Chiro v The Queen; Hamra v The Queen
[2017] HCATrans 134
[2017] HCATrans 134
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Adelaide No A9 of 2017
B e t w e e n -
MARCO CHIRO
Appellant
and
THE QUEEN
Respondent
Office of the Registry
Adelaide No A14 of 2017
B e t w e e n -
STEPHEN JOHN HAMRA
Appellant
and
THE QUEEN
Respondent
KIEFEL CJ
BELL J
KEANE J
NETTLE J
EDELMAN J
TRANSCRIPT OF PROCEEDINGS
AT ADELAIDE ON WEDNESDAY, 21 JUNE 2017, AT 10.18 AM
(Continued from 20/6/17)
Copyright in the High Court of Australia
____________________
KIEFEL CJ: Yes, Mr Solicitor.
MR BLEBY: I really only have some final observations to make in respect of the matter of Chiro. Your Honour Justice Nettle asked about the grounds of appeal to the Court of Criminal Appeal and specifically whether it was a ground of appeal that the trial judge had impermissibly assessed that she had to sentence on the basis of the particulars as alleged rather than on the basis of her own finding of beyond reasonable doubt.
The notice of appeal is at page 771 of the appeal book. The answer is no. The notice of appeal proceeded on the basis that her Honour had sentenced in accordance with what she expressed, that is, that she had found those facts herself beyond reasonable doubt. Your Honour will see that in ‑ ‑ ‑
NETTLE J: In 2(a).
MR BLEBY: In 2(a), yes, your Honour.
NETTLE J: I may be at cross‑purposes with you. All I was endeavouring to convey was that I read it as meaning it was contended that the judge had erred by assuming unto herself the task of finding the fact.
MR BLEBY: Yes. I think then ‑ ‑ ‑
NETTLE J: As opposed to seeking the answers to questions from the jury.
MR BLEBY: I see, I see, yes. The ground was that she erred in:
sentencing on the basis that the identification of the acts which comprised the second element of the offence was a factual matter for the sentencing judge ‑ ‑ ‑
NETTLE J: Yes.
MR BLEBY: So it is not – that is the basis upon which she proceeded. So to that extent, yes – it is not really all that clear in that sense, is it?
NETTLE J: Then, 2(c), the finding was perverse, in effect.
MR BLEBY: Yes.
NETTLE J: So it seems like both of the bases are covered, at least on appeal to the Court of Appeal.
MR BLEBY: I think so, yes, your Honour, yes.
NETTLE J: Thank you. Thank you very much, Mr Solicitor.
MR BLEBY: There was some discussion yesterday, in particular between your Honour Justice Bell and my learned friend as to what would follow from the plea of guilty and then the dispute as to the gravity and breadth of the occasion. So that, of course, is a matter, as your Honour recognised, that we raised in our written submissions.
My friend’s answer was to the effect that by pleading guilty the accused thereby chooses not to avail himself of the protection of the institution of the jury. The effect of that submission really is that the finding of facts relevant to sentencing then alters depending – or the role of the fact finding alters depending on the election to plead.
It really comes back to this. The role of a jury is to determine the issue joined on the information. A plea of guilty equally determines the only issue that would otherwise be joined on the information. The principles which we discussed at length yesterday speak, in my submission, against any other role of the sentencing judge. I think we then default back to the same discussion that we had before. There are no further points to be made.
But the point still remains, in my respectful submission, that on the plea of guilty you have a conviction. That is really the third point that we want to come to is that whether or not it was desirable or even required that the questions be asked, there can be no question that the verdict was certain, that is, the verdict on that which was presented to the jury on the information as to the actus reus.
The only effect any error in failing to ask questions could have would be regard to the basis of sentencing. As to the relief that would then follow, the appellant submits – of course, this is necessarily contrary to the general position in Isaacs and what sits behind that is what was discussed yesterday is this novel position alters the general position – the matter must therefore be remitted to sentencing on the basis of the most favourable view of the facts to the accused.
That of course, however, is to sentence on a basis of equal unknowing as to whether it matches what the jury found and, indeed, it becomes in one sense more egregious because it then becomes speculative as opposed to relying on what the trial judge finds beyond reasonable doubt. I am not sure how we resolve that but I think it is necessary to understand that that is the effect of the relief that is sought.
BELL J: Can I just inquire – do we find the statement of the offence wholly within subsection (1)?
MR BLEBY: Subsection (1) of the section, your Honour?
BELL J: Yes.
MR BLEBY: Yes.
BELL J: Yes.
MR BLEBY: It is given some content by subsection (2).
BELL J: Yes.
MR BLEBY: That is definitional content but, yes.
BELL J: But the offence is wholly contained in subsection (1).
MR BLEBY: Yes.
BELL J: Subsection (4), particularly, subsection (4)(b), requires the information to allege a course of conducts consisting of acts of sexual exploitation.
MR BLEBY: Yes.
BELL J: Am I right in my understanding from an exchange yesterday, it is accepted that the prosecution is required to set out in the information all the acts upon which it relies as well as it can particularise them, taking into account the provisions of subsection (4)(b)?
MR BLEBY: Yes, on the understanding that that is a matter of particularity.
BELL J: Yes. So when one has an information framed as this information is with some degree of particularity in relation to acts of sexual exploitation, how does one identify what is – when one speaks of joining issue on the entry of the plea of not guilty ‑ ‑ ‑
MR BLEBY: Join issue?
BELL J: Yes.
MR BLEBY: In this case, on the information – sorry, your Honour. As a matter of formality you join issue with the charge and that necessarily, of course, joins issue with particulars, but only as a consequence.
BELL J: Yes.
MR BLEBY: It necessarily follows.
BELL J: It is just a feature of this unusual offence‑creating provision that the prosecution is required to aver more than is requisite to prove the offence. That may not always be true because it may be that there would be cases where all that is being averred is the commission of two acts of sexual exploitation over the prescribed period.
MR BLEBY: Certainly.
BELL J: But in a case where, as here, conformably with the requirements of the section one is averring a number of acts of sexual exploitation.
MR BLEBY: Well, a course of conduct consisting of acts, yes.
BELL J: That is why I take up with you whether the offence is in subsection (1) and your acceptance that it is – we do not find course of conduct in the offence‑creating provision which concentrates wholly on acts of sexual exploitation and then, in terms of the procedural requirements, insists on such degree of particularity as you can in identifying in the information ‑ ‑ ‑
MR BLEBY: Perhaps the way of looking at that is to read – the chapeau of (b) is really the introduction to subparagraphs (1) and (2), which are described in what need not be particularised, but it provides that baseline from which the amelioration then requires it. When you have the amelioration or Parliament has decided it is necessary to put in a corresponding baseline they could have done it just by cutting straight to subparagraphs (1) and (2). I will be addressing this further in Hamra, obviously, but it is ultimately, in my submission, a package on particularity on charging which then of course has necessary but contextual implications for proof.
EDELMAN J: There are some remarkable similarities between section 50 and section 4(1) of the Protection from Harassment Act in England, which requires a course of conduct consisting of two or more acts and permits the finding to be made by presumably a jury selecting any two or more acts from a list of varied acts. Are you aware of or have you conducted any research into any of the authorities over the last two decades which have considered whether any allied problems have occurred in relation to the English provision?
MR BLEBY: No, your Honour, I have not. I propose then to move to the Hamra appeal. Your Honours should have my outline of oral argument.
KIEFEL CJ: Yes, Mr Solicitor.
MR BLEBY: Thank you, your Honour. The case of Hamra of course requires, in one sense, a more comprehensive exercise of construction of the section. To do that, what I propose first to do is to go to the authorities that are raised against us in order to identify what they actually establish so that then we have a framework of analysis to proceed with the actual construction of section 50.
Now, those authorities are KBT v The Queen 191 CLR 417; KRM v The Queen 206 CLR 221; R v SLJ 24 VR 372; and of course S v The Queen, which was the subject of some discussion yesterday. The two offences that were dealt with respectively in KBT and KRM were in comparable terms with each other, the Queensland and the Victorian provisions respectively.
As I will come to, the offence in SLJ was different – that is, the section was amended between the judgment in KRM and the judgment by the Victorian Court of Appeal in SLJ and that becomes important. But together these cases speak to two aspects of the offences, the actus reus and what is the particularity required for proof of the actus reus and we need to be a bit careful about what these cases said with respect to those specific offences under consideration.
Now, in KBT, the case concerned section 229B of the Criminal Code (Qld). The case is at tab 5 of the authorities. The section is at page 420 of the report and at page 421 the plurality recounts the evidence which was highly generalised as to a course of offending of various types. There were essentially six very broad categories of behaviour that had been alleged. At page 422 the plurality described the actus reus of the offence in these terms – it is at about point 8 on the page:
Rather, it is clear from the terms of sub‑s (1A) that the actus reus of that offence is the doing, as an adult, of an act which constitutes an offence of a sexual nature in relation to the child concerned on three or more occasions. Once it is appreciated the actus reus of the offence is as specified in sub‑s (1A) rather than maintaining an unlawful sexual relationship, it follows, as was held by the Court of Appeal, that a person cannot be convicted under s 229B(1) unless the jury is agreed as to the commission of the same three or more illegal acts.
That is the statement that is the source of the requirement of extended unanimity. We then go to page 423 and it is there that the court addressed that part of the section which dispensed with ordinary common law requirements of proof, at least to the extent which it did. At the top of the page:
The subsection’s dispensation with respect to proof applies only to the dates and circumstances relating to the occasions on which the acts were committed. It does not detract from the need to prove the actual commission of acts which constitute offences of a sexual nature.
Now, as I noted, in this case the evidence was very highly generalised. The court then went on to say, at page 423, directly following, and this is really what is put against us:
It should be noted that, quite apart from any question of fairness to the accused, evidence of a general course of sexual misconduct or of a general pattern of sexual misbehaviour is not necessarily evidence of the doing of “an act defined to constitute an offence of a sexual nature . . . on 3 or more occasions” for the purposes of s 229B(1A). Moreover, if the prosecution evidence in support of a charge under s 229B(1) is simply evidence of a general course of sexual misconduct or of a general pattern of sexual misbehaviour, it is difficult to see that a jury could ever be satisfied as to the commission of the same three sexual acts as required by s 229B(1A).
Now, if I could make two observations about that. The first is that the Court is not saying that evidence of a general course of sexual misconduct will inevitably fail to prove the commission of those same acts. We can be quite certain of that because in this case the Court ordered the matter to go back to retrial – that is at page 438 of the report. The error had been a failure to give an extended unanimity direction and the Court did not consider that in any event an acquittal should be entered, given the state of the evidence.
The second observation is that these statements cannot really be divorced from the Court’s construction of the part of the section that ameliorated the requirements of proof, that is to say the applicability of these statements in context will depend to some degree on what level of amelioration of proof there has been.
That brings me to KRM, which is at tab 7 and dealt with 47A of the Crimes Act (Vic). The amelioration of proof was in the same terms and the appellant relies on the judgments of each of Justices McHugh and Kirby. This of course is a case about the need to give a propensity warning but members of the Court in that context commented further on the requirements of proof and as in KBT with exactly the same terms of dispensation in the section, the evidence was again highly general. The effect of the evidence is set out at paragraph 11 in Justice McHugh’s judgment and the appellant relies on the passage of Justice McHugh at paragraph 14, where his Honour says:
But, whatever the reason for the failure to object, it is a mistake to assume that evidence of the kind and the form in this case is sufficient to support a charge under s 47A.
His Honour then recites the dispensation and goes on:
But that does not mean that the charge could or now can be proved by a blanket assertion that on three or more occasions the complainant and the accused engaged in an act that falls within a category specified in s 47A(2).
Indeed, his Honour then goes on at paragraphs 16 and 17, at about point 3 on the page:
Here the legislature has made it clear that the prosecution does not have to prove the date or the exact circumstances of the offence. But that is all. It has not said that the prosecution need not give particulars or need not prove the general circumstances of each act constituting the offence.
So his Honour was of a view that he still needed to adduce sufficient evidence to identify each occasion. That is almost a higher statement of what is put against us in this case. I would also draw comments of similar effect to paragraph 92 per Justice Kirby.
Not only had the Court in KBT ordered the matter go back for a retrial, but the statements by Justices McHugh and Justice Kirby were in the minority. Justices Gummow and Callinan’s judgment I would ask you to take up from paragraph 65. At paragraph 65 their Honours noted the radical nature of the section and as to the requirements of proof, at paragraph 67, their Honours said:
The section requires proof of three relevant acts. The question is, what more, if anything does the section demand by way of proof. We read the negative reference to “dates” and “exact circumstances” in sub‑s (3) to mean that proof of no more than the actual occurrence of the three acts is necessary. If neither the dates nor the exact circumstances must be proved it is difficult to see what “inexact” circumstances should be.
Their Honours considered the impact of the word “occasions” at paragraph 68, saying:
In our opinion, the use of the word “occasions” does not produce those consequences. The discernible intent of the section was to create an offence, the component parts of which by their very nature may have occurred over a long period, in the past, and in circumstances in which precise recall of detail will not only be difficult for a complainant, but also may provide fertile ground for cross‑examination of him or here on behalf of an accused.
The ultimately at paragraph 70 their Honours pointed out that if there are potential difficulties with general evidence, warnings can be given. Perhaps most clearly, at paragraph 136 Justice Hayne said:
Where I differ from McHugh J is that I do not accept that the evidence which was given at trial was insufficient to support the conviction of the appellant on this count. It is true that, as a matter of broad characterisation –
et cetera. Then paragraph 137:
Accepting, as I do, that proof of an offence under s 47A requires proof of three acts of the kind specified in sub‑s (2) of that section, it will suffice to specify those acts in the indictment by identifying the kind of conduct alleged . . . the dates between which the acts are alleged to have occurred, and the place or places at which the acts are alleged to have occurred.
At paragraph 138:
There may well be cases where the evidence is so general and vague as not to be capable of persuading a jury beyond reasonable doubt that the accused committed the acts. But, unless the evidence is such that the trial judge could properly take the question of guilt away from the jury (as, eg, for want of proof of one of the acts constituting the offence) the sufficiency of the evidence is a matter for the jury. In the context of s 47A, which explicitly recognises that exact evidence may not be available, the fact that a complainant gives evidence which does nothing more than rehearse the elements alleged in the indictment is not reason enough to withdraw the matter from the jury ‑
of particular importance in this case when we were talking about a “no case” submission that was successfully made. We have three Justices then in KRM who confirm that the actus reus is the individual acts – indeed, all five do that – consistent with KBT but confirm that those individual acts can be proved by general evidence that does not necessarily delineate peculiar circumstances of each act such that they can be distinguished from each other.
I also then need to respond to what is put against me in S v The Queen (1989) 168 CLR 266 – which is tab 19 of the authorities. That is the case, of course, that provoked legislation around the country of the type that we are now concerned with. That was a charge of three counts of carnal knowledge, each within a specified period of time. The complainant gave evidence of two specific acts of intercourse but there was no evidence that could specifically link those acts to the specified periods.
Importantly, there was no statutory abrogation of requirements of proof and the Court applied Johnson v Miller in ordinary terms, and your Honours can see that, for example, from Justice Toohey at page 282 and Justices Gaudron and McHugh at pages 285 to 286. It was on that basis that at page 287 through 288 Justices Gaudron and McHugh said at point 9:
Even leaving aside the problem referable to the overlapping of the second and third periods specified in the indictment –
I just ask your Honours to read that passage through to page 288, ending with the sentence:
it is impossible to say, in relation to any one count in the indictment, that the jury as a whole was satisfied as to the applicant’s guilt of an individual act answering to the description of the offence charged.
You see, this case is not authority for a general proposition that you cannot prove individual acts by general evidence. Here the particularised occasions could not be proved because there was no evidence linking the acts testified to to the occasions specified, and required to have been specified at the common law, in the information.
Finally then we come to R v SLJ (2010) 24 VR 372; that is at tab 17. That was also section 47A of the Crimes Act (Vic) but now it was in an amended form. Your Honours will see the amendment at paragraph 4 of the report, but I need your Honours to put a thumb in that and then go back to KRM at tab 7 and back to the judgment of their Honours Justices Gummow and Callinan at paragraph 68.
EDELMAN J: So which page of SLJ was that?
MR BLEBY: SLJ is at paragraph 4, and that sets out section 47A(3), your Honour, which is the new version of the dispensation. That amendment was made prior to judgment being delivered in KRM. Their Honours Justices Gummow and Callinan remarked on it at paragraph 68, where they held that here the legislature had enacted an amendment – right from the bottom of the page:
of s 47A(3) in 1997 to refer to, and thereby to require some degree of specificity as to date, time, place, circumstances or occasion of each relevant act.
What their Honours saw was that there had been a general abrogation of the requirement, that the amendment had actually put some requirement of specificity back in, and it was on that basis that the Victorian Court of Criminal Appeal then proceeded in SLJ. The applicant in that case had pointed to generalised evidence that he submitted was incapable of founding a conviction.
Your Honours will see at paragraphs 6 through 7 of the report that senior counsel for the Crown in fact conceded that it was indeed insufficient. At paragraph 8 the court agreed and it referred to the passage in KBT that I have taken your Honours to at page 423. Their Honours said at paragraph 8:
It is well established that evidence of “a general course of sexual misconduct” or of “a general pattern of sexual misbehaviour” is not, or not necessarily, evidence of “an act . . . which would constitute an offence” for the purposes of s 47A.
Their Honours there cite KBT, but the difficulty with that citation is that in KBT the Court had not said it is not evidence of an act; it had only said “not necessarily”. This passage actually elevates what was said in KBT, and, with respect, wrongly so, which is demonstrated by the fact that of course, as I said, in KBT they sent it back for retrial. That use of the word “not” on its own is not, with respect, what the authority stood for. Then at paragraph 9 what their Honours did was adopt the observation of Justices Gummow and Callinan in KRM as to the impact of the amendment to section 47A(3). But here they go further and they say the requirement of specificity in proof is on account:
of the necessity of a jury’s being satisfied as to the commission of the same three acts –
that is, extended unanimity. But that is not what is endorsed by the majority in KRM and, indeed, it is implicitly rejected in KRM, because in KRM the majority says on the one hand yes, you have to have the actus reus as the individual acts but on the other hand you can prove them through generalised evidence. That is the majority.
So what necessarily follows from KRM, which the majority of the court, with respect, in SLJ does not grapple with, is that extended unanimity is not and cannot be the source of the requirements for particularity of proof. It comes right back to the beginning, to KBT, where we have the actus reus ‑ that is, the act – and that requires extended unanimity. Proof is a common‑law concept. The question then is: to what extent have the requirements of proof of those acts been ameliorated, given that we can reason from the general to the specific in a deductive form of reasoning? That being the case, we are going to have to turn to section 50 of this Act. The actus reus, as I have submitted to your Honour Justice Bell a short time ago, is contained in section 50(1):
An adult person who, over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age -
The concept of an act of sexual exploitation is then given content by subsection (2). It is:
an act in relation to the child . . . that could . . . be the subject of a charge of a sexual offence.
I parenthesise: if it were able to be properly particularised. So that requires proof of the same elements; that is, the same actus reus. But particulars of time, location, circumstance peculiar to the occasion of each act do not constitute elements of the offence, and they are particulars that the prosecution is ordinarily required to prove under its common law obligations for the reasons that have been discussed and which we outline in paragraph 15 of our written submissions.
If those particulars then do not form elements of the reference sexual offences that are picked up in dictionary form, there is no reason or tenet of interpretation to hold that they would form elements of an offence under section 50, so the first step is to recognise that any asserted requirement for particularity such that you can specify each particular occasion cannot come from the actus reus of the offence.
The ordinary source of requirement of particularity of the common law - and our only construction question then is has this been modified - we move straight to the phrase then in subsection (2):
if it were able to be properly particularised -
This, we say, establishes a relationship of contradistinction between proof of sexual offences so described under the ordinary way and proof of acts of sexual exploitation that have the same elements. The phrase “properly particularised” fastens onto the common law requirement of particularity. The contradistinction lies in the words “if it were able”.
By distinguishing acts of sexual exploitation from acts that are able to be properly particularised, and therefore able to be made a charge for a separate sexual offence, the subsection is neutralising in concept the common law requirement for particulars of proof. That is the only work that it had to do, but it does not here say what, if any, baseline particularity remains.
We then need to move to a contextual analysis. Here I am, of course, referring specifically to subsection (4), and this subsection is expressed to apply in relation to charging, as has been put by my learned friend. It has nothing to do with the elements of the offence but it is relevant and, indeed, we say entirely contextually necessary to determining the requirements of proof.
Section 50(4)(a) establishes a new baseline of what must be charged expressly subject to the limits of what then come. So the period during which the acts occurred must be pleaded, a single period of time in the ordinary course and, as your Honour Justice Bell pointed out, the alleged conduct. We can tie these requirements then with the chapeau of subsection (4)(b) – that is, that the information must allege a course of conduct.
So we have a baseline of particularity of a period, conduct, course of conduct, and this is where subsection (2) expressly contemplates that the acts in question will or may not be able to be properly particularised and the offence itself is one of committing multiple acts over a minimum period. Then we have subsection (4)(b) which is unambiguous about what is not required to be particularised on the information being particular acts, occasions, places or the order. The appellant says that this amelioration of charging does not demonstrate a requisite intention to ameliorate common law requirements of particularity of proof.
That submission, being a bare submission, with respect, does not address the necessary intendment of subsection (2). If the acts are not able to be properly particularised, that speaks necessarily for all purposes, charging and proof. Subsection (4) ameliorates the charging requirements – that is, the prosecution cannot get off the ground unless you have this baseline but need not do these things.
To suggest then that section 50(1) would require proof of those matters where there is no requirement to notify the accused of them in their charge – that is, in circumstances where it is already contemplated that it is not able to be properly particularised, that ultimately would, of course – it is illogicality. But let us say that it could be properly particularised but the prosecution need not do so but must prove, that would be a very odd construction indeed and one that would potentially operate to the detriment of an accused.
Now, it may be cured by subsequent requests for greater particularity as the matter heads towards trial, but for the section to be contemplating that kind of anomaly would be a very odd construction indeed. Then we can look at it in this way. After rhetorical question, given the amelioration in the charging context, what would be the point unless it were then to ameliorate the requirements of proof? It makes no sense at all simply to ameliorate charging requirements. The important link is subsection (2), but the appellant’s submission that this only speaks to charging begs the question of what would the purpose of such an amelioration be, and so we have to read it together with subsection (2).
Now, further, for contextual support of their construction, the appellant then draws on other subsections – subsection (3). That is the position where a child is 16 years or older and there has been an ability – a defence essentially if:
the defendant proves that he or she believed on reasonable grounds that the child was of or over the prescribed age –
Subsection (7), the definition of a sexual offence of:
a substantially similar offence against a previous enactment.
They rely on the fact that the offence is only made out where it is proved that the acts of sexual exploitation occurred over a period of not less than three days, and that the complainant must be of a prescribed age, that is, what is pointed to in support of the appellant’s construction is a series of what we might call temporal requirements under the Act. They say that, well, unless you can identify sufficiently the particular occasions you cannot sensibly engage with these temporal requirements. That does not follow.
The act itself, as a matter of fact, obviously occurs at a particular time on a particular occasion. That does not mean that the evidence has to have that same temporal precision in time and indeed in space. All that these factors mean is that if the prosecution is unable to prove beyond reasonable doubt that the child was under the prescribed age, say, by insufficient evidence showing the period over which the acts occurred, or that the acts occurred over a period of not less than three days and we were discussing the Fiji example yesterday which I will come to, it will not have proved the offence.
That is just the prosecution’s lookout. It does not mean that it cannot be engaged with. It is just that by permitting more generalised evidence, the prosecution still is going to have to work within certain parameters. Now, we also rely, as a contextual indicator, on subsection (4)(c) and (5). These are the safeguards on which this model of drafting relies against duplicity and double jeopardy, and if the appellant’s construction was right and specific occasions were required to be proved, these subsections would be entirely unnecessary. So we say these provide contextual support for the construction that we advance.
Now, the appellant also asserts more broadly, and this is now coming back to the cases that I started with, that generalised evidence is incapable of supporting proof beyond reasonable doubt that a particular occasion occurred on which all relevant elements occurred and that was developed in answer to a proposition put by your Honour Justice Keane yesterday. Your Honour said in the Fiji holiday context that what if the complainant had said every night for two weeks, why is that not sufficient to prove more than one act over a period of three or more days?
The answer that your Honour received from my friend was that a result of deductive reasoning, it is not enough to deduce it as a matter of logic. Your Honour’s response was where is the maths? My friend’s answer, with respect, cannot be accepted; indeed, it is untenable. Of course we can reason to proof via deductive reasoning. We can reason to proof via inferential reasoning – Chamberlain’s Case. Deductive reasoning is potentially so much stronger than that. If you deduce to a necessary conclusion, there is no problem of proof with that.
The fallacy is demonstrated by the observation that where you have generalised evidence – course of conduct, explaining the acts, period of time, below the prescribed age, all those matters that are sufficient to make up the offence, is that a jury may accept the complainant’s evidence in their entirety. If that is the case, the offence is made out.
Chief Justice Kourakis in the judgment on appeal gave an example at paragraphs 37 through 38. This was the subject of some observations yesterday. The example was given at 36 and then he discussed how that would be capable of making out the charge at 37 and 38. There was some discussion yesterday about paragraph 37 at the top of page 12 of the judgment:
When given to a jury, the extended unanimity direction requires only that the jury, unanimously or by majority, be satisfied that the offending occurred as testified by the complainant.
There was some discussion about that section. That is clearly referring to the example that was given back in paragraph 36. Of course, we say, this case is equally such an example. As to this, I think I need to just speak to the evidence itself because it is put against us that in any event the evidence was not capable of establishing a case beyond reasonable doubt which, of course, would be relevant potentially to the orders that this Court might make.
Can I ask your Honours to take up our annotated submissions? With respect to the Fiji trip it is not the case on any view that the occasion of the Fiji trip was incapable of supporting a conviction. At paragraph 51 of our written submissions we explain why, on the evidence, if we take the complainant’s evidence at its highest, there is a case to answer.
His initial evidence was that he thought it was in 1981 and he reasoned from that that it was having been 15 at the time and the necessary implication was that it occurred before his birthday because he was 15 in 1981. He turned 16 on 1 November 1981. He accepted then in cross‑examination that it could have been 1982. That does not cast doubt on the proposition that - the necessary inference that it occurred before his birthday. Now, his birthday was right at the end of the year so, even if when he accepted that it could have been 1982, taken at its highest that still allows a case to answer.
That is then supported by the evidence of the complainant’s mother and I will not take your Honours to the passage for this, page 98 through 99 of the appeal book, the mother gave evidence that in the year after that trip they took the boys to Fiji on children’s fares. She was confident that the trip – that trip was in 1979 and 1980. She had said 1982 in a declaration that she had provided by trial. That is at page 104 of the appeal book. Then she had found her old passport. Her mother had been in a nursing home when they went. That is page 105 of the appeal book, and had passed away in January 1982. So, on the mother’s own evidence they went to Fiji while grandmother was still in the nursing home but she had passed away in January 1982 so on taking the mother’s evidence at the highest, still, the complainant had to have been under 17 years of age.
Now, as to the course of offending in bedroom two and bedroom three, my friend made some submissions about that yesterday and her written submissions appear really in reply paragraphs 8 and 9. The appellant submits at paragraph 9 of the reply that while B’s evidence was that - while B gave evidence that the offending in bedroom three, that is the first set of offending, started when he was 12 maybe 13, my friend pointed out that it was an agreed fact that the appellant graduated from his teaching studies in 1978 and did not start teaching until 1979 during which year B turned 14 and that B’s family only met the appellant after he finished his teaching studies.
The problem, with respect, with that submission is that B’s birthday again is 1 November 1965 so the appellant had been out of his teaching studies for nearly a year before the complainant turned 14. That does not prevent any finding that the offending occurred in bedroom three and indeed, of course, it is still an offence even if he was 14 but it does not cast doubt or particularly compromise B’s evidence in that way in any event.
Now B’s mother’s evidence about who was sleeping in bedroom three when the appellant started sleeping over is at page 96 of the appeal book, lines 8 through 21 and what the mother says is that it was the brothers, B and S. The evidence was:
Q.When Mr Hamra started coming around on the weekend you mentioned that he slept over and had a sleeping bag.
A.Yep.
Q.Where would he sleep when he slept over on weekends.
A.Well, he usually slept in bedroom 3 in between the beds of [B and S].
Q.When Mr Hamra started to sleep over on the weekends, was your mother still staying at the house.
A.No.
Q.So at that point in time who was sleeping in bedroom 2 when Mr Hamra started to sleep over.
A.It would have been [B and S].
Q.Sorry, bedroom 2.
A.Bedroom 2, that would have been [G].
Now, that puts G in bedroom two on the basis that G had moved in when the grandmother had moved out, and that is at page 93 of the appeal book. There is an inconsistency because B, at appeal book page 14 from lines 31 through 15, line 19 says that he moved into bedroom two when grandmother moved out and that G moved in some time later.
But the point of this is this is a question of a case to answer. What we need to do is take the evidence at its highest and at its highest, on the evidence of B, he was in bedroom three when the appellant started sleeping over and then he later moved to bedroom two. On its highest there is no question that there is a case to answer. We do, however, accept that there is nothing by way of timing to locate the events at Kurralta Park and that on the face of the evidence there is nothing to show – to link that to a period when B was under 17 years old.
The other aspect of that is that B’s evidence was, in the passage I just took your Honours to, that having started in bedroom three when the appellant came to stay, he moved into bedroom two when he was 13. So, that put all of the offending at the highest prosecution case in bedroom three when B was 13 and the offending in bedroom two, which the evidence was occurred every time the appellant stayed over, was from the age of 13. So there was no question that there was a case to answer, in my submission, in respect of the offending in bedroom three, bedroom two and, indeed, the Fiji trip.
Coming back to the construction point as to purpose, of course, the purpose is notorious. We were taken to the second reading speech yesterday but, clearly, this section is designed to overcome the obvious difficulties in prosecuting the recurrent sexual abuse of children which arise out of the common law requirements of particularity and the difficulties in the complainant’s recollection as to the peculiar circumstances of each occasion.
My submission is that contrary to, which I will come to, the position expressed by Justices Sulan and Stanley in the case of Johnson, it does address that paradox whereby under ordinary common law principle the more persistently and pervasively an offender sexually abuses a child the more readily that offender will evade prosecution. That is the Parliament’s prerogative to determine where that public interest lies or at least rather the balance of the public interest lies and it has altered it in facilitating the prosecution of such offending at the expense to some degree of the ability to answer the charge. It is not usual and it is not common but that is what Parliament has done and even Justice McHugh in KRM recognised that was within Parliament’s purview, should they choose to do it, subject to Chapter III of course but there is no question of that arising here.
Can I speak then briefly to the notice of contention. The Court of Criminal Appeal in this matter convened a Bench of five because the Director signalled an intention to argue to argue that the court’s decision in R v Johnson [2015] SASCFC 170 was wrong, at least insofar as it dealt with a count of persistent sexual exploitation. The Chief Justice in this case, at paragraph 49, page 229 of the appeal book, characterised Johnson as reflecting a finding by the court that the evidence had failed to prove beyond reasonable doubt the commission of two or more acts of sexual exploitation and that it did not touch the question of principle.
I find myself curiously here in agreement with my learned friend. Johnson makes that clear statement to the effect that it is necessary that the evidence reveal at least two acts to have occurred in circumstances sufficiently distinguished that they can be separately identified and the evidence in Johnson is set out in the judgment of Justice Peek at paragraph 102 and it did not manage to identify two separately identifiable occasions. The plurality - the statement is at paragraph 2 - that is, Justices Sulan and Stanley, said:
If the evidence rises no higher than a general statement such as that given in this case, even though the jury may be satisfied that there occurred numerous acts of sexual exploitation over a number of years, but it is impossible to identify two or more acts so that the conclusion can be reached that the jury, either unanimously or by majority, agreed on the same two or more acts, then the defendant is entitled to an acquittal.
The plurality in support of that quoted from the passage in KBT that established the requirement of extending unanimity and the problem with this, of course, is that if the jury had unanimously – or the majority accepted the evidence in its entirety, we say that would have rendered it relevantly unanimous as to the actus reus. But that conclusion in Johnson is dependent on reasoning from the requirement of extended unanimity which is the wrong course, with respect, and that as a statement of principle is aptly demonstrated by paragraph 11 of the reasons that the…..saying expressly that the legislature did not achieve what it set out to achieve.
Justice Peek’s analysis emphasised again the requirement of extended unanimity as this source of the requirement of proof and my friend took the Court yesterday - that is at paragraph 107 - and my friend yesterday took the Court to paragraph 111 where his Honour said:
there must be a minimum amount of evidence adduced by the prosecution to enable jurors in the jury room to delineate two offences (at least) and to agree that those two offences were committed.
The point is Johnson, with respect, wrongly reduces section 50 to an offence of multiple, delineable acts and it does so absent any consideration of the effect of section 50(2) in context with subsection (4) and we say that it is wrongly decided.
NETTLE J: Whether evidence is general or specific, the jury must still be satisfied, must they not, at the end of the day, that there were not less than two underlying acts separated by not less than three days?
MR BLEBY: Yes, your Honour, and Justice Keane’s example yesterday of a slight modification of the Fiji example is an excellent, with respect ‑ ‑ ‑
NETTLE J: If the evidence is every day for two weeks then no problem at all or something less even.
MR BLEBY: Yes, if the evidence is over a course of a year, on most weekends these acts were perpetrated upon me when the babysitter came to stay, that is enough.
NETTLE J: Yes.
EDELMAN J: If a question were then to be put to the jury in a circumstance like that, how would a question be put - or is your submission that it would be nonsensical to put a question to the jury ‑ ‑ ‑
MR BLEBY: In the Chiro sense, is your Honour asking?
EDELMAN J: Yes.
MR BLEBY: It really highlights the problem that I advertised in Chiro yesterday of the difficulty then of prompting more questions - well, what do you mean by that, and reducing it to a narrative of the evidence. So to do it, you would probably start with, but what offences or what acts are you agreed upon and the answer came back, well, let us assume it was a constant modus operandi of a single type of act for the course of a year of that act, the answer is not necessarily helpful.
This is why ultimately I was submitting that while the CCA recognised in Chiro that clarity could result, depending on the nature of the charge, the risks they apprehended remain real and speak against the exercise of the discretion. So, your Honour, I have just taken that question as an opportunity to push my case in Chiro once again but I think the point is clear.
NETTLE J: Mr Solicitor, could I just stay with that for a moment? If one looks at the information in this case at the first page of the appeal book, what do you say would be difficulty in the judge, after he or she has taken the general verdict, asking the question of the jury, do you find that the accused did, between 30 October 1977 and 1 November 1982, commit more than one act of sexual exploitation of [BT], being a child under the prescribed age?
MR BLEBY: But the verdict of guilty would answer all of that, with respect.
NETTLE J: Not necessarily because there is a second set of particulars in the next paragraph.
MR BLEBY: Certainly.
NETTLE J: Yes – “It is further alleged that”. It might be that the jury do not find the first particularised allegation but do find the second.
MR BLEBY: Well, where it says “It is further alleged”, it says that “the acts of sexual exploitation” - the use of the definite article I think refers it back up to the first paragraph.
NETTLE J: Yes, I see.
MR BLEBY: So these are the particulars and so I think what my friend would in comparison need to take forward is which particulars do you find proved beyond reasonable doubt.
NETTLE J: So is one to read this as alleging that the act of sexual exploitation is the placing of his penis, as is there alleged?
MR BLEBY: That is how I read the information, yes.
NETTLE J: This does not suffer from the difficulties that Chiro does.
MR BLEBY: Well, no, because there are no cases in Chiro – where they were specific, like 4, 5 and 6 in Chiro, single instances, whereas, 1, 2 and 3 were on the more than one occasion did X.
NETTLE J: We just do not have a Chiro difficulty here.
MR BLEBY: It is not the same as Chiro at all, your Honour.
KIEFEL CJ: The range of conduct is not quite the same as Chiro.
MR BLEBY: No, your Honour.
BELL J: Can I inquire, Mr Solicitor, just in going to the judgment of the Court of Criminal Appeal at appeal book 226 in paragraph 37 – now, I appreciate that what the court was here dealing with was a “no case” determination in a trial by judge alone, but the Chief Justice went on to discuss the giving of directions in such a case and it is just not quite clear to me what is being said in that paragraph where his Honour says that:
the extended unanimity direction requires only that the jury, unanimously or by majority, be satisfied that the offending occurred as testified by the complainant.
MR BLEBY: That is a reference back to the example given in paragraph 36 and the ‑ ‑ ‑
BELL J: So, that is how one understands it, that it is ‑ ‑ ‑
MR BLEBY: Yes, yes, it is referring specifically to that and these are all, if your Honour can see, an example of generalised evidence being given which his Honour is saying is perfectly capable of supporting a conviction and in these situations where the same two acts - to use the KBT formulation of extended unanimity, becomes a bit meaningless. You have to massage the direction to be meaningful to the evidence. An example of generalised evidence being given which his Honour was saying is perfectly capable of ‑ ‑ ‑
BELL J: Yes.
MR BLEBY: ‑ ‑ ‑ supporting a conviction. And, in these situations where to say the same two acts – to use the KBT formulation of extended unanimity – becomes a bit meaningless. You have to massage the direction to be meaningful to the evidence. His Honour is clearly referring back to that example.
BELL J: Yes.
MR BLEBY: At paragraph 38, we see some slightly more complex examples which are instructive, with respect to his Honour. I propose, if there is nothing further, to address the question of permission very briefly. The Court in this case, of course, did make an order granting permission. This is not a Malvaso v The Queen situation where there was no jurisdiction to proceed to the appeal.
BELL J: We get that from the order.
MR BLEBY: From the order itself, your Honour.
BELL J: Yes.
MR BLEBY: I will bring it up, it is in the books. I beg your pardon?
MR McDONALD: At 259.
MR BLEBY: At 259 – I am obliged to my friend. Then, as far as the reasons are concerned, all we have is this. Chief Justice Kourakis commenced addressing this case as an application for permission to appeal – that is paragraph 2. Justice Nicholson expressly agreed with the Chief Justice’s proposed disposition of the application for permission for the reasons given by the Chief Justice. That is at paragraph 136, page 236. That must be taken to mean – this must be taken to mean – that the merits of the substantive appeal warranted a grant of permission. Justice Peek, in the minority as to the disposition of permission, discussed at some length, the appellant’s submissions and impact of double jeopardy principles. Your Honours will see that at paragraphs 113 to 121, pages 249 to 253.
So, the position is, permission was granted and reasons were given. The substance of the complaint can only be of a failure of the majority to address the appellant’s submissions as to why permission should not be granted. Our submission, on the reasons, is that it can only be clear on these reasons that the considerations the appellant raised against the grant of permission did not outweigh the significance of the error of law identified. That, as your Honour the Chief Justice commented yesterday, is manifested in the convening of five judges. That was at the request of the Director for overturning Johnson as opposed to the heart of the question of the error that was asserted. In circumstances where the grant of permission is always discretionary – but we rely – and I will not take the Court to this, but the observations his Honour Justice Mahoney in Housing Commission of NSW v Tatmar Pastoral Co [1983] 3 NSWLR 378 at 386.
EDELMAN J: We do not have in the appeal books anywhere any of the oral or written submissions that were made on this point, do we?
MR BLEBY: No, your Honour. So, where the question here was simply – given the error that was identified – should permission have been granted, our submission is the Court’s reasons are perfectly clear for purpose. The error in construction, the Court found, warranted a grant notwithstanding the double jeopardy principles which, of course, are always in play. We only come then to the merits of the grant if the confidentiality has been in error in failing to disclose some aspect of reasoning. But, we say, this point ends where I finish here.
If we have to go on and say should permission have been granted because this Court will find error in the reasons, it seems that the appellant really relies on three matters: double jeopardy – we do not suggest that double jeopardy principles do not get fed into the discretion. What we articulate at paragraphs 57 to 59 of our written submissions is that when, looking at those sorts of countervailing considerations, it can be looked at in terms of the continuum. It might be that there is simply a dispute about whether a reasonable doubt was really available. It might be a very minor error of law. In such a case, the jeopardy might be such that a court might properly refuse permission but it is still discretionary.
Ultimately, we embrace the comment of your Honour the Chief Justice yesterday, that any error can warrant a grant of permission. But when a court comes to reason, the more serious the error, of course – and the greater the impact on the prosecution case – the more likely, one would expect, a grant would follow. The error, of course, in this case was that the trial judge erred in importing the offence requirement that it cannot be proved unless the acts of sexual exploitation are shown to have occurred. We say it is a correct formulation in circumstances so peculiar that each occasion of abuse can be separately identified. Let there be no mistake about this. This was found to be an error of law in terms by the Court of Criminal Appeal, Chief Justice Kourakis at paragraph 53 describes it as such. So, your Honour should not accept the submission to the contrary.
This is the type of error, misconstruction of the section, that enters that difficult zone described in Craig v South Australia – reiterated in Kirk – of approaching jurisdictional error of an inferior court, in that the court, thereby, misconceived the nature of its function. I say “approach”, it is probably not necessary that I weighed into that very difficult question of whether it amounted to jurisdictional error in this case. But, because we are clearly approaching that zone, it highlights the importance of the significance of the error, such that it makes it an excellent candidate for permission because we are at a point where, arguably, the accused was not put on his trial for the offence.
That is the underlying idea of double jeopardy as described by Justices McHugh, Hayne and Callinan in Pearce v The Queen 194 CLR 610 at paragraph 10. The underlying idea of double jeopardy was never actually engaged. Sure, there was some jeopardy in that the accused had to go through the cost and usual accoutrements of a trial, but if the trial judge was misconceiving the offence creating section from the outset ‑ ‑ ‑
BELL J: It seems to me to involve, perhaps, an approach that fails to reflect historic ideas of what double jeopardy is all about and the notion of one being vexed by the state in relation to an allegation on more than one.
MR BLEBY: Your Honour, I am not saying there is no jeopardy.
BELL J: Yes.
MR BLEBY: All I am saying is the impact of double jeopardy when viewed in its various strains is somewhat reduced, or may have been somewhat reduced, in this case and the only reason I am putting it in those terms is to highlight the seriousness of the error.
The second consideration raised in opposition to a grant is it was put that the trial judge may have acquitted, in any event. That falls off the back of the misconstruction of the section and we cannot speculate as to that as to how the trial judge would have reacted properly directed as to the impact of the section. The third consideration is said to be the conduct of the DPP in the trial. Now, I pause there. We still say, notwithstanding the seriousness of the error in any event has allowed…..a proper grant and permission and there can have been no error in the grant.
But just on that question of the DPP’s conduct, Johnson is a unanimous Supreme Court decision. It was binding at the time on the trial judge, if it applied. It was not ‑ the prosecution case was that Johnson should be distinguished. It was not appropriate, in my submission, to refer a question to the Full Court about Johnson because all that would achieve would be an advisory opinion on the applicability or distinguishability of a case that on its face was binding.
To correct one thing that my learned friend said yesterday, with respect, the Director did not run the case on the basis that Johnson was
correct. He ran it on the basis that it was binding. Following the acquittal, the Director requested a bench of five in order to challenge the correctness of Johnson. That is an orthodox outcome.
Then I also make this submission. The availability of a reference procedure such as in Part 11, Division 2 of the Criminal Law Consolidation Act has no bearing on the question of whether permission should be granted. That submission by my friend comes from the judgment of Justice Peek in R v Brougham 122 SASR 546 at paragraph 79 and following. We answer that at paragraph 65 of our written submissions.
The short point there is where the reference procedure is available in respect of any acquittal, the facility of permission by appeal is limited to judge alone or directed acquittal. Neither facility is subordinate to the other. They serve different legislative ends. One is to clarify the law; one is to enable certain circumstances which in the judgment of the Parliament should be allowed to run a retrial following acquittal; again, a big step for a Parliament to take, but taken nonetheless.
There is no express fetter on the discretion of the Director to seek permission and if the Director is of the view that the public interest warrants a retrial, especially on serious offences, he can ask and then the court can simply assess that request on the usual considerations. But that the Director has another facility, a more general facility available for clarifying the law to quite a different end is, in my respectful submission, neither here nor there, and Justice Peek’s comments in Brougham to the opposite effect are, with respect, not correct. They should be held to be not correct.
BELL J: Given the selection to bring an appeal against the acquittal, the only orders that might be made are the orders provided in 353(2a)?
MR BLEBY: Yes, your Honour. So, in summary, we say we never get to these questions because the reasons disclose no error but, in any event, it was a clear case for permission and there can have been no error in granting it. The error that the Director complained of is fundamental and compromising and the very history of the conduct of the case, as the Chief Justice recognised, demonstrates the sufficiency of the case for a grant. May it please the Court.
KIEFEL CJ: Yes, Mrs Shaw.
MS SHAW: If the Court pleases. I might perhaps deal with the matter of Hamra first, just in terms of it being fresh in the Court’s mind. Can I perhaps start with the last submission and submit that, although we do not have the submissions below, including the written submissions in the appeal books, they are reflected in the reasons of Justice Peek at appeal book 253 and 255, in relation to the issue of whether or not permission should be granted.
His reasons apply current law, they deal with the matters that were raised below and, in particular, in our respectful submission, the exceptional nature of an appeal against acquittal is confirmed because it only applies in a judge alone trial. A jury still has ‑ a conviction by a jury is not the subject – I am sorry, an acquittal by a jury is not the subject and cannot be the subject of a Crown appeal.
BELL J: But there can be an appeal where there is a directed verdict of acquittal, can there not?
MS SHAW: That is so. If it is a directed ‑ your Honour is correct, I apologise, if there is a directed verdict by the judge as a matter of law or if the judge acquits. Your Honours, in our respectful submission, the matters raised by my learned friend really are obviously not reflected in the judgment. There is no suggestion or indication that the court below turned their mind to those matters, apart from Justice Peek.
There is no suggestion the court considered double jeopardy. There is no suggestion the court considered the way the Crown conducted the case below, namely, as my learned friend just said, presented a case against my client on the basis that Johnson was binding and that, bearing in mind the uncertainty, the defence requested a reservation of a question of law ‑ that is reflected in the judgment, that that is agreed that that is what occurred ‑ and the Crown did not agree to that course.
In our respectful submission, the course of the trial below was governed because there was no reservation of a question of law and if Johnson did not apply then clearly there would have been no basis for a case to answer. In fact, at the time of the final submissions that were made, the appellant made it plain that he had elected not to give evidence and presented written submissions in the alternative should the no case to answer fail. So, for all intents and purposes, the trial was complete.
The way in which the double jeopardy consideration looms large here and the failure of the Crown to seek to reserve or to join in reserving a question before verdict is that effectively this accused or this appellant on a retrial would face a different case and, in our respectful submission, that is the very purpose of a question of law reserved. They are advisory opinions that can effectively assist a judge as to what is the law that will govern, for example, the construction of section 50, a clear legal question and, more importantly, whether Johnson was binding.
So, in our respectful submission, the referral mechanism plainly is available to the Crown as a choice if indeed it wishes to conduct a case on a basis which in fact is contrary to what it in fact believes or it will subsequently contend is the law, so, in our respectful submission, the failure of the Court of Appeal to consider permission, bearing in mind the history of this matter, and the current position of the Solicitor‑General that indeed Johnson is wrong.
So, it was not that the trial judge made the error; it was that at the time at which he handed down his ruling, the Crown had conducted its case on the basis of Johnson and informed him it was binding. His ruling was not limited to simply a question of law. It involved his evaluation of the evidence, whether it could be differentiated, and he referred to the inconsistencies that were plain between the evidence of the appellant’s mother and the appellant.
Your Honours, if I can then turn to the matter of Hamra, the matters for discussion about KRM and KBT, it is important to bear in mind that in KRM, in our respectful submission, the ground of appeal related to the failure to give a propensity warning. The question of the construction of 47A was not indeed raised as a point of law by that appeal, and my learned friend, Dr Bleby, clearly accepts that Justice McHugh and Justice Kirby are very clear that in relation to the construction of 47A the principle of legality or the fundamental principles of the right to an accused trial need to be engaged and we submit, in effect, to say that unless there is a clear abrogation of the accused’s right to know the subject matter of the charge, then the section will be construed on the basis that indeed he is entitled to a fair trial in accordance with that principle.
So that the discussion about 47A to some extent was peripheral and, in our respectful submission, importantly, neither any of the Justices, I should say, disagreed with KBT and it was seen as analogous by all ‑ and I refer, for example, to Justice McHugh at footnote (28) at paragraph 41, Justice Kirby at paragraph 81 and Justices Gummow and Callinan at footnote (93), where they also include section 74 of the South Australian provision which was the precursor to section 50.
In our respectful submission, even though the issue of section 47A was not raised directly, the passages from Justices Gummow and Callinan that the Court was taken to at paragraphs 67 to 68, we submit are not clear in the way my learned friend suggests, that proof of particular acts is not required. What we submit is that if one reads paragraph 67, it is plain that the Court is maintaining that:
The section requires proof of three relevant acts.
In going to the second question, namely, what does it demand by way of proof, then the two Justices note that it is then – subsection (3) refers to what is not required. Paragraph 68, upon which my learned friend placed some store, is directed towards what particulars, effectively in relation to those occasions, an accused is entitled to. So, at paragraph 68, having acknowledged that it is necessary for proof of three relevant acts, their Honours go on to say:
There are further questions to be considered. Does the use of the word “occasions” signify a requirement of proof of circumstances and places sufficient to enable the accused to know precisely how, when and where the accused did the three unlawful acts?
In our respectful submission, we do not suggest our provision requires the accused to know precisely how, when and where the accused is said to have done the three unlawful acts. So, in our submission, the judgment of Justices Gummow and Callinan is consistent with KBT, that the section does not do away with the requirement that particular occasions must be the subject of the prescribed acts in the section, that is in section 50(1) where it is accepted – section 50(1) – where it is accepted the actus reus is. My learned friend referred to in that respect KBT and the passage at 422. The introduction to that paragraph on 422 specifically addresses whether or not this is a course of conduct offence, and the plurality state:
The offence created by s 229B(1) is described in that sub‑section in terms of a course of conduct –
Our section does not in its terms describe a course of conduct:
and, to that extent, may be compared with offences like trafficking in drugs or keeping a disorderly house. In the case of each of those latter offences, the actus reus is the course of conduct which the offence describes. However, an examination of sub‑s (1A) makes it plain that that is not the case with the offence created by s 229B(1).
My learned friend, as he says:
it is clear from the terms of sub‑s (1A) that the actus reus of that offence is the doing, as an adult, of an act which constitutes an offence of a sexual nature in relation to the child concerned on three or more occasions. Once it is appreciated that the actus reus of the offence is as specified . . . a person cannot be convicted –
unless there is unanimity. My learned friend then goes on to acknowledge that the plurality state on 423:
It does not detract from the need to prove the actual commission of acts which constitute offences of a sexual nature.
In our respectful submission, it does not meet what we submit is the principle held in KBT to suggest that the result was to send it back, that that somehow led to the view that this case did not assist the appellant. Your Honour, in our respectful submission, if your Honours go back to the outline of the evidence at 421, one can see that it is clear that there were six categories of evidence that were presented by the complainant.
The matter came to the High Court from the Queensland Court of Appeal because the Queensland Court of Appeal had held that the trial below was flawed in that there was no extended unanimity direction but applied the proviso. So the question for the High Court was whether or not the failure to give an extended unanimity direction meant that the proviso ought not to have been applied. So, in concluding that the proviso ought not to have been applied, at page 424, in determining that it ought to be remitted, bearing in mind the disagreement with the Court of Appeal below, the Court held:
Indeed, it may be that, had the jury been properly instructed, they would have concluded that the nature of the evidence made it impossible to identify precise acts on which they could agree. It follows that [he] was deprived of a chance of acquittal –
So, in essence, the reason it was sent back was that there had been no trial – or no consideration as to whether or not it was possible or impossible to differentiate. That was not the role of the High Court on the appeal. In our respectful submission, KBT, as his Honour Chief Justice Kourakis acknowledges, is analogous. It, as with our section, has the actus reus as a requirement to prove, (2) in our section, at least two acts, and importantly in our section, three days apart.
In order to prove that the acts are three days apart, we submit that therefore those occasions must be identifiable in some way. We say it does not have to be any circumstances surrounding the offence beyond making it possible for the section 50(1) actus reus to be the subject of a trial. Your Honours, in relation to KBT, we also refer to Justice Kirby at 432, point 8, who agrees with Justice McHugh that despite what might be the description of the offence, the section does not achieve trials based on generalised assertions.
We submit that section 50(2) does not qualify or derogate from the obligation in section 50(1). All it contemplates is that there may be circumstances, as was considered in KBT, where the separate acts may not be able to be properly particularised ‑ properly particularised in the way in which an accused might seek those particulars, as discussed by Justices Gummow and Callinan in KRM.
In our submission, the difference between the identification of an occasion as compared to its proof is a critical one, because 50(1), in compliance with the principles of legality, does not make it plain that what is abrogated is the entitlement of an accused to know the subject matter of the charge and therefore we submit it does not import a trial based on generalised allegations. In our submission, it is not possible to deduce from a relationship that, by way of deductive logic for the purposes of the criminal law, that during that relationship those two separate offences would have occurred, because that is in essence to convict someone on a notional basis.
We accept, as has been pointed out, that if the witness said it happened on Monday, Tuesday, Wednesday, clearly occasions are identified. We submit that where it differs and what happened in this case was that the evidence of the complainant was it would have happened. In relation to the Fiji trip, what the complainant said was effectively in terms of what occurred during that period, it was the same as what had occurred before. But, of course, what had occurred before were, as evident from the particulars, apart from the undifferentiated acts of fellatio, four separate kinds of acts of sexual exploitation alleged against him. So to say that it was the same as what happened before again does not identify, and it is not capable of identifying, an act.
Your Honour, in our respectful submission, deductive logic going to the next stage of deducing from that evidence that he said it occurred during those weeks repeatedly, the same as before, we can deduce from that that it was one of the four acts or any one combination of them. It is not a basis upon which, we submit, should be imported into the construction of this section. We submit that, as was held in KBT, that indeed these are a provision where the actus reus is contained in section 50(1) and that the extended unanimity direction is not a rule that arises outside of the section. It is actually a rule that is a function and a result of the need to prove two separate occasions.
What it imports is really if you have generalised evidence you can never know whether the jury are agreed on the same two occasions. And the same two occasions must, as we have said, satisfy the elements of an offence, a section 57 offence. The jury must be unanimous as to the proof of each of those occasions and they must be unanimous that they are three days apart. Unless you can identify a particular occasion then the jury cannot be unanimous.
In our respectful submission, the extended unanimity rule, as it applies under this section, and obviously has been abrogated elsewhere, reflects that under this section the actus reus cannot be proved by generalised evidence. A specific amendment might well do that, and that has obviously occurred, as your Honour Justice Edelman has pointed out, but the current law in this State, in our respectful submission, up to the case of Hamra, was correct, that KBT was analogous. His Honour the Chief Justice said it was analogous, but his Honour’s judgment in some respects, inconsistent in some ways, does not address the way in which KBT was indeed binding on the court.
I should just point out to your Honours – I apologise – that in relation to the question of permission, all the matters raised by Dr Bleby, none of those matters obviously appear in the reasons for judgment.
Can I then turn to the matters in relation to the appellant, Mr Chiro. Dr Bleby’s submissions were advanced on the basis that it was significant that, firstly, the prosecution has an unreviewable discretion; and, secondly, although in a case like the present, an accused might be exposed to punishment for underlying offences not found proven by the jury, but that the judge’s finding beyond reasonable doubt is a sufficient safeguard. In our submission as to the first, the fact that the prosecutor has a discretion is one thing, but that does not entail that the exercise of that choice does not have significant consequences in a case where the judge directs the jury in terms of a subset of a suite of alleged offending of varying seriousness.
As to the second, it is not a sufficient answer, in our submission, to rely upon the necessity for the judge to make findings beyond reasonable doubt if that involves an accused who has elected for trial by jury being potentially exposed to punishment for underlying offences that the jury may have not found proved or indeed may have positively rejected.
Following on from this, the respondent submitted that the question from Cheung was not so much whether the sentence was consistent with the verdict but whether it was not inconsistent with the verdict. In our submission, however, Cheung is concerned with the necessity for the facts found in sentencing for an offence to be consistent with the jury’s verdict. But the present case involves an anterior and more fundamental question: what is the offence for which the defendant is being sentenced? Because of the unusual form of this bespoke provision, as your Honour Justice Bell accurately described it, the verdict does not identify the answer to the anterior question which reflects the De Simoni concept that one should not be punished for an offence that the jury or trier of fact has not found proved beyond reasonable doubt.
EDELMAN J: Ms Shaw, is the effect of your submission on that point that, if a court is required then to sentence on the basis of the minimum possible acts that constitute the offence without any answer from the jury, then that has the effect that the court must not have regard to any other potential criminal acts other than those minimum possible acts.
MS SHAW: It does, and that is a function of two matters. One ‑ ‑ ‑
EDELMAN J: Sorry. Just to finish the question: if that is the case, how is that consistent with section 10(1)(c) of the Criminal Law (Sentencing) Act, which requires that the court must have regard:
if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character –
to that whole “course of conduct”?
MS SHAW: There are two matters. The first is: if the Crown elect to put a number of particulars which are a course of conduct into the indictment but then agree or do not dissent from a trial judge directing the jury on only a subset of those particulars, and therefore one can never know whether in fact the accused was acquitted of the other particulars. All one knows, in the absence of a question, is that two were satisfied, and here the direction was, at an earlier occasion that the court was taken to, that two acts of kissing alone could support the verdict.
So the effect of the Crown choosing to lay a section 50 instead of laying separate counts, as in four, five and six, which were easily able to be laid, but putting them all into a single information has the consequence that if the judge directs in that way, then the result is that the sentencing court is left with a verdict that tells you that what is proved is the two counts.
And the purpose of section 55, again – that is, the autrefois section – is to reinforce that, yes, the prosecution have a discretion. But a consequence of that discretion is if they choose to elect to put a myriad ‑ a spectrum of offences of a wide range in the information, then they may not be able to subsequently – and the direction is for proof on the basis of two, because the court will not subsequently know whether indeed the accused was acquitted of those, then the issue arises, when it comes to sentencing, can the court treat those unproved offences or those offences that are not patent from the jury verdict as surrounding circumstances? But it cannot punish for them. That is the De Simoni principle.
They might inform and they might be relied upon as surrounding circumstances but they cannot be relied upon to increase the penalty to which the accused would otherwise be liable. And we submit that this is not a matter where, yes, the law permits the Crown to do this, therefore the law takes a strict approach to the consequences. What it does is it deals with the overall fairness of the matter, the principle of legality, and what indeed can one say, in accordance with De Simoni, has actually been proved? And we accept that a court can take into account, under section 10, any relevant sentencing matter. The only question in this context is does it breach De Simoni, bearing in mind the way that the trial was conducted and the way in which the trial judge directed the jury as to the basis for a verdict.
Your Honours, in our respectful submission, the Director has discussed whether or not the analogy with a drug importation was apposite and, in our submission, the relevant points of distinction, to summarise, are, firstly, as your Honour Justice Bell has raised in argument: what was in issue in a case like Cheung was essentially the different modes of establishing a single act of importation of a quantity of drugs, whereas what is involved here is truly stand alone acts, each of which constitutes illegal conduct. There may be a single victim, as Dr Bleby said, but the distinction is a real one, nevertheless,
Secondly, and self‑evidently, while a Cheung case may involve different indicia of a single act of importation, we are concerned in the present case with potentially curative forms of conduct, each of which would merit separate punishment. And, thirdly, and critically, there is a unanimity requirement in the present case.
Thirdly, can I come to the respondent’s submission that, in effect, while there might be merit in asking questions in section 50 cases, the present case does not reveal error by the Court of Appeal. In our submission, this response cannot be sustained for the following reasons. First, the issue in the Court of Appeal was whether the trial judge had erred. The trial judge denied the existence to herself of any relevant discretion. Her Honour treated the ascertainment of the basis of the jury’s verdict as foreclosed by the case of N, SH. That case turned on a wrong and superseded understanding of section 50.
In N, SH the view was taken that asking the jury the relevant question might produce an inconsistent answer but, in view of the unanimity direction that is now accepted as being necessary, that is simply wrong. It is clear, therefore, that the trial judge proceeded on a wrong basis, the Court of Appeal’s error was in failing to identify this error. We are not concerned with whether the Court of Appeal had some broad discretion, but cannot be shown to have miscarried. But further and in any event the Court of Appeal’s analysis was, even if to be approached in House v The King terms, based upon a wrong proposition that there was little difference between manslaughter and the present context, we submit that error permeated the Court of Appeal’s reasons.
Finally, we submit that it is somewhat unreal to suggest that the Court of Appeal’s judgment leaves open the possibility of asking questions in this context. The fact of the matter is if it was not an appropriate case here it would never be appropriate to ask questions in the section 50 context, despite the obvious dilemma that this bespoke provision throws up.
We submit that because, as the respondent seems to acknowledge, this was a case where the evidence identified distinct occasions, there was no difficulty in asking questions as to which occasions were found proved. Secondly, it was a case where there was a range of seriousness of the underlying conduct and, thirdly, there was every reason to think that the jury may not have proceeded on an all or nothing basis.
Although Dr Bleby submitted it was impermissible speculation ‑ and your Honour Justice Edelman suggested that in theory it could be fortuitous whether the jury, for example, just considered the less serious offences first and then stopped deliberating – that is, clearly, we submit not what happened here. The fact the jury said they had reached an impasse shows that they had considered all the offending and not reached a unanimous position.
Fourthly, and although Dr Bleby took your Honours to one instance where the judge’s directions contemplate the possibility of a combination of one act of kissing and one act of fellatio, at appeal book 681, as he acknowledged, the judge immediately went on to address the possibility of two acts of kissing on the same page and, indeed, earlier at appeal book 677, the judge had specifically directed the jury about the possibility of convicting on two acts of kissing only.
Against this, the matters relied upon by the Court of Appeal were not case specific. If they were sufficient to overcome the obvious benefits of asking jury questions in this case we would submit then that jury questions are, in effect, a dead letter in the section 50 context.
We submit in response to the submission of Dr Bleby this morning that, clearly, the role of the jury is to determine issues on the information but in the light of the trial judge’s directions and therefore the verdict may not have related to obviously all the particulars on the information.
The only way to achieve fairness and certainty in a case in which it is charged in this fashion and the directions occur not necessarily mirroring the charge is to ask a question as to what two offences are proven.
And, finally, your Honours, can we complete by referring to what Justice McHugh said in KRM, in particular where his Honour at page 227 adopted the principles in Johnson v Miller in this context, commencing at the bottom of page 226, and the importance of section 47A that was being considered:
in the context of an adversary system of criminal justice where an accused person is entitled to be given as high a degree of particularity concerning a criminal charge as the subject matter will bear –
And, critically, we submit, “as the subject will bear” means within the constraints of an abrogation of the full suite of particulars that common law might otherwise demand. And in that context his Honour, at page 227, sets out the passage from the judgment of Justice Dixon, as he then was, in Johnson v Miller of the entitlement of an accused to be:
apprised not only of the legal nature of the offence with which he is charged but also the particular act, matter or thing alleged as the foundation of the charge. These particulars are needed to ensure that the accused person has a fair opportunity to defend the charge.
The matter that we focus on is the particular act that is the foundation of the charge and, here, in terms of section 50(1) the particular acts or at least two, the subject of the charge, as acts of exploitation and that are said to be three days apart. The requirement of three days apart would clearly not be necessary in an offence that was a relationship offence but Parliament here has chosen its actus reus is at least two offences three days apart.
But, importantly, in paragraph 16, in our respectful submission, his Honour Justice McHugh brings into the construction what perhaps it might be described in what we have termed as the principle of legality; namely, that the requirement that the particular act that is the subject of the charge that the accused is required to be apprised of and to defend should not be construed as having been modified or even abolished, as his Honour says in paragraph 16, obviously the legislature can do that, subject to the operation of Chapter III of the Constitution, but an intention to do so should be imputed to the legislature only when it has enacted words that make its intention unmistakably clear.
Courts should not lightly infer that a legislature has intended to abolish or modify fundamental principles of the common law such as the principle that an accused person must have a fair opportunity to defend a criminal trial. Here, the legislature has made it clear that the prosecution does not have to prove the date or the exact circumstances of the offence but that is all.
So, in our respectful submission, his Honour then went on to refer to the fact that the occasions which are to be the subject of the actus reus need to be minimally identified and the conclusion in KBT in terms of sending it back was that the issue for the jury would be interpreting the section in that way whether or not, indeed, they could differentiate between particular acts to satisfy the actus reus, bearing in mind there were six categories of offending. It was not suggested that one process of reasoning the jury might have adopted was that bearing in mind there are six categories over a number of years there must necessarily have been two separate acts as a logical deduction or three occasions as a logical deduction.
So, in our respectful submission, in that respect, we perhaps call in aid the remarks of Oliver Wendell Holmes in his work The Common Law the life of the law has not been logic, it has been experience, and we would submit here, fundamental to the common law, the obligation of the Crown to prove a particular act and to prove that act on the basis of evidence not on the basis of propensity. If the Court pleases.
KIEFEL CJ: Thank you. The Court reserves its decisions in each of these matters and adjourns until 2.15pm.
AT 12.21 PM THE MATTERS WERE ADJOURNED
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