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7.1.5 - Course of Conduct Charges

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Background

  1. In July 2015 course of conduct charges were introduced as a mode of charging sexual offences and certain other relevant offences.
  2. A course of conduct charge is a single charge for a single offence, which incorporates multiple incidents of the same offence committed on more than once occasion over a specified period (Criminal Procedure Act 2009 Schedule 1, clause 4A(1),(2),(6)).
  3. The ‘course of conduct charge’ is modelled on a similar charge available in the UK (Rule 14.2 of the Criminal Procedure Rules 2010 (UK)).
  4. This form of charge was introduced to deal with repeat and systematic sexual offending. As a rule of criminal procedure, it is a method of pleading a charge, rather than a discrete offence (compare Crimes Act 1958 s47A – Persistent sexual abuse of a child under 16).

    Operation of course of conduct charges

  5. Course of conduct charges are available only for ‘relevant offences’. The list of relevant offences focuses on those for which the rules of duplicity and particularisation can sometimes interfere with effective prosecution, such as repeated acts of sexual abuse and other high volume offences.
  6. A relevant offence is defined as:
  7. A single charge sheet may contain both a course of conduct charge and an alternative ordinary charge of the offence covered by the course of conduct charge (Criminal Procedure Act 2009, Schedule 1, clause 5(3)). The alleged date of commission of the alternative charge must be within the period to which the course of conduct charge relates.
  8. However, a charge-sheet or indictment must not contain both a course of conduct charge and a charge for an offence against s47A of the Crimes Act 1958 (persistent sexual abuse of a child under the age of 16) in the alternative (Criminal Procedure Act 2009, Schedule 1, clause 5(5)).
  9. The consent of the DPP is required before a charge-sheet containing a course of conduct charge is filed or signed (Criminal Procedure Act 2009 Schedule 1, clause 4A(12)).

    Requirements of course of conduct charges

  10. A course of conduct charge is only available if:
    1. each incident constitutes an offence under the same provision; and
    2. for a charge for a sexual offence, each incident relates to the same complainant; and
    3. the incidents take place on more than one occasion over a specified period; and
    4. 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 (Criminal Procedure Act 2009 Schedule 1, clause 4A(2)(a)-(d)).
  11. The requirement that the incidents take place on more than one occasion means that there must be a ‘clear separation in time or circumstances between the acts’ (Tognolini v The Queen (2011) 32 VR 104; [2011] VSCA 113).
  12. The ‘specified period’ identified under clause 4A(2)(c) is a particular and not an element (DPP v Jarvis [2018] VSCA 173).
  13. 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. A court may grant leave to amend particulars if it does not cause injustice to the accused. In most cases, where the evidence led does not match the particulars, the court will grant leave to amend the particulars (DPP v Jarvis [2018] VSCA 173 at [13]. See also Criminal Procedure Act 2008 s 165).
  14. If the court does not grant leave to amend the particulars, it will be necessary to decide whether:
  15. More than one type of act may be alleged in a course of conduct charge to prove an element of the offence, provided the offence charged remains the same. In relation to sexual offences specifically, an ‘act’ in this context includes sexual penetration as defined by s37D and sexual touching within the meaning of Subdivision (8A) (rape and sexual assault) of the Crimes Act 1958 (Criminal Procedure Act 2009 Schedule 1, clause 4A(3),(4)). The section includes the example of a course of conduct charge for a sexual offence which may allege acts of digital penetration as well as acts of penetration with an object.
  16. Course of conduct charges are designed to enable the prosecution of a series of offending where the specific details of any one instance of the offending cannot be disclosed in enough detail to prove that individual offence. Clause 4A(9) states that:

    … to prove a course of conduct charge, it is not necessary to prove an incident of the offence with the same degree of specificity as to date, time, place, circumstance or occasion as would be required if the accused were charged with an offence constituted only by that incident.

  17. Specifically, it is not necessary to prove:
    1. any particular number of incidents of the offence or the dates, times, places, circumstances or occasions of the incidents; or
    2. that there were distinctive features differentiating any of the incidents; or
    3. the general circumstances of any particular incident (Criminal Procedure Act 2009 Schedule 1, clause 4A(10)).
  18. In a prosecution for a course of conduct charge it is not necessary that the complainant’s evidence can be distilled into individual incidents or occasions. The course of conduct provisions are designed to reduce the level of specificity required by the common law. A course of conduct charge is not defective, and an accused trial is not unfair, where the prosecution leads evidence that the accused regularly committed the alleged offence over a period, even if there are no differentiating features of separate occasions (Harlow v The Queen [2018] VSCA 234 at [61]-[67]).

    Similar international schemes

  19. The Victorian ‘course of conduct’ charge is modelled on similar systems in England and New Zealand, which may provide some guidance on the operation of this new Victorian provision.
  20. In England, rule 14.2(2) of the Criminal Procedure Rules 2010 states:

    More than one incident of the commission of the offence may be included in a count if those incidents taken together amount to a course of conduct having regard to the time, place or purpose of commission.

  21. Paragraph 14A.10 - 14A.13 of the UK Criminal Practice Directions [2013] EWCA Crim 1631 provides the following guidance on the use of this device:

    The circumstances in which such a count may be appropriate include, but are not limited to, the following:

    (a) the victim on each occasion was the same, or there was no identifiable individual victim as, for example, in a case of the unlawful importation of controlled drugs or of money laundering;

    (b) the alleged incidents involved a marked degree of repetition in the method employed or in their location, or both;

    (c) the alleged incidents took place over a clearly defined period, typically (but not necessarily) no more than about a year;

    (d) in any event, the defence is such as to apply to every alleged incident without differentiation. Where what is in issue differs between different incidents, a single “multiple incidents” count will not be appropriate, though it may be appropriate to use two or more such counts according to the circumstances and to the issues raised by the defence.

    For some offences, particularly sexual offences, the penalty for the offence may have changed during the period over which the alleged incidents took place. In such a case, additional “multiple incidents” counts should be used so that each count only alleges incidents to which the same maximum penalty applies.

    In other cases, such as sexual or physical abuse, a complainant may be in a position only to give evidence of a series of similar incidents without being able to specify when or the precise circumstances in which they occurred. In these cases, a ‘multiple incidents’ count may be desirable. If on the other hand, the complainant is able to identify particular incidents of the offence by reference to a date or other specific event, but alleges that in addition there were other incidents which the complainant is unable to specify, then it may be desirable to include separate counts for the identified incidents and a ‘multiple incidents’ count or counts alleging that incidents of the same offence occurred ‘many’ times. Using a ‘multiple incidents’ count may be an appropriate alternative to using ‘specimen’ counts in some cases where repeated sexual or physical abuse is alleged. The choice of count will depend on the particular circumstances of the case and should be determined bearing in mind the implications for sentencing set out in R v Canavan; R v Kidd; R v Shaw [1998] 1 W.L.R. 604, [1998] 1 Cr. App. R. 79, [1998] 1 Cr. App. R. (S.) 243.

  22. Despite being available since 2010, there is little jurisprudence on the operation of this provision. It is, however, clear that the jury must be satisfied that the accused pursued a course of conduct. This requires proof of the accused engaging in the relevant conduct on multiple occasions. If the jury is only satisfied beyond reasonable doubt that the accused committed the offence on a single occasion, then the ‘course of conduct’ charge is not proved (see A v R [2015] EWCA Crim 177).
  23. Under the Criminal Procedure Act 2011 (NZ) section 20, the prosecution can charge a ‘representative charge’ where:
    1. multiple offences of the same type are alleged; and
    2. the offences are alleged to have been committed in similar circumstances over a period of time; and
    3. the nature and circumstances of the offences are such that the complainant cannot reasonably be expected to particularise dates or other details of the offences.
  24. In New Zealand, the prosecution should only use a representative charge where it is unable to provide the particulars necessary to identify an alleged offence at common law. The accused is entitled to have each specific allegation separately tested under the criminal process (KAW v R [2012] NZCA 520).
  25. The New Zealand Court of Appeal has provided the following guidance on when a representative charge is appropriate:
    1. if the evidence is sufficiently detailed that the prosecution can charge specific acts (without overloading the indictment), that should be done;
    2. representative charges are appropriate where there is a pattern of repeated behaviour and the complainant cannot distinguish the dates or details of the events;
    3. repetitive acts which can be distinguished from each other should be charged separately (KAW v R [2012] NZCA 520).
  26. Relevant points of distinction can include:
  27. In Victoria, the ‘course of conduct’ provisions in Criminal Procedure Act 2009 Schedule 1 do not include a requirement that the alleged offences have been committed ‘in similar circumstances’. Rather, the incidents must be connected by the time, place or purpose of their commission, and any other relevant matter, such that they amount to a course of conduct (clause 4A(2)(d)). It may be possible to distinguish different incidents from each other, for example, because they happened at different locations, but nevertheless find they formed a course of conduct owing to the time or purpose of their commission.
  28. Judges will need to determine whether the principles which have developed in the UK and New Zealand also apply in relation to the Victorian provisions.

    Proving a ‘course of conduct’

  29. The prosecution must prove that the incidents of the accused’s conduct, taken together, amount to a course of conduct having regard to their time, place or purpose and any other relevant matter (Criminal Procedure Act 2009 Schedule 1, clause 4A(2)(d) and (8)).
  30. A course of conduct charge conceives the offence as a single charge of a general course of conduct rather than as a number of individual acts. This may mean that a course of conduct can be proved by generalised evidence of multiple occasions, such as evidence in the form of what would typically or routinely occur. In such cases, the jury may be able to find a course of conduct without being satisfied of the details of any individual occasion (Criminal Law Review, Review of Sexual Offences, Consultation Paper (2013), Part 12).
  31. As long as the prosecution proves a course of conduct by the accused, it is not necessary to prove a particular number of incidents of the offending, distinctive features of any individual incidents or the general circumstances of any particular incident (Criminal Procedure Act 2009 Schedule 1, clause 4A(10)). The incidents of the offence may all involve the same kind of offending, in the same place, at the same time of day, or in similar circumstances, and there is no need to focus on an unusual occasion.
  32. Since neither the general circumstances nor any distinctive or unusual features of a particular occasion need to be proved, course of conduct charges attempt to circumvent the limitation of having to bring evidence to prove the occurrence of each occasion specifically (as described by McHugh J in KRM v The Queen (2001) 206 CLR 221).
  33. According to the report by the Department of Justice which led to the development of the legislation, the course of conduct charge specifically responds to the problem where the complainant describes what the accused ‘would’ do, that is, what would typically or routinely occur as part of the alleged offending (Criminal Law Review, Review of Sexual Offences, Consultation Paper (2013), Part 12, [12.2.1]). Under the general law, ‘it is not possible as a matter of law for generalised evidence of multiple occasions to supply proof beyond reasonable doubt of a specific occasion’ (see REE v R [2010] VSCA 124; R v SLJ (2010) 24 VR 372). But, it appears that evidence of a generalised course of conduct — what the accused would ordinarily do — will be sufficient to prove a course of conduct charge, if accepted by the jury beyond reasonable doubt.
  34. One other offence which requires a course of conduct is stalking (Crimes Act 1958 s21A).
  35. In relation to stalking, a course of conduct requires a pattern of conduct which evidences a continuity of purpose. This requires the conduct to occur on more than one occasion or to occur in a protracted manner on a single occasion. That mere fact that conduct occurs on more than one occasion is not enough by itself to establish a course of conduct for the purpose of stalking; there must still be a continuity of purpose (Berlyn v Brouskos (2002) 134 A Crim R 111; RR v R [2013] VSCA 147).
  36. However, in contrast to stalking, clause 4A(8) makes it clear that determining whether there is a course of conduct must take into account the time, place or purpose of commission and any other relevant matters. This suggests that it would be wrong to import the “continuity of purpose” requirement from stalking into course of conduct charges, as that would elevate purpose over the other factors identified in the Act.
  37. A course of conduct can be proven having regard to the time, place or purpose of the incidents, or any other relevant matter (Criminal Procedure Act 2009 Schedule 1, clause 4A(9)). These factors may be used to show a regularity to the offending, for example, that it happened every month, or when the complainant was left alone with the accused after school, or at a particular place over and again, or because of a regular purpose, such as sexual gratification or the exercise of power over the victim. Other relevant matters may include evidence of similarity or regularity in the accused’s method of offending (Explanatory Memorandum, Crimes Amendment (Sexual Offence and Other Matters) Bill 2014).
  38. The more occasions of offending, the more likely a course of conduct is to be found, particularly where the incidents form a regular or systematic pattern of offending. Conversely, if there are only two or three occasions of offending, the complainant is more likely to be able to remember the specific details of each incident so that they can each be charged separately and a course of conduct charge will not be necessary or appropriate (Explanatory Memorandum, Crimes Amendment (Sexual Offence and Other Matters) Bill 2014).
  39. In this way the course of conduct charge was intended to be most effective in precisely the type of situations where specific incidents of an offence can be most difficult for a complainant to provide, that is, where it involves systematic or repeated commission of the offence in question (Criminal Law Review, Review of Sexual Offences, Consultation Paper (2013), Part 12).

    Comparison to the general criminal law

  40. The concept of a course of conduct is similar to a ‘continuous’ offence, such as that of drug trafficking by, for example, continuously running a drug trafficking business (Giretti v R (1986) 24 A Crim R 112). This approach recognises the conduct as a whole, including its regularity and repetition, and allows the cumulation of separate acts if the prosecution can prove the underlying course of conduct.

    Course of conduct and unanimity

  41. The operation of the requirement of unanimity in relation to the new course of conduct charge has not yet been determined.
  42. In relation to the offence of stalking, Victorian courts have confirmed on several occasions that the jury only needs to be unanimous about the conclusion that the accused has engaged in a course of conduct and it is not necessary to be unanimous about the particular acts which make up that course of conduct (see R v Hoang (2007) 16 VR 369; Worsnop v R (2010) 28 VR 187).
  43. Similarly, New Zealand courts have held, in relation to their representative charge scheme, that the jury does not need to be unanimous about the particular transaction or event on which liability is based or the specific offences represented by the charges (Ahsin & Rameka v R [2014] NZSC 153 at [206] and footnote 117; c.f. KAW v R [2012] NZCA 520 (suppressed)).
  44. The following factors indicate that unanimity is not required as to the particular incidents making up a course of conduct:
  45. The factors listed above, along with the principles developed in relation to stalking, and the approach taken in New Zealand in relation to its representative charge scheme, indicate that, as a general rule, the jury does not need to be unanimous about the specific acts which form the course of conduct. Until there is any further authority on the matter judges should assume that no direction about unanimity is required.

Last updated: 2 October 2018

In This Section

7.1.5.1 - Charge: Course of Conduct Charges

See Also

7.1 - General Directions

7.1.1 - Voluntariness

7.1.2 - Causation

7.1.3 - Recklessness

7.1.4 - Accident