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

Copyright in the High Court of Australia

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 taken, the judge was bound to sentence on the basis that the ingredients and elements of the offending, to which the sentencing had to be proportionate, comprised only two relevant acts.  The questions ‑ ‑ ‑

NETTLE J:   Ms Shaw, could I ask you, why do you say the Court of Appeal was wrong in equating the exercise in this case to a judge sentencing for manslaughter after an accused has been put up on murder but been found by the jury to be guilty of manslaughter?

MS SHAW: We submit, if your Honours go to application book page 76 at paragraph 19, their Honours compare it to ‑ we have identified our arguments at paragraph 46, page 90 of the application book but, your Honours, there are two essential, critical differences. In a charge of manslaughter, there is only one verdict that is available, guilt or otherwise of manslaughter, and it is in essence based on one course of conduct. It is not open, as here, to consider different offences. In a section 50 case, the actus reus, as it is identified in section 50(1) and (2), requires proof of separate offences occurring over “not less than 3 days”. So, the jury have to consider separate offences and each of those separate offences have to be, not only proved beyond reasonable doubt, but the jury have to be unanimous as to each of those separate offences.

Whereas in a manslaughter trial or a return of a verdict of manslaughter, the jury do not need to be unanimous as to the basis of manslaughter and contrast in a section 50 case where the separate offences that might be charged under section 50 can range from indecent assault with a maximum of eight years imprisonment to rape which has a maximum of life imprisonment, then the resulting sentence, as this Court has held in this State, necessarily must hark back to the offences that were the subject of the section 50 application, or the section 50 offence. Whereas in relation to manslaughter, the different types of responsibility do not generate a hierarchy of level of seriousness of sentencing.

So, it is the need for the jury to consider separate offences, and two of those, to establish the actus reus, and for those separate offences to be decided upon unanimously, that clearly distinguishes this kind of case from manslaughter where the liability does not have to be established unanimously by the jury.

NETTLE J:   Yes, thank you.

MS SHAW:   Your Honours, so here, as we have said, the issue comes back to although the jury may in fact only have been unanimous beyond reasonable doubt in respect of two acts of indecent kissing, was it proper for the sentencing judge to treat the verdict as then having some more abstract significance or status and as representing a potentially broader offence, the detail of which could be found by the sentencing judge.

The respondent, in effect says that because the jury might in fact have found all of the separate sexual offences proved beyond reasonable doubt, you could not say with certainty that the sentence is inconsistent with a verdict but, we submit, in response to that, firstly, that that avoids facing up to the question of what is the offence found proved by the verdict.  Is it something different from what is required to prove the offence and the Court of Appeal’s judgment and the respondent must be assuming or contending that it is.

Secondly, we submit that if the position is that the sentencing judge may or may not have sentenced in a way which did not reflect the jury’s deliberation but that because of the single verdict we do not know enough to demonstrate inconsistency, then that simply underscores why the discretion to seek a special verdict ought to be properly considered in cases such as this. 

The respondent appears to accept that there was a power or a discretion in the judge in this case to seek such a verdict or ask questions of the jury, but the respondent says that whether or not this should have happened, is to fact specific to this case to warrant a grant of special leave. Our submission is that the reasons why the Court of Appeal thought it would be inappropriate are fundamental and, if correct, would foreclose the utility of special verdicts in all section 50 cases and the court ‑ ‑ ‑

EDELMAN J:   Do you say that a special verdict must have been sought or may have been sought.

MS SHAW:   We submit here, where her Honour has directed the jury that they are entitled to return a verdict on two offences only and identified those as two acts of kissing, which clearly did not represent all of the particulars in the information that were relied on for the actus reus, if her Honour did not seek a special verdict, then her Honour would be constrained in sentencing by being only able to sentence on the basis that her directions meant that you could only be satisfied that the jury had been unanimous beyond reasonable doubt as to only two offences.

She would then have been required to sentence such that any of the other offences that were alleged in the information could only be construed as context but not as increasing the sentence that her Honour then imposed because, in our submission, to invite or direct the jury that they were entitled to return a verdict on only two offences of indecent assault, and then to proceed to sentence on what, we submit, are clearly more serious offences of fellatio and unlawful sexual intercourse, is in effect to deny the accused the right to a jury verdict on those offences and indeed on particulars that are ingredients of the actus reus and as particularised in the information.

So, in our respectful submission, the alternative for her Honour was to seek a special verdict as to which of the particulars identified in the information were the subject of proof beyond reasonable doubt and, more importantly, unanimity by the jury of those particulars.  Your Honours, in our respectful submission, we submit that the result here is that we do not know in relation to, other than the two offences, whether the jury have positively rejected those offences; the accused does not know but, in our respectful submission, that uncertainty demonstrates why the sentencing judge ought to have sought that information so that she could then sentence on the basis that her sentence related to the offending that was reflected in the verdict returned.

We submit that the problem is acutely demonstrated here because when the last three particulars on the current information were the subject of separate charges before a previous jury, that jury were unable to find those particulars proved.  In our respectful submission, to say that this might result in a more generous basis to the accused than might otherwise apply, we submit, is a consequence of the exercise of the prosecutorial discretion to frame a single charge and include in it a whole range of conduct, even though it was able to be particularised, particularly in relation to the last three particulars and where a judge directs the jury that they are only required to potentially consider two for a verdict.

If her Honour, for example, had directed the jury that they were required to be satisfied unanimously about each and every particular, and the jury returned a verdict consistently with that direction, then that would have meant the accused had had a verdict from the jury on each and every particular but that has not occurred in this case and, we submit, that raises the important question of the application of Cheung’s Case and the statements by the court in that case in relation to the need for the judge not to sentence in relation to matters that in fact constituted an element of the offence charged, and I am referring to what the Court in Cheung v The Queen (2001) 209 CLR 1 said at page 5 and set out in our submissions at application book 89, paragraph 37 that:

The decision as to guilt of an offence is for the jury.  The decision as to the degree of culpability of the offender’s conduct, save to the extent to which it constitutes an element of the offence charged, is for the sentencing judge.  If, and insofar as, the degree of culpability is itself an element of the offence charged, that will be reflected in an issue presented to the jury for decision by verdict.

We submit that this reflects the basic principle that was identified by Chief Justice Gibbs in R v De Simoni (1981) 147 CLR 383 at page 389:

no one should be punished for an offence of which he has not been convicted.

So, in our respectful submission, her Honour, when she approached the question of sentence at page 51 of the application book, although it was put to her that her Honour ought to sentence on the basis upon which she had effectively directed the jury, namely, that one could only find from the verdict that the jury were unanimous about two acts of kissing indecent assaults, her Honour reasoned that, at line 28:

The very nature of the offence of persistent sexual exploitation of a child means that there has been a course of conduct of sexual abuse that has occurred over a period of time involving a range of conduct.

We submit her Honour has erred in that respect because our provision under section 50 has been held in this State, applying KBT, to actually require the proof of separate offences as to the actus reus.  Her Honour then, without analysing the evidence, proceeded to find that she accepted the complainant’s evidence in relation to each and every particular and therefore found proved the whole suite of offences and said ‑ ‑ ‑

EDELMAN J:   This submission is moving from grounds 3 and 4 to ground 1 now, is it?

MS SHAW:   Yes, yes.

NETTLE J:   Well, ground 1 and ground 2 are really not in the same league when it comes to a claim for special leave as grounds 3 and 4, are they?

MS SHAW:   There is an overlap in that one of the issues that arises in relation to the particulars at page 4 of the application book, your Honours will see, is that particulars 1, 2 and 3 simply assert kissing on more than one occasion.  So, that uncertainty in the particulars gives rise to two issues; one, whether or not that information itself creates uncertainty but, more importantly, the uncertainty as to the meaning of the verdict which is tied into grounds 3 and 4.  Your Honours, in our respectful submission, we ‑ ‑ ‑

NETTLE J:   I see the time, Mrs Shaw.

MS SHAW:   Thank you, your Honour.

NETTLE J:   Mr Press.

MR PRESS:   It is submitted that the applicant’s argument is flawed in a number of significant respects.  Exposing those flaws will, it is submitted, justify the respondent’s submission that the decision of the court below is not attended by sufficient doubt to warrant a grant of special leave.  This is also not an appropriate vehicle to test the boundaries of when in the circumstances in which special verdicts or special questions should be asked.

The first point the respondent makes is the criteria or considerations for the use of special verdicts are quite simple and obvious.  The question that the court asks itself is whether it is appropriate or useful for such a verdict to be taken or for such questions to be asked.  The applicant appears to accept that they are the general criteria so the nature of the criteria is not under challenge.  It is more about the application of these facts to those criteria.

The second general point to be made is that it is well settled that the role of the jury is to decide whether the accused is guilty or not guilty of the charge particularised on the information and it is the responsibility of the judge to determine the appropriate sentence, provided any findings of fact are made on the appropriate balance of proof and provided that the findings of fact are not inconsistent with the verdict of the jury.

The nature of the questions will need to be considered and the point in the proceedings when the court was asked to take special verdicts will also need to be considered.  The respondent notes that the argument in relation to the conviction being void is not really the primary focus of the special leave application.  The primary focus of the special leave application is that the sentencing basis was unfair and that the sentencing basis should not have been determined by the sentencing judge.

It is important to bear in mind, in my submission, that the special verdicts are not a mechanism by which to check if the jury have performed their role properly.  The role of special verdicts or special questions must be, in this case, to determine whether the defendant’s culpability should and could have been ascertained by the jury verdict and the respondent’s submission is it is neither appropriate nor useful in the circumstances of this case to take special verdicts or ask special questions after the verdict.

NETTLE J:   Would not the gravity of the offence depend upon the two or more individual offences found to have been committed?

MR PRESS:   Your Honour, can I rephrase that question because what the jury must do is find certain conduct proved.  They do not find certain offences proved.  There is only one offence on the information and that is persistent sexual exploitation so in many, many cases there will be alternative paths to guilt that a jury has to consider.

It may be as broad as whether it is part of a joint enterprise, whether the person is a principal or whether they are an aider or abetter.  That will require the jury to consider the conduct of the accused and all the evidence.  In my submission, persistent sexual exploitation is no different in that regard.  A very basic example, in my submission, is in the case of murder.  The jury, they do not have to distinguish between an intention to kill and an intention to do grievous bodily harm.

Nonetheless, they have to be satisfied of one of them to find the defendant guilty and it may well be that the jury do not make a finding about that or it may well be that the jury do make a finding, a positive finding about that.  There is no requirement for a judge to take a special verdict in relation to murder, to find out if the jury did reach a conclusion as to whether there was an intention to do GBH or an intention to kill.  There is no impediment on a judge, notwithstanding there is no special verdict, then making a finding for himself or herself that the defendant in fact committed the offence with an intention to kill.

So, first of all, that is an aspect that goes directly to an element of the offence, no different to the scenario we have here where there is other conduct which goes to the element of the offence.  It also goes directly ‑ ‑ ‑

NETTLE J:   Is not the difference that in the case of the murder to which you refer the jury will have found that the accused killed the deceased and the judge will know that and be able to work out from the evidence, and perhaps be able to work out from the evidence beyond reasonable doubt what the mental element involved was.  By contrast here, as it stands, I am not sure how the judge works out which two or more acts alleged to have constituted the continuing offence were found by the jury to be proved.

MR PRESS:   Well, your Honour, I accept that the judge will not know which conduct the jury was satisfied about but that, in my respectful submission, is not an answer to when there should be special verdicts or special questions because there has to be a utility, there has to be a purpose behind asking these questions, and the utility is only achieved if the jury go on to make findings about each act, each piece of conduct that could have constituted an element of the persistent sexual exploitation.

If the jury do not do that, then there is no utility because the jury will not have made findings in relation to all of the other conduct.  It would not be an unusual scenario, in my submission, for a jury to be faced with multiple avenues to guilt.  They perhaps look at one avenue, in this case particular acts or particular conduct, and once they are satisfied of that, they do not then go on and consider all the other conduct or all the other avenues or pathways that might rely on different conduct to determine whether the defendant has also done that.  So, in the absence of specific findings by the jury, in my respectful submission, it removes all utility from taking special verdicts because all that the special ‑ ‑ ‑

NETTLE J:   Are not the jury directed that they must be unanimous as to each of the two or more acts found to constitute the offence?

MR PRESS:   Yes, that is correct, your Honour, and so what that would allow the judge to possibly determine, if questions could be fashioned that would allow that to be unravelled, it would mean that the judge would know these were the two acts upon which they were unanimous.  That does not mean that sentencing the defendant on the basis of other conduct, not other offences, other conduct, particularised within this PSE would be inconsistent with that verdict.

It would only be inconsistent if the jury had gone on and considered all the other conduct and made a formal finding by majority or unanimously that they were satisfied it did not happen and that, in my respectful submission, is why the utility or purpose behind these verdicts or questions is seriously undermined.  It could never seriously be contended, and I do not understand that the applicant does so, that the jury must be directed by the judge to go on deliberating indefinitely after they have found the defendant guilty, so that they can determine whether all other conduct that would also have justified a finding of guilt, has been proved beyond reasonable doubt.

That function is inconsistent with the role of the jury and it also fails to take into account that the role of the sentencing judge is to make findings of fact about matters relating to culpability, provided they are not inconsistent with the verdict, and in the absence of a specific finding there is no inconsistency.

So, in my respectful submission, the applicant’s claim that a special verdict or a special question should have been asked, really falls at the first hurdle here because there was no utility.  The only utility comes about if the jury have made specific findings and that would be inconsistent with their role.

EDELMAN J:   Are they any other offences which require a sentencing judge to make findings of fact which go as far as the findings of fact relating to the elements of the offence, in a case such as this where it is unclear what are the acts which the jury has been unanimous upon that constitute the two or more acts necessary to amount to persistent sexual exploitation?  Manslaughter it seems to me is quite a distance from that.

MR PRESS:   Could I then perhaps just touch on manslaughter very briefly because it would not be uncommon for excessive self‑defence or a lack of intention to do grievous bodily harm or intention to kill to be an issue at a trial.  Excessive self‑defence would raise questions about the victim’s conduct.  So, notwithstanding the defendant might have had an intention to kill, there are very separate considerations in relation to the victim’s conduct and how that impacted on the defendant.

On the other hand, the lack of intention to do grievous bodily harm which gives rise to unlawful and dangerous act, manslaughter, it really has nothing to do with the victim and is solely directed at the defendant.  So, manslaughter, in my submission, is a good example of that where there are very different pathways and yet clearly the court in Isaacs and the High Court in Cheung suggest that manslaughter was not an appropriate type of case for special verdicts.  Another example might be, your Honour ‑ ‑ ‑

EDELMAN J:   Well, the contrast is not quite whether it is an appropriate case for special verdicts.  You would say, I take it then, that if the applicant’s case were correct that it would be necessary in a manslaughter case, where the jury could have reached the decision as to guilty of manslaughter by different routes, for the sentencing judge or the trial judge either to seek a special verdict or to sentence on the basis of the least culpable finding of manslaughter.

MR PRESS:   Correct.  And manslaughter, in my submission, is not the only example.  Many of the drug offences now, whether they are trafficking or manufacturing, incorporate a concept of taking part in the process of manufacture or taking part in the process of sale.  Any one of a number of different acts could of itself prove the offence, although clearly in those matters no special verdict or special questions are asked.  In a rape trial, a defendant – again it may not be necessary for the jury to make a specific determination, but a jury may make such a determination, and the effect of the applicant’s submission is that, where they are important matters of culpability, then special verdicts or special questions need to be asked.

NETTLE J:   Rape is a good example, because the jury would have to be agreed as to the act of penetration, would they not?

MR PRESS:   That is true, your Honour.  The diversification might come in relation to whether the defendant knew the victim was not consenting, was reckless as to whether she was not consenting or simply gave no thought at all to whether she was consenting.

NETTLE J:   Yes.

MR PRESS:   It is possible that on occasion a jury might be agreed as to that.  Well, if the purpose of these special verdicts or special questions is to remove from the sentencing judge any possibility of inconsistency and to ensure that the jury assumes the role of deciding anything that is relevant to the culpability where it involves an element of the offence, then it is difficult, with respect, to know where the application of that principle would stop.  It would appear to touch on a great many offences.  In my submission, the applicant has provided no basis upon which to distinguish the circumstances in this case from the myriad of other cases in which similar circumstances would arise.

I am mindful of the time.  Can I deal very briefly with the questions that the Court asked my learned friend?  Firstly, in my submission, it might be reading too much into the specific words used by her Honour to say that her Honour was of the view there was no discretion but, in any event, that was not the basis upon which the court below made its decision.  The court below made its decision on the basis in the circumstances of this case it was unnecessary.  So, it is that decision which is not attended by sufficient doubt.

Secondly, consistent with what fell from the New South Wales Court of Appeal in Isaacs, there are potential difficulties with raising with a jury the need to provide such answers, whether on the verdict or after the verdict, in circumstances in which – in the circumstances of this case.  The question of special verdicts was not raised until after addresses, after summing‑up and after the jury had been deliberating for some nine hours.

So, in my respectful submission, to then ask the jury to start considering aspects to do with special verdicts and special questions would have been inappropriate.  If such a process is going to be appropriate, there has to be an appropriate time at which all parties are aware, including the jury, of what is going to be expected of them.

One other aspect I will touch on briefly which, in my submission, points to the flaw in the applicant’s argument is that reliance appears to be made both in argument today and in the outline on De Simoni.  De Simoni was a very different case.  De Simoni, as my learned friend correctly stated, suggested that ‑ ‑ ‑

NETTLE J:   I see the time, Mr Press, thank you.

MR PRESS:   If your Honour pleases.

NETTLE J:   Is there anything in reply on grounds 3 and 4, Mrs Shaw?

MS SHAW:   Yes, your Honours.  First of all, in relation to the submission about manslaughter, we would point out that it does not help to call it conduct when the learned judge directed the jury, quite rightly.

This Court held in KBT that although a pattern of offending might or a course of offending might be just its description, in fact it requires the proof of offences, and my learned friend acknowledges that the jury may not have been satisfied as to, for example, the more serious offences, but submits that the judge is entitled therefore to consider proof of those more serious offences.  That necessarily impacts on the ultimate penalty, and this offender received 10 years.  That means that the sentence imposed is not proportionate to the verdict and it means in the De Simoni principle the accused is entitled to the verdict on those offences or if it is an element of the offence, as we have said before.

The analogy that is perhaps closest is when this Court has held and other cases have held that if a circumstance of aggravation is to be relied upon such that it increases the penalty, absent the statutes saying otherwise, that circumstance of aggravation must be submitted to the jury and a return of yes or no to proof of that circumstance of aggravation occurs.

So, in every case, the underlying principle is the sentence must be proportionate to the verdict of the jury, an accused is entitled to that verdict – have the sentence according to the jury finding of offences and, if the court’s approach here in the CCA is upheld, then the issue of a special verdict becomes a dead letter and in essence the determination of all of the offences which the prosecution in their discretion bundle up into a section 50 charge will essentially be passed to the judge because of the uncertainty of the meaning of the verdict if the trial judge directs in this way.

We submit that the submission that its conduct belies the terms of the section, belies KBT, that these are offences that must be proved.  The range is from life imprisonment for rape to eight years for indecent assault.  The proportionality requires a finding as to which offences are proved so that the judge is sentencing for those.  Any other offences might be context, but you cannot increase the gravity beyond the jury verdict because it would become disproportionate.  This is fundamental to the right of a jury ‑ the right of an accused to have a trial by jury on offences, and this is a peculiar piece of legislation which in essence allows those offences to be particularised in the information.

The accused is in the charge of the jury on that information and if there is not a verdict on the particulars on that information in the sense of certain particulars only, being potentially the basis for the verdict, it is not open to the trial judge to then conduct a trial and assert that because the

nature of the offence is consistent with sexual exploitation, then she is entitled therefore to find the most serious offences proved.  That issue of ‑ ‑ ‑

NETTLE J:   Thank you, Mrs Shaw.  Thank you very much.

MS SHAW:   Thank you, your Honours.

NETTLE J:   There will be a grant of special leave confined to grounds 3 and 4.  Lady and gentleman, what is your estimate?  Can it be completed within half a day?

MS SHAW:   Yes, we believe so, if the Court pleases.

NETTLE J:   Mr Press?

MR PRESS:   I agree, your Honour.

NETTLE J:   Thank you.  It is noted that the estimate of counsel is that the matter can be completed within half a day.  You will need to consult with the Registry as to the remaining interlocutory steps, of course.  I am grateful to counsel for their assistance.  The Court will adjourn now until 10.15 am on Tuesday, 28 February 2017 in Canberra.

AT 11.29 AM THE MATTER WAS CONCLUDED