Chiro v The Queen

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.