DPP v Jarvis

1 Last Wednesday (11 July 2018), a jury was empanelled in the respondent's trial in the County Court. He faces four sexual offence charges, all relating to the same complainant ('J'). Three of the four charges are 'course of conduct' charges, alleging sexual penetration of a child under 16.[2]

at various places in Victoria between the 1st day of February 1995 and the 31st day of January 1998 took part in an act of sexual penetration with [J] ...

Each charge alleges a different form of sexual penetration.

3 In his evidence-in-chief, J said that the sexual offending against him began when he was 11. On that basis, the alleged course of conduct offending had commenced in 1994 rather than in 1995. As a result, the prosecutor sought leave to amend the dates in the indictment.

4 After hearing argument, his Honour refused the application for leave to amend. In his Honour's view, on the proper construction of the course of conduct provisions in the Criminal Procedure Act 2009[3] ('CPA') the period specified in the indictment was an element of the course of conduct offence. On the prosecutor's application, his Honour then certified the matter as appropriate for an interlocutory appeal under s 295(3)(c) of the CPA.

5 The interlocutory application was brought on for hearing as a matter of urgency, so as to leave open the possibility of the trial continuing with the same jury. Having had the assistance of written and oral argument from trial counsel, we concluded that leave to appeal should be granted, the appeal allowed and the judge's ruling set aside. We made orders accordingly. In place of the judge's order, we ordered that the Crown have leave to amend the indictment to alter the commencement date of the specified period for each of charges 1 to 3. We said that we would publish reasons as soon as practicable. These are those reasons.

6 The course of conduct provisions are to be found in cl 4A of sch 1 to the CPA. That clause was inserted by amendment in 2014.[4] A 'course of conduct charge' is defined in cl 4A(1) as a 'charge for a relevant offence that involves more than one incident of the offence'.

(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.

...

(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.[5]

8 In his ruling, the judge set out some of these provisions and continued as follows:

In other words [sub-cl 9] takes away or certainly reduces the degree of specificity to which an accused person is entitled when faced with a single charge. The use of the word 'specified period' [in sub-cl 2(c)] would indicate to me fairly clearly that that is something of a counterbalance to the difficulties imposed upon an accused in facing a charge of such general description.

The Crown here says that there is no notice of alibi and it may well be that you could not have a notice of alibi where you have got charges where there is no date, no time frame other than that generalised one of each specific incident. And it seems to me that the expression 'specified period' is done with the purpose of containment of the charge which can be brought against the complainant. In this situation having seen the statement of the accused I am certainly not going to argue with experienced counsel about what instructions may or may not have been taken. But it seems to me it would have been a fairly easy task for whoever drafted this indictment to take a safer view and put it six months either side as one does with other matters.

Clearly where there is a single incident often the Crown will have 'between dates' just to give the accused a degree of specificity and also an 'on or about' which also gives a degree of specificity. That means that they are not fundamental to the charge in the normal course of events and therefore do not need to be proved as long as the incident itself is sufficiently described. Here the whole course is dependent upon in my view the specified period and once offending is given which goes beyond that specified period then I quite frankly regard that as important. And my own view would be that in reality becomes an element.[6]

9 His Honour also flagged the possibility of a successful no case submission, given that the conduct described by J was not confined to the 'specified period'. Indeed, his Honour made it tolerably clear that he would, at the conclusion of the prosecution case, direct the jury to acquit on charges 1 to 3.[7] His Honour had been referred to the following passage from the Criminal Charge Book published and maintained by the Judicial College of Victoria:

There is not yet any guidance on the importance of the 'specified period', identified in accordance with cl 4A(2)(c). In cases where evidence emerges which refers to offending which may have occurred outside the specified period, the judge will need to consider whether prosecution should have leave to amend the indictment to expand the period specified, whether the jury should be directed to disregard that evidence, or, in some cases, whether this could give rise to a successful no-case submission.[8]

10 It is most unusual for the date of an alleged sexual offence - or, in this case, the period within which an offence is alleged to have occurred - to be viewed as an element of the offence rather than as a matter of particulars. Take a charge of rape, for example. The elements of the offence which must be proved are that:

(a) the accused intentionally sexually penetrated another person;

(b) the other person did not consent to the penetration; and

(c) the accused did not reasonably believe that the other person had consented to the penetration.[9]

to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge.[10]

In the usual case, the particulars of a charge of rape will identify the date and location of the alleged offence. Alternatively, the particulars may take the familiar 'between dates' form.[11]

12 As the South Australian Court of Criminal Appeal said in R v H:

Dates in particulars of a charge are not to regarded as an element of the offence or even as a material matter unless it is an essential part of the offence ... Examples where that could be the case are where the age of the alleged victim is an essential element of the charge or, in former times, where the one year and one day rule applied in cases of homicide.[12]

13 Nor is it unusual for the evidence at trial to depart in some respect or another from the particulars. The usual course is for the particulars to be amended to conform with the evidence as given and, if necessary, to grant the accused an adjournment to address the amended particulars.[13] Counsel for the respondent readily conceded that, if these were 'between dates' charges, a grant of leave to amend would have been unremarkable.

14 There may, of course, be cases where the specification of the day, although not an element of the offence, is 'material to the integrity of the criminal process'.[14] This may be true, for example, where the accused has given notice of an alibi defence with respect to the alleged date(s). In the present case, however, no such notice has been given.

15 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. Sub-clause (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'.

16 Properly characterised, sub-cl (2) is concerned with the pleading of a course of conduct charge, not with its elements.[15] The express requirement of proof in sub-cl (8) replicates the pleading requirement in sub-cl (2)(d). Notably, there is no like requirement of proof corresponding to sub-cl (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).

17 As noted earlier, counsel for the respondent conceded that, if this were a case involving 'between dates' particulars, the Crown's application to amend the particulars would have been granted, effectively as a matter of course. His Honour made the same point in the course of argument with counsel, and in the ruling. Asked why the legislature would have taken the unusual step of making the period of offending an element of this offence, counsel relied on his Honour's proposition that the requirement for specificity was 'something of a counterbalance' to the difficulties likely to be faced where an accused was charged with a 'course of conduct' offence.

18 We disagree. In our view, the legislative context points to the opposite conclusion. As his Honour acknowledged, the enactment of the course of conduct provisions reflected the legislature's recognition of the difficulty for a complainant, giving evidence of persistent sexual offending, to recall dates and places - or duration - with any precision. As this Court said in McCray (a pseudonym) v The Queen:

The purpose of introducing the 'course of conduct' offence was to permit the charging of more than one incident of the offence in circumstances where it might be difficult for a complainant to distinguish one act of abuse from another, given the repeated nature of the offending. As can be seen from the provisions of clause 4A ... the usual evidentiary strictures have been lifted. In particular, clause 4A(10)(a) makes clear that it is 'not necessary to prove any particular number of incidents of the offence'. [16]

19 Similar difficulties of recall are likely to apply to matters such as the date on which the course of conduct offending commenced or ceased.[17] It is plain that the specification of the period within which the incidents are alleged to have taken place is a matter of particulars. Amendment of the particulars would, on ordinary principles, be permitted, subject to any necessity for an adjournment (or a discharge of the jury) to enable the accused to respond to the change in particulars.

20 Defence counsel gave no indication to the judge that an adjournment might be necessary if leave to amend were granted. It is common ground that there is no alibi defence. The defence position is that none of the offending took place. It is not clear to us, in those circumstances, why the amendment of the particulars would cause any prejudice. It is unnecessary for us to explore that question further. It will be a matter for the trial judge.

21 For completeness, we should refer to s 165(1) of the CPA, to which the prosecutor drew our attention. That subsection provides as follows:

The court at any time may order that an indictment be amended in any manner that the court thinks necessary, unless the required amendment cannot be made without injustice to the accused.

22 Self-evidently, the power of amendment thus conferred is very wide indeed. No distinction is drawn between amendments which go to the elements of an offence and those which go only to particulars. Subject only to the question of injustice to the accused, the power under s 165(1) would appear to extend to amendments of either kind. On that view, the judge had power under s 165(1) of the CPA to amend the indictment even on his view that the 'specified period' was an element of each course of conduct charge.

23 It follows from what we have said that what occurred in this trial provided no basis for a no case submission. Indeed, it is difficult to see how there could be any such basis, irrespective of whether his Honour granted the application for leave to amend or not.

24 If the judge's ruling stood, and leave to amend were refused, that would still leave ample evidence of the commission of the various incidents of sexual penetration said to have constituted a 'course of conduct', over a specified period. The specified period would be the period of three years chosen by the Crown, based upon the complainant's evidence at committal, and statements to police.

25 The fact that the complainant, arguably, extended the period back by some months, when he testified that he was aged 11 when the offending commenced, in no way detracts from the evidence that the various acts of sexual penetration that made up charges 1 to 3 took place within the period specified. At worst, the extension of the period might require the jury to be directed to disregard the evidence concerning these supposedly 'earlier' acts, or perhaps even require them to be discharged.[18]

26 It is inconceivable, however, that the jury would be directed to acquit the respondent on charges 1 to 3, as to which there was an abundance of evidence in support, merely because the evidence happened to include additional offences that, possibly, had taken place before the commencement of the specified period.

27 In so far as his Honour relied upon the particular passage in the Criminal Charge Book, it must be understood in context. The passage set out at [9] refers to the possibility of a successful no case submission, in circumstances such as those where evidence emerges which refers to offending which may have occurred outside the specified period. Clearly, if the new evidence indicates that the alleged offences all took place outside the specified period, then in the absence of amendment, a no case submission would have to succeed. Similarly, if there was no evidence of more than one incident having taken place within the specified period, and all other offending is said to have occurred outside that period, then absent amendment, a no case submission would succeed. That would be because there would be no course of conduct within the specified period. However, as we have said, that is not this case.

28 We conclude by saying that this application - and its prompt disposition - illustrate the interlocutory appeal system operating as it was intended to. An error which would have had a major effect on the trial has been quickly corrected and, in the process, some guidance provided for the conduct of future trials.

[1] Because this is an interlocutory proceeding, a pseudonym has been used in place of the name of the respondent and the reasons have been prepared in a form which omits identifying details.

[2] Contrary to Crimes Act 1958 s 45(1) as amended by the Crimes (Sexual Offences) Act 1991.

[4] Crimes Amendment (Sexual Offences and Other Matters) Act 2014 s 13.

[6] DPP v [Jarvis] (Unreported, County Court of Victoria, Judge Smallwood, 12 July 2018) (emphasis added).

[7] His Honour said, in the course of discussion with counsel, that 'undoubtedly' at the 'half way mark' the case would be taken away from the jury, except for charge 4 which could be tried at a later date.

[8] Judicial College of Victoria, Victorian Criminal Charge Book (at 18 November 2016) 7 Victorian Offences, 'Bench Notes: Course of Conduct Charges', [7.1.6 - 12] (emphasis added).

[9] Crimes Act 1958 s 38(1).

[10] Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, 489.

[11] See, eg, R v DWB [2008] VSCA 223; (2008) 20 VR 112, 114-15 [14].

[12] (1995) 83 A Crim R 402, 410 (citations omitted) ('H'). See also WGC v The Queen [2007] HCA 58; (2007) 233 CLR 66, 102-3 [124]-[127], 106 [136]-[137] and Ayles v The Queen [2008] HCA 6; (2008) 232 CLR 410, 434 [76] ('Ayles').

[13] H (1995) 83 A Crim R 402, 411-12.

[15] Clause 5 of schedule 1 is also directed at the form of an indictment.

[16] [2017] VSCA 340 [29] (citations omitted).

[17] See Ayles [2008] HCA 6; (2008) 232 CLR 410, 413-14 [5]-[7].

[18] Another possibility, not canvassed in the Criminal Charge Book, is that the earlier incidents, said to have taken place outside the specified period, might still be admissible as going to 'context' or 'relationship'.