7.1.6 – Course of conduct charge[1]
7.1.6.2 – Charge
Warning!As noted in the Bench Notes, these provisions have not been subject to any appellate consideration, including the significance of the period specified on the indictment and the matters that must be considered to determine whether conduct amounts to a course of conduct. Judges should seek submissions from parties on these and other relevant matters.
Course of conduct charges
In this case, the prosecution charged NOA with committing [insert relevant offence] as a course of conduct.
I will first give you directions about [insert relevant offence] and then explain what it means, in law, to commit that offence as a course of conduct.
[Adapt and insert directions on relevant offence.]
Proof of a course of conduct charge
To prove that NOA committed NOO as a course of conduct, the prosecution must also prove that the incidents of the offending by NOA within the specified period on the indictment, taken together, amount to a course of conduct.
To decide whether this is proved, you must consider the time, place or purpose of the commission of the offences, and any other relevant matters.
[Add the following shaded section only if the prosecution rely on the time of the incidents to show a course of conduct.]
In relation to time, this may refer to both the period over which the incidents are alleged to have occurred as well as the timing of the incidents. Here, the evidence is that this conduct occurred [regularly/ refer to relevantevidence] over a period of [X days, weeks, months or years]. [Refer to relevant prosecution and defence arguments].
[Add the following shaded section only if the prosecution rely on the place of the incidents to show a course of conduct.]
In relation to place, if 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. However, if the incidents are alleged to have occurred at different places, that does not mean that the incidents taken together cannot form a course of conduct. You must consider place along with the time and purpose of the commission of the incidents and any other relevant matter. For example, you might find that if the incidents are said to have happened regularly, time will be a more important factor than the place where the incidents are alleged to have occurred. [Refer to relevant prosecution and defence evidence and arguments].
[Add the following shaded section only if the prosecution rely on the purpose of offences to show a course of conduct. Note that this is unlikely to be relevant for sexual offences.]
In relation to the purpose for which the offences are said to have been committed, if the purpose is the same or similar across the incidents, that is likely to be an important factor. [Refer to relevant prosecution and defence evidence and arguments].
[Add the following shaded section if the prosecution rely on any other relevant matters to show a course of conduct.]
In relation to other relevant matters, in this case [Refer to any other relevant matters. Refer also to prosecution and defence evidence and arguments].
You must decide whether the accused engaged in conduct that constitutes NOO more than oncewithin the period specified on the indictment and whether those incidents amount to a course of conduct.
[If the timeframe specified in the indictment is in issue, add the following shaded section.]
Although you do not need to be satisfied about the actual dates that each incident relied upon occurred, you must be satisfied beyond reasonable doubt that the incidents that you find constitute the course of conduct all fall within the timeframe alleged in the indictment. The indictment specifies a timeframe of [insert specified period].
[Refer to relevant prosecution and defence evidence and argument].
[If the complainant in a sexual offence case gives evidence of what would ‘usually’ or ‘routinely’ occur, add the following shaded section.]
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 the details of any individual incident or incidents.The law says that you can conclude from such generalised evidence that NOA engaged in a course of conduct. You will remember what I said earlier about drawing conclusions.
[If there is an issue about the imprecision of the number of incidents, add the following shaded section.]
You do not need to be satisfied of the exact number of incidents of the offending, or of the circumstances of any one individual incident, in order to find a course of conduct.
[If the evidence included allegations of multiple offences committed within the one incident, add the following shaded section.]
You must be satisfied that there is more than one incident. It is not enough for the prosecution to prove that NOA committed NOO more than once during a short, isolated occasion.
[If the relevant offence comprised different types of acts on different occasions, add the following shaded section.]
As I have already told you, NOO may be committed in different ways. [Insertsummary of different acts alleged to have constituted the offence, for example, digital penetration one on occasion and by penetration with an object on another.]
As long as the accused committed NOO more than once, it does not matter that the acts making up that offence weredifferent from one incident to another.
[If there is offending relating to more than one complainant and involves a sexual offence, add the following shaded section.]
The prosecution submits you should be satisfied that NOA committed the offence of NOO with NOC on more than one occasion, and not some other person. [Refer to relevant prosecution and defence evidence and arguments].
In deciding whether prosecution has proved that NOA committed NOO as a course of conduct, you do not need to unanimously agree that specific incidents occurred. This means that seven of you might be satisfied beyond reasonable doubt that incidents one, two and three occurred and constituted a course of conduct, and five of you might be satisfied beyond reasonable doubt that there was a course of conduct due to incidents four, five and six. In that situation, you would still have a unanimous decision that there was a course of conduct.
You can each accept or reject different parts of the evidence in reaching your verdict. You must be unanimous in your verdict, whether guilty or not guilty, not in how you reach that conclusion.
Ultimately, what the prosecution must prove is that between [insert relevant dates], NOA [statement of offence, e.g. ‘intentionally took part in an act of sexual penetration with a child under 16, NOV’] as a course of conduct.
[Refer to relevant parts of the prosecution and defence case]
[If this element is not in issue, add the shaded section.]
In this case it is not disputed that, if the alleged incidents occurred, they amounted to a course of conduct by the accused. You should therefore have no difficulty finding this elementproved if you find that NOA committed the conduct alleged.
Summary
To summarise, before you can find NOA guilty ofcommitting NOO as a course of conduct, the prosecution must prove to you beyond reasonable doubt:
- [Insert elements of relevant offence]and
- Theincidents of the offending, taken together, amount to a course of conductby the accused.
If you find that any of these elements has not been proved beyond reasonable doubt, then you must find NOA not guilty of committing [insert relevant offence] as a course of conduct.
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[1] This document was last updated on 18 November 2016.