2.Set aside the order of the Court of Criminal Appeal of the Supreme Court of South Australia made on 30 September 2015 in SCCRM-15-232, and in its place order that the appeal against sentence be allowed and the sentence be set aside.
3.Remit the proceeding to the Court of Criminal Appeal of the Supreme Court of South Australia for the appellant to be resentenced in accordance with the reasons of this Court.
4.Appeal otherwise dismissed.
On appeal from the Supreme Court of South Australia
Representation
M E Shaw QC with B J Doyle for the appellant (instructed by Wallmans Lawyers)
C D Bleby SC, Solicitor-General for the State of South Australia with B Lodge for the respondent (instructed by Director of Public Prosecutions (SA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Chiro v The Queen
Criminal law – Offence of "[p]ersistent sexual exploitation of a child" – Criminal Law Consolidation Act 1935 (SA), s 50 – Where offence comprised of two or more acts of sexual exploitation separated by not less than three days - Where jury required to be unanimous (or agreed by statutory majority) as to same two or more acts of sexual exploitation - Where alleged acts of sexual exploitation ranged from kissing in circumstances of indecency to inserting penis into complainant's mouth - Where jury returned general verdict of guilty by statutory majority - Where not known which alleged acts of sexual exploitation jury agreed had been proved by prosecution - Whether conviction uncertain - Whether judge should have requested special verdict - Whether, after general verdict returned, judge should have asked questions of jury to identify acts of sexual exploitation found to be proved - Whether appellant should have been sentenced on view of facts most favourable to appellant in circumstances where factual basis of jury's verdict unknown.
Words and phrases – "acts of sexual exploitation", "actus reus", "course of conduct offence", "extended unanimity", "general verdict", "jury directions", "persistent sexual exploitation of a child", "special questions", "special verdicts".
KIEFEL CJ, KEANE AND NETTLE JJ. The principal question for decision in this appeal is whether, where an accused is tried before a judge and jury on a count of "[p]ersistent sexual exploitation of a child" contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) ("the CLCA"), the judge should request that the jury return a special verdict or, if the jury returns a general verdict of guilty of the offence, whether the judge should question the jury to identify the underlying acts of "sexual exploitation" which the jury found to be proved. For the reasons which follow, in such…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Chiro v The Queen [2017] HCA 37
Case
[2017] HCA 37
Decision Date
CaseChat Overview and Summary
In *Chiro v The Queen*, the High Court of Australia considered an appeal by the appellant, who had been convicted of persistent sexual exploitation of a child under section 50(1) of the *Criminal Law Consolidation Act 1935* (SA). The charge related to a period between 1 July 2008 and 19 November 2011, during which the appellant, a former high school teacher, allegedly engaged in various acts of sexual exploitation with a student. The prosecution particularised six categories of acts, ranging from kissing to more intimate conduct. The jury returned a general verdict of guilty by a statutory majority, but it was unclear which specific acts of sexual exploitation the jury had unanimously or by majority agreed were proven.
The central legal issue before the High Court was whether, in circumstances where an offence comprises multiple distinct acts of sexual exploitation, a judge should request a special verdict from the jury, or if a general verdict is returned, whether the judge should then question the jury to ascertain the specific acts of sexual exploitation upon which their verdict was based. The appellant argued that the uncertainty regarding the factual basis of the jury's verdict rendered his conviction uncertain and that he should have been sentenced on the most favourable factual scenario for him.
The High Court reasoned that while a judge should not typically request a special verdict for this type of offence, if a jury returns a general verdict of guilty, the judge should, unless it is otherwise apparent, request the jury to identify the specific underlying acts of sexual exploitation that they found to be proved. This is to ensure clarity regarding the factual basis of the conviction. In this case, because the judge had not ascertained which acts the jury agreed were proven, the appellant should have been sentenced on the assumption that the jury had convicted him based on the least serious acts alleged, namely kissing. The sentence imposed, which reflected the assumption that all alleged acts had been proven, was therefore considered manifestly excessive.
Consequently, the High Court allowed the appeal in part. While the appeal against conviction was dismissed, the appeal against sentence was allowed. The order of the Court of Criminal Appeal of South Australia was set aside, and the matter was remitted to that court for the appellant to be resentenced in accordance with the High Court's reasons.
Orders
Orders of the court
1. Appeal allowed in part.
2. Set aside the order of the Court of Criminal Appeal of the Supreme Court of South Australia made on 30 September 2015 in SCCRM-15-232, and in its place order that the appeal against sentence be allowed and the sentence be set aside.
3. Remit the proceeding to the Court of Criminal Appeal of the Supreme Court of South Australia for the appellant to be resentenced in accordance with the reasons of this Court.
4. Appeal otherwise dismissed.
Background
Background to the litigation
KIEFEL The principal question for decision in this appeal is whether, where an accused is tried before a judge and jury on a count of "[p]ersistent sexual exploitation of a child" contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) ("the CLCA"), the judge should request that the jury return a special verdict or, if the jury returns a general verdict of guilty of the offence, whether the judge should question the jury to identify the underlying acts of "sexual exploitation" which the jury found to be proved. For the reasons which follow, in such circumstances, a judge should not request the jury to return a special verdict but, if the jury returns a general verdict of guilty, the judge should request that the jury identify the underlying acts of sexual exploitation that were found to be proved unless it is otherwise apparent to the judge which acts of sexual exploitation the jury found to be proved.The facts The appellant was charged with an offence of persistent sexual exploitation of a child under s 50(1) of the CLCA. The period to which the charge related was 1 July 2008 to 19 November 2011. The appellant is a former high school teacher. From 2000, he taught at the middle-school campus of a high school in Adelaide. The complainant was a student in a class taught by the appellant and was also supervised by the appellant in the completion of a major project. Although the complainant moved to the senior-school campus of the high school in the latter part of the period to which the s 50(1) charge relates, she continued to attend at the middle-school campus ostensibly to obtain assistance from the appellant with respect to her Italian studies. The prosecution alleged that conduct of a sexual nature commenced in 2008, when the complainant was in Year 9. The conduct was alleged to have commenced with kissing, first with a "quick peck on the lips" and subsequently a "longer, open-mouthed kiss". The conduct was said to have become more intimate. It was alleged to have progressed to a point where the appellant digitally penetrated the complainant and she masturbated and fellated him. The appellant was initially charged with four separate offences, contrary to ss 49(5) (unlawful sexual intercourse), 56 (aggravated indecent assault) and 58 (procuring an act of gross indecency) of the CLCA. He was convicted by a majority verdict on one count of aggravated indecent assault but his appeal from that conviction was allowed[1]. At the retrial, the Director of Public Prosecutions filed a fresh information charging the appellant with one offence of persistent sexual exploitation of a child contrary to s 50(1) of the CLCA. The information on which the retrial proceeded particularised the acts comprising the offence as follows: "1. kissing [the complainant] on the lips, on more than one occasion,2. touching [the complainant's] vagina, on more than one occasion,3. touching [the complainant's] breasts, on more than one occasion,4. inserting his finger into [the complainant's] vagina,5. causing [the complainant] to touch his penis, and6. inserting his penis into [the complainant's] mouth."[1]R v C, M (2014) 246 A Crim R 21. Section 50 of the CLCA
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ, KEANE AND NETTLE JJ
BELL J
EDELMAN J
In this case, since the judge did not ascertain which of the alleged acts of sexual exploitation the jury were agreed were proved, the appellant should have been sentenced on the view of the facts most favourable to the appellant: that the jury had convicted the appellant of persistent sexual exploitation of the complainant on the basis of having committed no more than the acts of sexual exploitation alleged in Particular 1, namely, kissing the complainant on more than one occasion in circumstances of indecency. In fact, as will be recalled, the judge had expressly directed the jury that it was open to find the appellant guilty on that basis. The appellant was sentenced, however, as if he had been found to have committed all of the alleged acts of sexual exploitation. The sentence imposed was therefore not only infected by error, but also manifestly excessive.Conclusion and orders In the result, the appellant's appeal against the Court of Criminal Appeal's rejection of his appeal against conviction should be dismissed. The appellant's appeal against the rejection of his appeal against sentence should, however, be allowed. The sentence should be set aside and the matter should be remitted to the Court of Criminal Appeal for the appellant to be resentenced. The factual background and procedural history, which I am grateful to adopt, are set out in the joint reasons of Kiefel CJ, Keane and Nettle JJ. I agree with the orders that their Honours propose. The offence of persistent sexual exploitation of a child under s 50 of the Criminal Law Consolidation Act 1935 (SA) ("the CLCA") ranks among the most serious offences in the criminal calendar. It is punishable by life imprisonment. The actus reus of the offence is the commission of more than one act of sexual exploitation of the same child over a period of not less than three days. An act only qualifies as an act of sexual exploitation if it is an act that, were it able to be properly particularised, could be the subject of a charge of a sexual offence[68]. The inability to properly particularise is addressed in s 50(4)(b), which provides that the Information need not be pleaded with the degree of particularity that would be required if the act were charged as an offence under another section of the CLCA. It suffices if the prosecution avers with sufficient particularity the period during which the acts of sexual exploitation are alleged to have occurred and the conduct on which the prosecution relies as comprising the acts of sexual exploitation[69]. The latter requirement does not necessitate the identification of particular acts of sexual exploitation or the occasions on which, or places at which, or the order in which, acts of sexual exploitation occurred[70]. [68]Section 50(7) defines "sexual offence" as: an offence against Pt 3, Div 11 (other than ss 59 and 61) or s 63B, 66, 69 or 72; or an attempt to commit, or assault with intent to commit, any of those offences; or a substantially similar offence against a previous enactment. [69]CLCA, s 50(4)(a). [70]CLCA, s 50(4)(b)(ii).
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, KEANE AND NETTLE JJ,
BELL J,
EDELMAN J