduct and similarly with the rubbing of the vagina.
39	While the prosecutor’s submissions to the jury as to what they needed to be satisfied of before convicting on charges 2 and 3 were incorrect, the prosecutor’s error clearly was corrected by the judge’s directions.  The jury would have understood from the directions set out above that, before they could return verdicts of guilty on charge 2 or charge 3, they would need to be satisfied that an ‘incident’ of the commission of the same relevant offence — be it touching the breasts or rubbing the vagina — took place on more than one ‘occasion’ and amounted to a ‘course of conduct’.  We thus cannot accept the contention that the judge did not correct the prosecutor’s error, or the submission that the judge endorsed the prosecutor’s erroneous reasoning.
40	Out of respect for the submissions of the applicant’s counsel that the defence at trial clearly placed in issue the timing of the allegations, and that the jury needed to be satisfied that a course of conduct took place between the dates alleged, we would additionally observe that we consider the judge’s directions to have been sufficient to alert the jury to the need to find more than one incident took place on more than one occasion in the specified period before they could find that a course of conduct had been established.  As to that, the ‘specified period’ requirement was not an essential part of the course of conduct charges which needed to be proved as if an element of the offences.  As was observed in Jarvis:
In our view, there is nothing in the course of conduct provisions which suggests that the ‘specified period’ was intended to be ‘an essential part’ of the offence.  Subclause (8) makes clear what has to be proved beyond reasonable doubt, namely, that the ‘incidents’ of the offence — in this case, sexual penetration — ‘amount to a course of conduct having regard to their time, place or purpose of commission and any other relevant matter’.
Properly characterised, subcl (2) is concerned with the pleading of a course of conduct charge, not with its elements.  The express requirement of proof in subcl (8) replicates the pleading requirement in subcl (2)(d).  Notably, there is no like requirement of proof corresponding to subcl (2)(c), being the pleading requirement that ‘the incidents take place on more than one occasion over a specified period’.  Had Parliament intended that the ‘specified period’ be proved as an element of the offence, that could readily have been specified in sub-cl (8).
41	Turning to particular (c) of ground 2, counsel for the applicant impugned — correctly, we consider — the following remarks by the prosecutor in his final address:
I want to take you just through the principle of the course of conduct charge.  You understand I’ve been harping on about this and his Honour will tell you something about it and so on so with Charge 2 what the prosecution has to prove is that the [applicant] touched [the complainant’s] breasts on more than one occasion.  The rest of it follows.  There are other elements but the rest follows.
So to form a course of conduct we must prove that it happened on more than one occasion and it’s sufficient for her to say, ‘Look, I can remember one or two occasions with some particularity but I can’t remember the others, all I can say is this is what he used to do to me’, on whatever basis it is, three, four, five times a week when she was there.
That is sufficient.  It would be sufficient to support that sort of charge for her to simply say look, he used to touch my breasts.  I can’t give you any particulars because it was always the same and he did it often and the reason I’m harping on this is so that you understand just how easy it is for the prosecution to prove this.
42	The comments by the prosecutor extracted above were seriously misleading and wrong.  Quite plainly, the comments should not have been made.  They betray a lamentable misunderstanding of the nature of the onus that rests on the prosecution in this kind of case and the standard of proof required.  It should never be submitted to a jury that, by their nature, course of conduct charges are ‘easy … for the prosecution to prove’, given the potential of such submissions to erode the burden and standard of proof. 
43	Indeed, rather than course of conduct charges being ‘easy’ to prove, it might be thought that — at least in some respects — in certain circumstances proof of their commission may be more difficult than for other kinds of charge.  Hence, not only must the prosecution adopt the burden of proving the elements of a given offence — each such element needing to be proven to the criminal standard — but must additionally prove beyond reasonable doubt that more than one incident of an offence took place on more than one occasion so that, taken together, they amount to a course of conduct ‘having regard to their time, place or purpose of commission and any other relevant matter’.
44	The comments made by the prosecutor referred to should not have been made.  Given the directions given by the judge extracted above, however, they cannot have been the source of a miscarriage of justice.  The jury would have well understood the task that confronted them.
45	Ground 2 cannot be upheld.
Conclusion
46	Leave to appeal against conviction will be refused.
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