Chiro v The Queen - [2017] HCATrans 20

[2017] HCATrans 020

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A36 of 2016

B e t w e e n -
MARCO CHIRO
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 10 FEBRUARY 2017, AT 10.50 AM

MS M.E. SHAW, QC: May it please the Court, my name is Mrs Shaw and I appear with my learned friend, MR B.J. DOYLE, for the applicant. (instructed by Wallmans Lawyers)

MR I.D. PRESS, SC: May it please the Court, I appear with MS K. HODDER , for the respondent. (instructed by the Director of Public Prosecutions (SA))

NETTLE J: Thank you, Mrs Shaw.

MS SHAW: Your Honours, this application arises out of a guilty verdict delivered by a jury in relation to section 50 of the Criminal Law Consolidation Act 1935 (SA). The section is entitled “Persistent sexual exploitation of a child”.

The essential problem is that while the information alleged and the complainant gave evidence of a range of alleged acts of sexual exploitation, over a period of years, the trial judge directed the jury in terms that they could convict if unanimously satisfied of two offences only; indeed, if they were satisfied of two acts of indecent kissing, that is, offences of indecent assault. The trial judge refused a request that there be a special verdict and the jury, after some considerable deliberation, delivered a majority guilty verdict. The primary question ‑ ‑ ‑

EDELMAN J: Sorry, the trial judge’s refusal for a special verdict was based upon the assumption, was it, that a special verdict could not be given.

MS SHAW: Yes, it appears from the transcript at page 49 of the application book that her response was in terms that there are no special verdicts. So, her Honour approached it apparently on the basis that she understood from the case of R v N that she had no power, therefore no discretion to ask for a special verdict.

What we submit arises from the result in this case, and her Honour’s approach to sentencing, is the question of what is the actus reus taken to be proved by the verdict. If, which seems clear, the verdict cannot be taken to represent a finding of guilt on all the particularised and alleged misconduct in the information, is it open to the sentencing judge to make a finding as to the full suite of allegations and then to treat those findings as effectively dictating the ultimate sentence.

Further, if as we submit, that would violate the fundamental distinction between the roles of sentencing judge and jury, and would essentially deprive the accused of his right to a jury verdict on ingredients of the charged offending, does this mean that the judge should have taken a special verdict? We say, yes. Or if no such verdict is…

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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Details

Case: [2017] HCATrans 20
Decision Date

CaseChat Overview and Summary

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant, Mr Chiro, sought to challenge a guilty verdict delivered by a jury in the South Australian District Court for the offence of persistent sexual exploitation of a child, contrary to section 50 of the *Criminal Law Consolidation Act 1935* (SA). The core of the dispute concerned the trial judge's directions to the jury and the subsequent sentencing. The applicant argued that the jury could convict if unanimously satisfied of only two specific acts of indecent assault, despite the information alleging a broader range of misconduct over several years. The jury returned a majority guilty verdict, and the applicant contended that the sentencing judge erred by considering the full suite of alleged misconduct when imposing sentence, rather than limiting the sentencing basis to the two offences the jury was directed they could convict upon.

The legal issues before the High Court were whether the trial judge erred in refusing to seek a special verdict from the jury, and consequently, whether the sentencing judge was entitled to make findings about the full extent of the alleged offending when imposing sentence. The applicant argued that the sentencing judge's approach violated the fundamental distinction between the roles of the jury and the judge, effectively depriving the accused of his right to a jury verdict on all elements of the charged offending. The applicant submitted that if a special verdict was not sought, the judge was bound to sentence on the basis that the jury had only been unanimously satisfied of the two specific acts of indecent assault, and that any further findings by the judge regarding more serious misconduct would be inconsistent with the jury's verdict and the principle that an offender should not be punished for an offence of which they have not been convicted.

The applicant contended that the trial judge's direction, which allowed conviction based on only two acts of indecent assault, did not represent a finding of guilt on all particulars alleged in the information. This created uncertainty about the basis of the jury's verdict, particularly as the offence of persistent sexual exploitation requires proof of separate offences occurring over a period. The applicant argued that the sentencing judge should have either sought a special verdict to clarify which particulars the jury found proved beyond reasonable doubt, or been constrained to sentence only on the basis of the two offences identified in the jury's direction. The respondent argued that special verdicts are not a mechanism to check the jury's performance and that their utility is limited, particularly when raised late in proceedings. The respondent submitted that the sentencing judge's role is to determine sentence provided findings of fact are not inconsistent with the jury's verdict, and that in the absence of specific findings by the jury, there is no inconsistency in the judge making findings about culpability.

The High Court ultimately granted special leave to appeal on grounds 3 and 4, which concerned the sentencing judge's approach and the necessity of a special verdict. The Court noted that the applicant's arguments raised fundamental questions about the application of *Cheung v The Queen* and *R v De Simoni*, particularly regarding the proportionality of sentence to the jury's verdict and the principle that an accused should not be punished for an offence of which they have not been convicted. The Court also considered the respondent's submission that the question of special verdicts was fact-specific and not a matter of sufficient doubt to warrant special leave, and the argument that the timing of the request for a special verdict was inappropriate.

Orders