Chiro v The Queen; Hamra v The Queen
[2017] HCATrans 133
[2017] HCATrans 133
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 TUESDAY, 20 JUNE 2017, AT 10.15 AM
Copyright in the High Court of Australia
____________________
MS M.E. SHAW, QC: May it please the Court, I appear with my learned friend, MR B.J. DOYLE, for the appellant in the matter of Chiro v The Queen and in the matter of Hamra v The Queen. (instructed by Wallmans Lawyers; Woods & Co Lawyers)
MR C.D. BLEBY, SC, Solicitor‑General for the State of South Australia: May it please the Court, I appear with my learned friend, MR B. LODGE, in the matter of Chiro v The Queen, and my learned friend, MS F.J. McDONALD, in the matter of Hamra v The Queen. (instructed by Director of Public Prosecutions (SA))
KIEFEL CJ: Yes, Mrs Shaw.
MS SHAW: If the Court pleases, in terms of timetable we have had discussions and on the basis that no more than one and a half days has been allowed for both appeals, and subject to the Court’s convenience, my learned friend, Dr Bleby, and myself have agreed the division of time and it is proposed that I would address the Court on the Chiro appeal, followed by the Hamra appeal, with a view to concluding this afternoon at about 3.05 pm, then Dr Bleby would conclude his submissions in response on both matters by about 12.25 tomorrow, leaving 20 minutes for any reply.
KIEFEL CJ: Yes, thank you.
MS SHAW: Your Honours should have our outlines of oral argument in both matters, and in the case of the Chiro appeal a proposed second amended notice of appeal which simply corrects an error in the verdict here because it was by a majority verdict and the notice of appeal stated it was unanimously. That is the only alteration to correct, that the verdict was a majority verdict. So we have amended 2(a) and 3 accordingly to make that amendment.
KIEFEL CJ: There is no opposition to the amendment?
MR BLEBY: It is by consent, your Honour.
KIEFEL CJ: Thank you.
MS SHAW: Turning first to the Chiro appeal, might I give the Court a few moments to see the sequence in which we intend to make our arguments?
KIEFEL CJ: Yes, Mrs Shaw.
MS SHAW: If the Court pleases. In our submission, the central issues are those set out in paragraphs 2 and 3 of our written submissions raised by the grounds of appeal at appeal book 2, page 793. First, in circumstances where the trial judge directed the jury that they could convict on a subset of particularised conduct, should the trial judge have ascertained from the jury the basis for the verdict; and secondly, what were the consequences of not doing so? We submit that the verdict was rendered uncertain and, in the alternative, that the judge erred by sentencing on the basis that all the alleged conduct occurred.
In our submission, the Court of Criminal Appeal erred by declining to interfere with the trial judge’s decision not to ascertain the basis for the verdict, and their reasons are at appeal book 2, pages 781 to 782, and paragraphs 15 to 20. The essential error was in failing to recognise that the trial judge had not properly considered the matter at all and by treating the present situation as in some way analogous to that which arises where different routes to manslaughter may lie behind a jury verdict.
We also submit that the Court of Criminal Appeal erred by rejecting the submission that the verdict was uncertain and their reasons are set out at paragraphs 10 to 14 of appeal book 2, pages 779 to 780, and finally, by rejecting the submission that the sentencing process had miscarried by reason of the trial judge having sentenced the appellant for criminal conduct, which cannot be inferred from the verdict, and their reasons in that respect are at paragraphs 19 and at 35 of appeal book 782 and 784.
We will of course develop those submissions, but may we commence by outlining the prosecution case briefly and the decisional history of the matter. The appellant was a teacher at a school attended by the complainant, who we shall call [B]. [B] was a student in a class given by the appellant in the first half of year 8 and in the second half of year 9. In year 10 he supervised her school project, and years 11 and 12 when she had moved to the senior school on a different campus she occasionally attended the middle school when the appellant helped her with her Italian.
Your Honours will see from the amended information which is at appeal book 1, but the particulars are set out at appeal book 4, that a range of different acts were alleged over a period from July 2008 to November 2011. In fact, there had been, as is set out in our written submissions at paragraphs 8 to 10, a trial in which separate counts were charged, resulting in a hung jury in respect of some and a successful appeal from conviction on another.
On the retrial, the prosecution chose to allege a single charge of contravening section 50 of the Criminal Law Consolidation Act (SA) and, as your Honours can see from the information, there were six types of acts particularised, some alleged to have occurred on multiple occasions, others on a single occasion. The acts referred to in particulars 1 to 3 and particular 5 were said to amount to indecent assaults, contrary to section 56 of the Criminal Law Consolidation Act (SA) and the acts alleged in particulars 4 and 6 were said to amount to unlawful sexual intercourse, contrary to section 49 of the Criminal Law Consolidation Act (SA).
In our written submissions at paragraphs 15 to 22, we set out the evidence as it related to alleged incidents in different years and the forensic issues that arose in relation to the evidence. I do not stay to develop that now, but the importance of it lies in the point we make at paragraph 24 of our written submissions, namely, that this was not an all or nothing case and nor was this a case like R v Hamra where the evidence was generalised. In fact, her Honour had directed the jury at appeal book 2, page 667, that they could accept part of any witness’s evidence; they were not required to accept it in toto. While of course we cannot know, in our submission, however there was every indication here that the jury might not, and indeed did not, accept this evidence of all acts including the very serious acts which one might think were in time and place on the evidence somewhat improbable.
It is against that background and an accepted view that section 50 required proof of two or more specific sexual offences as defined that when one comes to the judge’s directions, one sees that the trial judge directed the jury they could deliver a verdict if they were relevantly satisfied of any two or more offences in the nature of kissing in circumstances of indecency. If I could ask your Honours to take up appeal book 2 at page 677, for the first instance of her Honour directing the jury in that way, in particular at line 22 where her Honour directed the jury that if they:
were satisfied that the accused had kissed [B] on more than one occasion separated by three days, and that these kisses amounted to indecent assaults as I have described to you, that is, assaults occurring in circumstances of indecency, having some sexual connotation, then that alone would be sufficient to prove this element of the offence.
Her Honour in similar terms at appeal book 681, line 18, again repeated that:
What I am trying to illustrate is that it could be that you are all satisfied that he kissed her on more than one occasion in circumstances of indecency or that he kissed her on one occasion and caused her to touch his penis . . . Any combination will suffice as long as you are all agreed on which acts constitute this element.
That is to say, they could convict without accepting the evidence about the incidents the subject of the acts in particulars 2 to 6. The allegation of kissing was the subject of particular 1. The record of the jury’s deliberations demonstrates that the jury, we submit, had difficulty reaching a verdict. After several hours of deliberations, they asked a question, and this appears at appeal book 2, page 705. The first question was about the definition of “touching” in relation to particulars 2 and 3, and the question in effect was whether or not rubbing or contact as distinct from touching by the hand would suffice. Her Honour redirected the jury at appeal book 706.
Subsequent to this they reached an impasse and the judge gave a Black direction at appeal book 707. The jury were then given the opportunity to return the next day and on the following day they asked a further question. This question is not set out in the transcript, but we have set out in our written submissions at paragraph 28 the agreed terms of that question, but it was whether they, the jury:
were to be asked for a verdict on indecent assault and a verdict on unlawful sexual intercourse.
The discussion about that appears at appeal book 2, page 709. We have set out at footnote 7 of our submissions at page 6 what the common ground is between the parties, that this was the effect of the question. At this juncture, as your Honours will see at appeal book 709, counsel for the appellant commenced to foreshadow that if the jury had a verdict in relation to persistent sexual exploitation, she would:
be asking for a special verdict –
and that appears at line 48 of page 709. As your Honours will see, the judge in effect immediately intervened and said the words appearing:
No, there are no special verdicts ‑
and continued with reference to a Court of Appeal decision of R v N, and continuing over to the top of the next page, that her Honour had been effectively, as counsel in that case, told by the Court of Appeal that she was incorrect. The jury then came back and the judge made it clear that they would be only asked a single question and, subsequently, at 12.08 pm, they returned a majority verdict.
It is clear that, in our respectful submission, the judge made it clear to counsel that there would be no investigation of the basis for the verdict. When it came to sentencing, the appellant’s counsel submitted that in light of the judge’s approach to the verdict, to sentence the appellant on any basis other than in relation to the acts of kissing, would offend the principle that a person must not be sentenced for a crime more serious than that of which he has been convicted.
Your Honours will see that in the written submission on sentencing which was provided by counsel below – first at appeal book 728, at paragraph 4 ‑ counsel points out in the written submissions the absence of any clarification from the jury. Then at appeal book page 730, at paragraph 12, it is emphasised that the director had not objected to the directions to the jury regarding two occasions of kissing being sufficient. And, at paragraph 15 on appeal book 731 the submission was made that a decision as to the particular acts of sexual exploitation was:
a decision as to what constitutes an element of the offence charged –
and that was “not within the province of the sentencing Judge”. Reference was made at paragraph 16 to a South Australian single judge decision of Wellington v Police which was, we submit, really an illustration of the broader De Simoni principle – R v De Simoni (1981) 147 CLR at 389 – number 34 on our list, to which we will come.
Then, at paragraph 17 on appeal book 732, the ultimate submission was made that to sentence Mr Chiro on any other basis than the two acts of kissing, in particular one, would be to offend the De Simoni – or the Wellington v Police – principle that she had outlined. These submissions were made orally and the references in the appeal book, without going to them, are at appeal book 2743 to 2746 and repeated at page 751.
At appeal book 753, the sentencing judge rejected the submissions in rather short form in the two pages of sentencing remarks that appear in the small font on those two pages. Your Honours will see that the submission is rejected in the second substantive paragraph and, critically, at about line 30 on the page where her Honour says:
It follows that I must sentence you on the basis of those facts of which I am satisfied beyond reasonable doubt, consistent with the verdict of the jury. 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.
Then the judge appears to have simply accepted that this involves all the offending alleged by the complainant and the prosecution in the information. It is possible that what follows, we submit, amounts to findings but it is equally possible that it is seen as what was somehow necessarily implied by the verdict even though that was not how the directions to the jury had left the matter. That is because of that observation by her Honour of what the very nature of persistent sexual exploitation involves. We submit, that appears to hark back to the view which was stated by the Court of Criminal Appeal in the case of R v N, SH [2010] SASCFC 74, number 24 on our list.
EDELMAN J: But you do not allege, as a ground of appeal, that the sentencing judge erred by assuming that the jury’s verdict carried with it all of those findings 1 to 6.
MS SHAW: We allege by our ground of appeal that the failure to ask the questions and to sentence on the basis of all of the findings was an error in the absence of a jury question. In other words, the jury, having returned a verdict in the wake of a summing‑up that invited them to convict if they were satisfied of only two acts of kissing, in our respectful submission, the failure to make the inquiry precluded her Honour, we submit, applying De Simoni principles from sentencing on the basis of all the particulars proved.
EDELMAN J: Yes. But the question I am asking though is if that submission were not accepted but it were to be concluded that the sentencing judge had made findings of fact and proceeded on the basis of those findings of fact there is no allegation that, actually, that is not what occurred. There were no actual findings of fact made, it was just an assumption as to what the jury had found.
MS SHAW: Your Honour, the nub of our complaint is that it was not open to her Honour to make findings of the commission of offences that were in the particulars that were not within the directions.
EDELMAN J: Yes, yes, but the assumption behind that ground of appeal is that that is what she did.
MS SHAW: Yes.
KEANE J: A moment ago you were suggesting, I thought, that her Honour had not actually made these findings for herself. I think that is the difficulty that we are trying to grapple with.
MS SHAW: Yes, yes.
KEANE J: Certainly as one understands your written submissions it is no part of your case to argue that her Honour did not actually find, beyond reasonable doubt, that your client committed each of the particularised acts. Your case is limited to the contention that, to the extent that her Honour did that, it was not open to her as a matter of law.
MS SHAW: In our respectful submission, what her Honour did is open to two constructions and we put them in the alternative. One is that she has wrongly considered that the meaning of the offence was that, necessarily, once the verdict was delivered then all of the particulars were, in fact, proved. The alternative is that she has herself determined that the particulars are proved beyond reasonable doubt when those particulars are, indeed, offences because of the composite offence that is section 50 when that fact finding, as to offences, is the sole province of the jury and that is, in essence, the conundrum.
BELL J: Your ground of appeal does not take up the first of those suggested errors and it would be an odd reading of her Honour’s remarks to consider that she had made an error of that kind. In conventional terms, she said it was her obligation to find the facts for sentence beyond reasonable doubt in a manner not inconsistent with the verdict of the jury. Your point is, absent knowing the jury’s findings on all the particulars, you assert it is not open to her to make findings respecting the more serious conduct.
MS SHAW: That is so, your Honour. We do call in aid what her Honour in fact during the course of her summing‑up to the jury appeared to have the view that – and this is at appeal book 676, at line 12.
BELL J: Page 676, line 12?
MS SHAW: Yes. The paragraph beginning line 12 which completes with the sentence:
Accordingly, a charge of persistent sexual exploitation may be based on evidence of generalised patterns of sexual misconduct in relation to the complainant who cannot identify two or more specific acts.
In other words, what we submit is that her Honour may well have thought that the nature of the offence meant that if you proved two acts then, necessarily, you proved the pattern of offending. But, we do not stay with that, your Honours. Our fundamental submission is that irrespective of whether or not her Honour took the approach that that was necessarily the result of the verdict – namely, that therefore all of the particulars were proved – or whether she, herself, set about in the short form that she did, finding them proved, either way, we submit, it is inconsistent, or not inconsistent but, certainly, inconsistent with the principle of the – as we call it – the De Simoni principle.
KIEFEL CJ: Necessarily, as I understand it, you are saying that even if her Honour understood that in a composite offence of this kind, the jury only needs to have found for itself two acts to constitute the pattern of conduct to give rise to the composite offence. Nevertheless, when it came to sentencing, it was necessary for her Honour to identify the particular underlying offences, the acts which were themselves offences.
MS SHAW: Yes, that is so.
KIEFEL CJ: And, that her Honour could not undertake that task for herself because this was not an exercise of fact finding which one commonly finds in sentencing, for example, with respect to the circumstances surrounding the offences. This is the very – as I understand your submission, it is the very question for the jury, the actus reus to determine the offence itself.
MS SHAW: Yes. That is the nub of our argument, if it please your Honour the Chief Justice.
KIEFEL CJ: So, your argument is that her Honour had two courses. You do not contend that it is a case for a special verdict as such but, rather, that the jury be asked when they returned a general verdict and, perhaps, foreshadowed at a time earlier than this that when they returned their general verdict, they are to identify the underlying offences which they have found proved.
MS SHAW: Yes.
KIEFEL CJ: Or, alternatively, if that course was not open, then the only course which the sentencing judge can undertake is to sentence on the basis of the least serious of the offences.
MS SHAW: Yes. That is our final submission, if you like, if the Court pleases – in that only by sentencing on the lowest level of offending, about which her Honour directed the jury, could, as a sentencing judge, she be satisfied beyond reasonable doubt that the offending was proved, otherwise it would be a breach of the De Simoni principle.
EDELMAN J: But how does that submission ever arise? If you are correct about the first submission then the trial judge was required to put those questions to the jury and then required to sentence on the basis of the answers that the jury gave. That is the end of the story. If not, the sentencing judge was not required to put those questions to the jury, then on what basis can it be said that she was not entitled to find facts for herself?
MS SHAW: First of all, your Honour, in our respectful submission, there was obviously discretion for her to ask those questions, which I will come back to. Coming to your Honour’s second point, the critical submission we make is that these are not just facts, these are criminal offences. The unique nature of this statutory offence is to require proof of criminal offences as the actus reus. For each criminal offence that is the subject of direction, certain elements have to be proved, and each criminal offence that is the part of an actus reus has its own statutory maximum penalty in the State.
The authority of R v D, which was referred to, clearly the maximum penalty of life imprisonment for the offence of persistent sexual exploitation envisages that the offence itself might comprise, for example, indecent assault, and the maximum penalty for indecent assault is currently eight years. Secondly, it might be a group of offences that are in fact rape. The maximum penalty for rape is life. So the approach to punishment must reflect what are the composite offences that are the subject of the actus reus. Therefore, when her Honour is undertaking the sentencing function she must identify what are the offences proved as the actus reus because those offences have a statutory maximum that she must factor into arriving at her penalty.
That is, if you like, the demarcation between fact finding in the ordinary case and a case in which section 50 has as its actus reus the proof of offences which, as her Honour directed the jury, they had to be satisfied of the elements of indecent assault, they had to be satisfied of the elements of unlawful sexual intercourse, and then, when her Honour came to sentence, she had to have regard to the maximum penalties for each of those offences in arriving at where this offending sat in relation to the maximum penalty for persistent sexual exploitation.
I am not sure whether that answers your Honour’s question, but it is not fact finding in the ordinary way; it is having to find what offences were found proved as part of the actus reus.
BELL J: The respondent deals with your De Simoni complaint by pointing out that, if an offender pleads guilty to a count of persistent sexual exploitation of a child but contests some of the particulars, in a conventional way the trial judge would hear evidence and determine the nature of the culpability and make findings in that respect only if satisfied beyond reasonable doubt. So the respondent submits that the exercise is very much the same here.
MS SHAW: Your Honour, we would respectfully respond by harking back to the obvious principle that an accused is entitled to a jury trial in relation to any offence or aggravating matter that might increase the punishment to which he is exposed. If indeed he pleads guilty to persistent sexual exploitation then immediately he has placed himself away from the jury, into the province of the judge, and the way in which the judge then addresses that does not change, except in the instance that it is a judge sitting alone, and the judge has to determine whether or not the offences are proved, as a judge sitting alone.
That means that the accused might well give evidence as to whether he agrees or disagrees with the particulars, and the judge would make findings. But this accused was in the hands of the jury and was in the hands of the jury on each of these particulars and he did not give up his right to have a jury determine each of those particulars once the verdict came in.
BELL J: To take up another aspect that the respondent puts against you, on your contention that it was open to the judge in the exercise of discretion not to ask the jury the basis of the verdict but to proceed then to regard herself as confined to sentencing on the basis of two episodes of indecent kissing, but the scheme of this provision would enable the appellant to successfully plead autrefois acquit in bar to the most serious of sexual offences committed within the period the subject of the charge. What is your answer to that?
MS SHAW: First of all, obviously it is a function of the prosecutor’s choice as to what they include in the particulars, but more importantly the autrefois provision is a defence provision for the accused upon conviction. It does not inform and detract from his fundamental right to have these matters determined by a jury. In other words, this legislation must be construed in accordance with his right to have a jury determine any criminal offence against him. Where the criminal offences that make up the actus reus are ranging from indecent assault to quite serious unlawful sexual intercourse then he is entitled to a verdict on each of those offences. The fact of the autrefois acquit does not deny him – does not deny him – the right to have those particulars determined by a jury.
EDELMAN J: There is only one offence though here, is there not? There is only one offence of which the accused is convicted, which is the section 50 offence.
MS SHAW: Your Honour, that is correct in relation to the outcome, but it is unusual because it is an offence that is comprised of other offences, not just relationship evidence, not just conduct, but other offences.
EDELMAN J: But does not your proposition then have to be that an accused person cannot be denied of a right to jury trial of any element of an actus reus constituting the offence? Here, the elements of the actus reus constituting the offence happen to be separate offences.
MS SHAW: That is so, that he is entitled to a jury trial. If in fact Parliament constructs an offence that is a combination of separate criminal offences with separate penalties, and the jury are directed that he is in their charge on those separate offences, he is entitled to the jury verdict on those separate offences. He does not lose it because the jury happened to find him, as we would submit was very open here ‑ do not find the other particulars satisfied but only the kissing satisfied. He does not lose the verdict of the jury and their deliberation, because the ultimate offence is called persistent sexual exploitation and the verdict does not disclose which of those particulars indeed that they were satisfied about.
EDELMAN J: That principle would not apply to cases such as drug trafficking or manslaughter or other cases where the trial judge is entitled to make findings of fact about elements of the actus reus. You say that there is something very special where the element of the actus reus is a separate offence, even though it is not relied upon as anything more than the factual substratum of the section 50 offence.
MS SHAW: Yes. Your Honour, what fundamentally one is addressing is the alignment between punishment and the jury verdict. In manslaughter cases there are no subsets of offences; it is one offence for which the actus reus might have different ways of proving liability. It does not have a separate maximum; the sentence for manslaughter is not in any hierarchy. But here, what this offence involves is proof of separate offences, and it is fundamental, we submit, in our system of criminal justice ‑ ‑ ‑
NETTLE J: Ms Shaw, if it were a Giretti count of drug trafficking and the jury returned a verdict of guilty without particularising all the acts of trafficking over the period of time, would not the judge be entitled for himself or herself to find beyond reasonable doubt, if possible, which acts were proved, for the purposes of sentencing?
MS SHAW: Your Honour, if the offence was a continuing offence as charged, yes, the accused is facing a continuing offence. In other words, the offence of trafficking that your Honour envisages, I understand, is that between this day and this day the defendant trafficked. The difference between charging a continuing offence ‑ and as we know in some States there are offences of maintaining a sexual relationship which is a continuing offence.
NETTLE J: Yes.
MS SHAW: That is the difference. This section prescribes acts of sexual exploitation. The jury have to be unanimous about each of the offences that are relied on to prove the actus reus. In the trafficking case it is a stark contrast between a continuing offence where the jury do not have to be unanimous about every single act because the nature of the offence is a continuing offence. That reasoning does not inform a section which requires proof of separate sexual offences.
NETTLE J: That is right. Giretti, the jury does not have to be unanimous as to each act of drug trafficking in the course of the period. Thank you.
MS SHAW: That is so. Similarly, in manslaughter, your Honours, the jury do not have to be unanimous about any basis for the verdict, whether it be unlawful and dangerous act manslaughter or whether it be provocation. There is no requirement of unanimity in relation to either of those routes to the manslaughter verdict. That is in stark contrast where one is actually requiring proof of sexual offences. That is made plain by section 50 because subsection (7), which defines “sexual offence”, includes the need to identify, in relation to an historical offence, what was the applicable sexual offence to which the accused could have been liable at that time.
Just by way of example, in more recent times there has been a surge in offences that encapsulate pornography. No such offences existed 30 years ago in the same way as they do now. So one has to not only identify the offence; one has to go back and say, “What we are charging in terms of the actus reus is an offence that was extant as at the time of this offending and we must direct the jury and find that offence proved in the way in which it existed as at the time of the offending”. Again, that is consistent with the principle of legality and the need that someone not be charged with offending that did not exist, or retrospectivity.
The other provisions in this section reinforce that this actus reus is in fact separate offences that have to be proved both as in existence at that time – this comes to, obviously, our argument in Hamra ‑ delineated from each other and, importantly, in a way that enables the defence under subsection (3) ‑ namely, if the complainant is over 16 – to be engaged.
Indeed, that was the way her Honour directed the jury here: the two criminal offences that were extant as at the time of the alleged offending were indecent assault and unlawful sexual intercourse, and those were offences that were caught within what were the limitations of the definition of “sexual offence” under subsection (7).
KIEFEL CJ: Is there a distinction that needs to be drawn though that the judge is not sentencing for what I will call the underlying offences, the judge is still sentencing with respect to the composite offence, which has regard to the course of conduct, but the point is that the sentencing judge needs to know what the jury identified as the conduct constituting the offences below.
MS SHAW: Yes.
KIEFEL CJ: So it is not so much that the sentencing judge needs to know that there was a verdict ‑ there was no verdict returned with respect to those offences – but rather that the jury has concluded a determination of fact about offences and the sentencing judge needs to know what that particular conduct was to inform the sentencing on the composite offence.
MS SHAW: Yes, that is our submission and that is why, in a case where the statute in fact creates an offence that has a subset of criminal offences with their own repeated punishments, unless the judge asks those questions as to “Which sexual offences have you unanimously found proved?” ‑ contrast a fact finding exercise – then the sentencing judge, in our submission, is constrained to sentence on the basis that those offences as a subset that she could be satisfied about beyond reasonable doubt and because of her directions, having directed the jury with no objection from the Crown, that the jury could return a verdict on the lowest subset, then our submission is, as your Honour has already indicated, that is the only basis that was open to her Honour to be satisfied beyond reasonable doubt that the jury was satisfied beyond reasonable doubt.
KIEFEL CJ: Then it is important if not critical to your submissions that the process of sentencing in relation to the section 50 offence is not just at large and uninformed but it is actually informed by the particular offences found. That is actually the process of sentencing, that the sentencing judge on your submission is directed in relation to the sentencing on the section 50 offence by the offences which the jury must have found to support the higher offence.
MS SHAW: Yes.
KIEFEL CJ: How do the maximum penalties play out with the section 50 offence in, say, something like rape?
MS SHAW: Your Honour, the case of R v D, which was under our former section 74, the precursor to section 50, his Honour Chief Justice Doyle discussed this conundrum and effectively indicated that the maximum of life imprisonment clearly is not an appropriate yardstick for offences which, for example, could comprise serious yes but indecent kissing and trial judges needed ‑ or sentencing judges needed to be guided by the maximum penalties or the penalties that applied to the subset of offences that were the subject of the charge.
That appears at number 14 in our list and I can tell your Honours that at that stage there had not been any discussion in the jurisprudence in this State of the principles in KBT and it was a case dealing with sentencing. R v D is reported in (1997) 69 SASR 413. His Honour the former Chief Justice said at page 420, halfway down the page:
the approach to be taken under s 74, in a case like the present one, is this. The court should identify the different offences involved and the maximum punishment that they attract. In the present case the offences are unlawful sexual intercourse with a child above the age of twelve years, that attracts a maximum punishment of 7 years' imprisonment –
that was the maximum as at 1997:
and indecent assault on a child above the age of twelve years, that attracts a maximum punishment of 8 years' imprisonment.
So, in essence, his Honour discussed the sentencing approach, that it needs to be informed by the subset of offences that are actually found proved for the purpose of sentencing. And in our respectful submission, the governing factor in relation to the issue that arises for the sentencing judge, as in this case, is the directions on the summing‑up and, indeed, the position of the Crown.
In other words, the Crown could have insisted or asked her Honour to direct the jury that they were required to be satisfied of every particular on the information. They just looked at the six particulars. If that had been the direction and the appellant was found guilty, then clearly their sentencing would have properly been for all of the particulars. But here the charge was framed in a way about which, as we have set out in our outline, there was complaint below that there were particulars or particular offences that could have been separately charged.
They were single incidents – these are particulars four, five and six. They had previously been charged as single incidents and on the morning of the trial they were included in the section 50. That merely highlights the danger of, if it is open to the director, which it clearly is and there is no dispute about that, to frame information that includes the most serious and particularised charges, as well as minor charges, then it will be the directions by the trial judge in her summing‑up that govern the findings in relation to the verdict in the absence of a jury question.
BELL J: The assumption underlying this offence is that individual acts of sexual exploitation are not able to be particularised in accordance with common law principles to the degree necessary to permit charges to be preferred in relation to those individual acts. The offence nonetheless is an offence that is concerned with the commission of more than one act over the relevant period of sexual exploitation. It focuses on the acts of sexual exploitation. It is not concerned, as you have pointed out, with a continuing conduct amounting to some sort of relationship or the like.
I just take up with you the assumption that one gets from sub (2) that the prosecution is not in a position to particularise the acts of sexual exploitation. Here you submit that particulars four, five and six were susceptible.
MS SHAW: There was only one incident on each of those particulars.
BELL J: Yes, so necessarily it was an identifiable incident.
MS SHAW: That is so, and similarly with the kissing, under each particular there were identifiable incidents. The critical point which obviously related to the Hamra appeal is not that they are unable to be particularised; what the section prescribes is acts of exploitation and the rider or the qualification to the normal common law principles is that it is possible they may not be able to be properly particularised – that is, as to date, as to place and all of the other particulars that defence would seek in order to properly defend the matter.
BELL J: But you would say each of the acts particularised in four, five and six was capable of being properly particularised.
MS SHAW: Yes. Can I draw this distinction, which is part of the Hamra appeal? There is a distinction between, we submit, an identifiable occasion and particulars. So if you can identify the occasion in any way at all – for example, the kissing ‑ she says there was an occasion in an office where he kissed her and she tripped over a chair. It does not matter about date. It does not matter about any other particular. The occasion is identifiable. Then that is the kind of act that would be susceptible to section 50; one, because it is identifiable as an occasion but it may not be able to be properly particularised in the normal way that one expects for a common law charge.
BELL J: I do not know how you particularise things in South Australia, Mrs Shaw, but in other jurisdictions it is not uncommon to particularise an act of indecent assault over a period of, say, three years and, by reference to place, no more than an allegation of the town in which it is said that the event occurred. All I am getting at is I am directing your attention to the assumption that the act of sexual exploitation is one that sub (2) assumes is not able to be properly particularised.
MS SHAW: May not be able to be properly particularised. That does not deny or qualify the need to identify an occasion.
BELL J: Yes, I understand.
MS SHAW: That is our point because obviously to prove an act a precondition to that is that you have an occasion, otherwise ‑ ‑ ‑
EDELMAN J: If sub (2) in defining what is an act of sexual exploitation had not used effectively other offences as a dictionary but had set out the content of all of those other offences as, in your language, occasions ‑ in other words, that compendiously set out an occasion of kissing, an occasion of touching breasts and so on – then the principle that you are contending for would not arise, would it?
MS SHAW: When your Honour says “occasion” it must fall within the definition of a sexual offence, which is ‑ ‑ ‑
EDELMAN J: Yes. In other words, if subsection (2) had not provided for a sexual offence, had not used the particular offences that are provided for as the underlying basis for the section 50 offence, if instead it had set out all of the basis for each of those other underlying sexual offences, it set all of them out as occasions so that they did not need to be fully particularised, then you would not say, would you, that the jury and only the jury could reach conclusions as to each of those factual acts which constitute the act of sexual exploitation under section 50(1)?
MS SHAW: If they did not have to satisfy proof of sexual offences? Is that what your Honour is indicating to me?
EDELMAN J: Instead of using the definition of “sexual offence”, which picked up the particular offences, if there had just been a list of acts, not calling them offences but using the same content.
MS SHAW: Right. Is your Honour contemplating that they might be in the nature of circumstance of aggravation – that is, if the occasion identified was a kissing, that obviously ‑ ‑ ‑
EDELMAN J: Just listed all of the occasions, rather than calling them sexual offences. What I am trying to understand is how much weight an unparticularised charge of a sexual offence is playing in your argument.
MS SHAW: It is playing the part because, one, it is an element of the offence; that is how Parliament has defined it. The element is that you must prove two sexual offences and they must be proven to have occurred over a period of three days – that is, at least three days apart. Importantly, Parliament has chosen which sexual offences can be charged under section 50. They are outlined under subsection (7) and they have chosen those offences in the context of each of those offences having a maximum penalty.
If we went to another section that did not characterise the actus reus, by reason of sexual offences that appear in our criminal calendar but simply relied on acts, then the question then is, in the abstract, if one is the equivalent of an indecent assault and it is a kiss and the other occasion is of non‑consensual sexual relations with somebody, then clearly those differences can only be informed by the level of seriousness in the context of the criminal law and what we understand to be the relative seriousness in terms of penalty.
So whether you call them occasions – and this is why I raise the analogy with aggravation – any facts that are going to impact on penalty need to be, in our respectful submission, if the legislation permits it, and we know in Kingswell the legislation was interpreted as placing the issue of aggravation in the hands of a court role, it then becomes whether or not the new section that does not require offences to be proved is one where you can interpret that Parliament intended that the different levels of seriousness that can impact on penalty were indeed the province of the jury or were indeed the province of the judge.
And so the critical issue is, when one is considering the element or when one is considering any fact which might “increase the floor” – that is the United States expression, in Alleyne – then that is a matter which is, in effect, an element of the offence and it is a matter which you are entitled to have a jury determine.
So underlying our submission is the proposition effectively starkly here because these are offences, but when the accused is charged on information before he pleads – and I am referring back to your Honour Justice Bell’s point on a plea the situation is likely to change ‑ but if there is information and you are in the hands of a jury and you seek a jury’s determination on that information, then any matter that the statute includes in that offence, that is part of the actus reus, then in our respectful submission Parliament is ensuring that the principle of legality is maintained and there is no compromise of your right to a fair trial and a jury trial on conduct which potentially can increase the punishment that you will receive as a result of that verdict.
KIEFEL CJ: When an accused pleads guilty to an offence under section 50, does the sentencing judge then make an inquiry of the accused as to what conduct or which particulars are admitted?
MS SHAW: Are admitted, yes. And that would then be, as has been foreshadowed, a fact‑finding exercise by the trial judge because ‑ ‑ ‑
KIEFEL CJ: Do you mean it could be contested?
MS SHAW: Yes, he can give evidence and evidence can be called from the complainant on the disputed facts about those particulars and the accused can give evidence.
NETTLE J: Are they normally done on agreed facts when there is a plea?
MS SHAW: Yes. In fact, that would be the subject of discussions in advance. But to take your Honour the Chief Justice’s point, going to the ultimate end result if there was no agreement on the facts, then once you had effectively foregone your right to a jury determination on the principal offence, then all matters within that principal offence ‑ ‑ ‑
KIEFEL CJ: But you would say the critical point of distinction is that the accused has not put himself or herself upon the jury?
MS SHAW: In the charge of a jury, that is so. So if you – and this arises of course particularly and more commonly where one has a number of matters of aggravation to a principal offence, and where those matters of aggravation increase the maximum sentence. For example, you might have an offence which has a maximum penalty of six years aggravated. One circumstance proved, you take it up to 10. Other circumstances proved do not increase the maximum beyond 10. It is still 10.
If you dispute it was aggravated, then you would be disputing an aggravated offence because the maximum is 10 and you would be entitled to a jury verdict in relation to that aggravated offence. If you pleaded guilty to the aggravated offence, which had a maximum of 10 years, but the other circumstance of aggravation did not increase the maximum then, in our submission, the construction would be that that would be a matter to be determined by the judge because you had pleaded guilty to an offence, with the maximum that applies to your offending.
It does not mean you cannot dispute whether the other circumstance of aggravation is proved, but you may not be entitled to a jury trial on the other circumstance of aggravation. That is, in our respectful submission, how the law ensures that punishment is linked to what in fact is your right to a trial by jury and determination by a jury and that you should not be exposed to punishment for an offence or offences, unless you have had the opportunity of a jury trial if you are disputing.
BELL J: Come back to the De Simoni issue. If a person pleads guilty to an armed robbery and the facts disclose, on a view, that there is an armed robbery with wounding, it is clear that the judge cannot sentence on the basis of a finding of wounding because that is an aggravating circumstance that could have been the subject of a separate charge and the plea of guilty is to no more than the elements of the offence in respect of which it is entered. Here, if an accused enters a plea of guilty to a charge under section 50, and disputes the particulars of it, the trial judge may embark on an inquiry. The complainant may be called, the offender may give evidence but, at the end of the day, the offender’s plea is a plea to the section 50 offence ‑ ‑ ‑
MS SHAW: That is so.
BELL J: ‑ ‑ ‑ and he or she is in the hands of the judge as to the findings that the judge makes. No De Simoni issue arises by virtue of the judge finding particulars that are disputed involving a finding of acts of sexual exploitation of a greater seriousness than the offender admits, in the way the plea is conducted. So that is an essential difference.
MS SHAW: Yes, in that sense the plea is to persistent sexual exploitation, in accordance with the information. So the plea, therefore, is a plea to the actus reus in relation to what is alleged. De Simoni does not arise in that context because the particulars are, indeed, the actus reus of the offence. If, indeed, as part of the plea it was alleged, for example, some other event happened that was not in the particulars, then that may engage the De Simoni principle – for example, during the course of it he kidnapped the complainant.
BELL J: Yes.
MS SHAW: Once the plea is afoot, then that is the area in which De Simoni has relevance, but not to the fact finding or the offences finding because the acceptance for punishment has already arisen in relation to the principal offence. And, in our submission, what Mr Chiro’s matter is concerned with is the step before that, namely, this accused has put himself in the hands of a jury on this entire information and he has given evidence on this entire information. And he does not lose the right to the jury verdict on those particulars because of the failure of the judge to exercise her discretion to ask a question. It does not then, because of that failure, fall into the province of the judge to make those findings.
Could I then, perhaps, take your Honours to the Court of Appeal decision. The essential reasoning of the court, your Honours, in relation to the question of ascertaining the basis of the verdict is at appeal book 781, paragraphs 16 to 20, where the court recognised the appellant’s argument that her client should only be sentenced on the two instances of kissing and the trial judge had wrongly denied herself the power to take a special verdict and that the only fair way – it is in paragraph 15 – was to sentence on the lower level of offending as having been proved.
I just refer your Honours back to appeal book 766 in relation to the ground. Although the language of special verdict is used by the court the ground is broader in that respect in that ground 1 was simply that the learned trial judge erred in not requiring the jury to identify the acts of sexual exploitation.
Her Honour Justice Vanstone, in the judgment of the court, referred to the discussion in Isaacs Case and in the approval by Cheung but noted, at line 30:
In Cheung the plurality said that there would be very few cases in which it would be appropriate or useful to ask a jury the process of reasoning by which it came to its verdict.
And we interpolate that of course “few” leaves open that there may be cases and we submit here obviously a function of this particular statute. Her Honour, at paragraph 18, held that the trial judge “was correct not to take a special verdict”. Her Honour found that:
The prospect of [the jury] having to answer for its findings on specific conduct or types of conduct might have confused the jury –
and the framing of questions was not necessarily straightforward. And, in our respectful submission, the issues that the court called in aid or turned to in terms of looking at reasons arguing against a special verdict do not apply here. Quite the contrary because in fact the directions that are required to be given in accordance with KBT are that the jury must be unanimous about the offences upon which he had directed them and they needed to find two separate offences, three days apart. Therefore, a question as to what offences had they found proved would necessarily have had informing it the fact of unanimity.
So, in our respectful submission, there is no, we submit, telling arguments against the need for a question in this setting to have been asked. The difficulty the jury were having led counsel to ask for, as it was called, a special verdict, but in essence to ascertain what offences had the jury unanimously found proved.
KIEFEL CJ: What do you say are the questions that should be put?
MS SHAW: Simply, your Honours, what offences have you, the jury, unanimously, found proved – which two offences?
KIEFEL CJ: Offences or conduct.
MS SHAW: Yes, which two or more sexual offences, because her Honour has directed the jury that, as to these particulars, you cannot find the actus reus proved unless those particulars meet the requirements of either an indecent assault or an unlawful sexual intercourse. So the question is: what two offences ‑ ‑ ‑
NETTLE J: Two or more.
MS SHAW: Which two, or more, offences, not just two. Your Honour is correct; I apologise. “Which two, or more, offences have you found proved in accordance with my directions?” Her Honour Justice Vanstone, at appeal book 782, goes on to reason that “there was no need for a special verdict” on the basis that these were factual matters for the judge and:
There is no obligation upon the judge to sentence on a basis seen to be most favourable to the defendant.
And that this was “little different” to a case of manslaughter. Your Honours, I have addressed our response to that in our submissions today.
If I could then briefly come quickly to what we submit as the critical point of distinction, which we refer to in our outline at point 5(b) of our written outline, that there is a discretion that has been recognised, and we have referred in that respect to the remarks of Justice Stephen in Veen’s Case, recognised in Cheung’s Case and left open in Isaac’s Case, the power to ask questions has not been denied. It clearly has been thought to be inappropriate in the case of manslaughter and, in our respectful submission, the considerations militating against such a course in relation to manslaughter that are identified in Isaacs are inapposite here because of the reasons that we have developed in our written submissions at paragraphs 74 to 79 that turned fundamentally on the construct of section 50.
To summarise, unlike in the case of the factual base for manslaughter, unanimity is required as to the sexual offences to be found proved. That was how the jury was directed here, consistently with this Court’s decision in KBT. Therefore, if the question is asked of the jury, one will not get disparate answers and, in our submission, on the authorities unanimity is not required where the question is the factual basis for a finding of manslaughter.
Secondly, and related to that, to ask questions as to the elements found proved by the jury would only reinforce rather than distract the jury from the requisite directions regarding guilt. And, thirdly, while there may be no obvious hierarchy of seriousness in relation to different types of manslaughter, in a case like the present the nature of the offences found proved are likely to have a very significant effect on the appropriate sentence. And we accept it is very serious conduct to indecently assault a child, but it is a totally different sphere of seriousness to the acts alleged in particulars 4 to 6 as the maximum penalties and decisions of our court made plain.
If I can turn briefly to point 6 on our oral outline. We have submitted that the trial judge erred in failing to give genuine consideration to identifying the factual basis for the verdict and the Court of Appeal erred in failing so to hold. And, in our respectful submission, the real error is that the trial judge never gave any real consideration to the power or discretion to ascertain the factual basis for the verdict because her Honour appeared to treat R v N, SH as foreclosing the issue. I point out, your Honours, that in relation to R v N, SH, which is on our list at number 24, again, it was a judgment of our Court that predated the application by our court, the South Australian Court of Appeal, of KBT [2010] SASCFC 74. It was a charge of persistent sexual exploitation of a child, contrary to section 50.
But if your Honours go to paragraph 7, it was accepted before the court, with the concurrence of both the appellant and respondent, that this was a course of conduct offence and, in effect, in that circumstance where the offence, as at that time in South Australia, was characterised as a course of conduct offence, it was thought unwise and unnecessary to take a special verdict. And, therefore, the court’s comments at paragraph 12:
it was unwise because of the possibility of the jury’s responses to the specific questions being unclear and does not allow for the fact that there possibly may have been various views of the evidence in relation to each particular.
That, of course, is contrary to the construct that was subsequently adopted by our court in R v M, BJ and R v Little that our provision is indeed analogous to that in KBT. But the court accepted, at paragraph 10, that the trial judge has a discretion to take a special verdict but, in the way in which both counsel presented the nature of the offence, it was not considered appropriate to do so.
Our submission, your Honours, is that if ever there was a clear case for the exercise of the discretion, this was it. The offending was distinct, the jury were so directed, the jury’s deliberations revealed a preparedness and perhaps even a preference to differentiate, the answer to the question, we submit, would have made a significant difference to sentencing and, conceivably, Mr Chiro has been sentenced to a 10 year head sentence, with a non‑parole of six years’ imprisonment, where the jury had found proved only two acts of kissing.
In our submission, the Court of Appeal should have found that the judge had failed to give proper consideration to the matter and that, had proper consideration been given, either questions should have been asked or, alternatively, the sentencing process should have taken account of the fact that the verdict could not be treated as establishing guilt of all the constituent offences alleged and that the De Simoni principle was engaged.
Our first submission under point 7 of our oral outline is that the consequences that flow from the failure to identify the basis for the verdict – our first submission is that the failure to identify the basis renders the conviction uncertain and, in that sense, it should be quashed for the reasons set out in our written submissions at paragraphs 82 to 84.
This turns on the proposition that we derive from the observations of former Chief Justice King in R v Martinovic, number 37 on our list, (1985) 122 LSJS 129 at 133, namely, that one should be able to determine from the information the meaning of the verdict and in the way in which the present case unfolded that is clearly not the case and therefore, in my submission, if questions had been asked the information could have been amended and the position clarified. That, not having occurred, the conviction is uncertain.
The issue of autrefois has been raised but that is, in our respectful submission, not the only basis upon which a verdict should be clear and certain. We give the example, apart from sentencing, that there are provisions in the Evidence Act (SA), section 34A, which is a statutory modification of the Hollington v Hewthorn rule and provides that:
Where a person has been convicted of an offence or found by a court exercising criminal jurisdiction to have committed an offence and the commission of the offence is in issue or relevant to an issue in a civil proceeding, the conviction or finding is evidence of the commission of the offence and admissible in the proceeding against the person or a party claiming through or under the person.
So we submit that underscores the significance of a verdict on the information and all the particulars.
Alternatively, our submission is if the verdict is not void for uncertainty we submit that, having failed to identify the basis for the verdict, in order to permit an appropriate sentence then one of two consequences should follow. First, the conviction should be quashed because the sentencing cannot fairly be undertaken on an appropriate basis. Or, alternatively, the sentencing should have been carried out on a basis which ensured the principle in De Simoni was not infringed and, thus, on the basis of two acts of kissing, amounting to sexual offences, were proved, as we have set out in our written submissions at paragraphs 88 to 90. If the conviction is quashed, this is a case where the Court should decline to order a retrial because this would place the appellant in jeopardy a third time and in circumstances where he has now served two years of a 10 year sentence.
We emphasise the following matters: that he was tried on specific charges, that the jury was hung on all counts, except the count of indecent assault. That conviction went to the Court of Appeal. When the matter was returned after its quashing the prosecution elected to charge section 50, acquiesced in the judge directing the jury they could find the appellant guilty on two acts of kissing alone – that is, foregoing the opportunity to have the jury consider the allegations as a composite whole and if that endeavour has failed it is our submission it is oppressive and vexatious for the appellant to now face the prospect again of being charged with that more serious conduct.
If the matter were to be remitted simply for a trial on the lesser conduct, then in our submission the discretion to order a retrial should not be exercised in this case because Mr Chiro, as I have said, has been in custody since 15 May 2015. Alternatively, if the Court were to consider that the conviction is sound but the sentencing process miscarried the sentence should be quashed and the question then arises as to whether the resentencing in accordance with this Court’s reasons should be undertaken by the Court of Appeal or the trial judge and, in our submission, either course is open to the Court. If the Court pleases, those are our submissions in relation to R v Chiro.
If the Court pleases, if I might now turn to the matter of Hamra v The Queen. We have provided to the Court an outline of the order in which we seek to present our argument. I will take a moment for the Court to read that.
KIEFEL CJ: Yes, Mrs Shaw.
MS SHAW: If the Court pleases, in this appeal the Court of Criminal Appeal overturned the acquittal entered by a judge sitting alone. The trial judge had held that the evidence was too generalised to permit a delineation of two or more distinct sexual offences within the relevant timeframe required by section 50 of the South Australian Act. The appeal gives rise to two major issues reflecting our grounds of appeal at appeal book 267.
Firstly, in relation to the no case submission, the central issue is whether, as the trial judge held, proof of a contravention of section 50, which requires proof of two or more acts of sexual exploitation, as we have discussed, requires proof of two or more distinct occasions or transactions involving the commission of sexual offences. We submit that the Court of Criminal Appeal erred by applying a construction of section 50 which in effect authorises trials based on generalised assertions in a way in which Johnson v Miller (1937) 59 CLR 467, number 4 in our list, would not permit if the issue were guilt of two or more offences.
In our submission, the trial judge was correct to conclude there was no case to answer because the evidence which related to alleged acts within the relevant timeframe was not evidence capable of proving discrete transactions. To the extent that the Court of Criminal Appeal held otherwise, we submit that its analysis of the evidence was, with respect, perfunctory and the trial judge’s assessment was correct. The court’s reasons are at appeal book 230, paragraphs 51 to 52 in relation to the evidence and Justice Peek’s reasons in this respect at paragraph 111, appeal book 249.
On the second issue of permission to appeal, the Director sought to exercise a very exceptional right to appeal against an acquittal and he required permission. Double jeopardy and the considerations relating to the conduct of this case were relied upon by the appellant below but the four members of the court who would have ordered a retrial did not give any reasons on the topic of permission to the Crown to appeal. What we propose to do, your Honours, is briefly overview the prosecution case at trial and the course of proceedings before coming directly to what we submit, with respect, are errors in his Honour Chief Justice Kourakis’ reasons before then addressing the authorities and principles upon which we rely to support the approach taken by the trial judge.
We submit that the approach taken by the trial judge is consistent with earlier Court of Criminal Appeal decisions in the South Australian jurisdiction; namely, R v Johnson [2015] SASCFC 170, number 14 on our list, and R v Little, a five‑member court effectively applying the principles applied by this Court in KBT v The Queen (1997) 197 CLR 417 and Johnson v Miller.
If your Honours would take up the information at appeal book 7, your Honours will see the prosecution case alleged a number of acts amounting to sexual exploitation between 30 October 1977 and 1 November 1982, the date on which [B], the complainant, turned 17. However, as the trial judge observed at appeal book 197 at paragraph 17, it was common ground that [B] came into contact with the appellant after he became a teacher and therefore after 1978. Accordingly, the timeframe for qualifying offences for the purposes of section 50 was in effect, 1979 to 1982. [B] was born in 1965 so in 1979, he was 13 years old, turning 14.
The case was conducted on the footing that consistent with what had been held in the Court of Appeal decision in South Australia of R v Johnson [2015] SASCFC 170, number 14 on our list, the evidence had permitted a delineation between constituent sexual offences. Johnson’s Case was a case of trial by jury in which the Court of Criminal Appeal held the verdict was unreasonable because the evidence did not rise higher than general statements which made it impossible for a jury to identify two or more acts; nor could a jury, therefore, reach agreement as to those two acts.
The key proposition identified by Justice Peek was at paragraph 117 where, having earlier identified that as in KBT, the element of the composite offence was the commission of underlying offences about which the jury had to be agreed. His Honour said that:
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 –
and that is at paragraph 111 of his judgment. Justice Sulan and Justice Stanley agreed at paragraph 2 along similar lines. In Johnson’s Case, Justice Peek held at paragraph 115 that:
It was impossible for the jurors who returned the verdicts . . . to have agreed . . . because it was impossible for them to delineate any such pair of offences.
Coming back to Mr Hamra’s case, although Johnson’s Case self‑evidently involved a jury trial, rather than a trial by judge alone, in our submission, the trial was conducted in this case on the footing that Johnson was correct and identified a general requirement that whether the decision‑maker was a single mind or a multi‑member body, it was necessary to delineate in order to identify the two or more sexual offences about which there was to be a conclusion of guilt. This emerges from the prosecutor’s submission at appeal book 165, transcript page 239 to 241.
While it is not reflected in the transcript, it was common ground below that during the trial the appellant had raised with the prosecution whether a question of law should be referred to the Full Court to clarify the operation of Johnson in the context of a trial by judge alone. The prosecution did not support that course. Instead the prosecution defence effectively joined issue on the basis of whether the evidence in this case did commit delineation between the alleged offences. The appellant’s position before the trial judge was that the evidence did not permit a finding beyond reasonable doubt of two or more identifiable or distinct acts.
The prosecution in contrast contended that because there were various lots of offending, delineation was possible, and those lots were conduct in bedroom three, conduct in bedroom two, conduct when [B]’s parents went to Fiji and conduct at Kurralta Park. For reasons we develop in our written submissions and reply, for three of those lots, the evidence was not capable of proving beyond reasonable doubt that they occurred during the relevant timeframe, namely, before [B] turned 17.
First, [B] said that the illicit conduct continued until he was probably 17, nearly 18, but his timeframes were not 100 per cent accurate. This is reflected in the trial judge’s reasons at appeal book 197, paragraph 17 and at appeal book 67, point 4, and [B] described the cessation of the conduct as occurring once he had a licence, he was 18 and started going to pubs and not coming home, at appeal book page 37. The qualifying age for an offence to be committed was under 17.
Of course, [B] was recounting events that happened over 30 years ago. There was no timing at all or evidence as to timing of the conduct at Kurralta Park. The timing as to the period that the parents were in Fiji was not capable of excluding the reasonable possibility that [B] was 17 years of age and, indeed, the timing of the conduct in bedroom two in relation to which [B] said he had moved from bedroom three after his grandmother moved out, was also not capable of excluding the possibility that he was over 17. As to bedroom three, [B]’s mother was quite definitive that the grandmother had moved out by the time the appellant started to sleep over; in other words, there was not an occasion when [B] was in bedroom three and the appellant slept over.
But putting that to one side, that is, as to the timing difficulties, the real issue was whether the evidence regarding bedroom three was evidence that permitted a delineation of actual offences. In relation to that evidence, and indeed [B]’s evidence regarding bedroom two, there was never any evidence describing any one occasion. It was expressed in terms of what would happen and we set out those references at footnote 18 of our reply submissions.
The trial judge considered at appeal book 200, paragraph 27 that [B]’s evidence, taken at its highest, was highly generalised and because [B] was able to relate or reference any particular incident to any particular occasion, circumstance or event, beyond what typically or routinely or generally occurred, it was simply impossible, adopting the language of Justice Peek in Johnson, to identify two or more of the requisite acts and, in our submission, that assessment was correct. On an application for permission to appeal against the acquittal, the Director sought to challenge the correctness of Johnson’s Case. That appears in the appeal book at page 205 and 209.
Can I come now then to the judgment of Chief Justice Kourakis? Ultimately, the Chief Justice disposed of the issue at paragraphs 51 to 53 of his reasons at appeal book 230. Those reasons conclude with the proposition that the trial judge had erred in law in directing himself that this evidence was not capable of making out the elements of the offence. With respect, unpacking the reasons for that conclusion, in our submission, reveals what we submit is an error of law by his Honour the Chief Justice and a misapprehension of the facts. The misapprehension of the facts includes a failure to appreciate that there were difficulties with the timing of some of the lots of offending, as the Director described them below, for reasons I have touched on and are revealed in effect by the last line of his Honour the Chief Justice’s reasons at appeal book 230 in paragraph 52, bearing in mind that his Honour has referred to the sexual abuse stopping when [BT] was about 17 or nearly 18 and offences after 17 cannot qualify.
But, focusing for the moment on the approach to the law, the proposition upon which the Chief Justice relies appears to be that reached back at appeal book 227 at paragraph 43 where his Honour rejects the necessity for the acts of sexual exploitation to be identified in any way which distinguishes them from one another. In other words, he appears to be rejecting any notion that the evidence must be capable of proving distinct transactions or occasions.
We submit when one examines the structure of the reasons preceding the conclusion at paragraph 43 it shows, with respect, an approach that inverts the relevant inquiry because the Chief Justice in effect reasoned that there was no basis to imply that it was necessary to prove an occasion or transaction whereas, in our submission, we submit that the orthodox starting point is that proof of offences involves proof of actual occasions, not amorphous or abstract patterns of behaviour. The reasoning after paragraph 43 of his Honour’s judgment involves a confinement and distinguishing of Johnson which we submit simply cannot stand.
To develop this submission, may I take the Court to the relevant process of reasoning and identify what we submit are errors that were made? At paragraph 30 at appeal book 222 the Chief Justice sets out the section, and then at paragraph 31, appeal book 223, the observations in KBT which his Honour accepts was an analogous Queensland provision. We draw attention in particular to the last two lines of the quote from the plurality judgment in KBT set out at appeal book 223 that the construct by this Court in KBT that the dispensation with proof as to the dates or exact circumstances of the occasions did:
not detract from the need to prove the actual commission of acts which constitute offences of a sexual nature.
Importantly too at paragraph 32, his Honour appears to endorse the observation by Justice Vanstone who was the President of the Court in R v M, BJ (2011) 110 SASR 1 at paragraph 70 that it is in section 50(1) that one finds the actus reus, not in section 50(4), which is concerned only with the framing of the charge and what must be included in the information. In our submission, that is significant because the Chief Justice ultimately does place great reliance on section 50(4), as does the respondent in this appeal.
Then at paragraph 34, with respect, the Chief Justice misstates the applicant’s case by framing the issue as being whether there is some basis for an implication in section 50 that the competent offence cannot be proved unless the particular acts relied upon to constitute the constituent offences are:
so peculiar that each occasion of abuse can be separately identified.
Pausing here to interpolate the appellant’s argument, it is not that each and every alleged act the subject of evidence has to describe some peculiar circumstance. It is simply that the acts of sexual exploitation to be proved are themselves sexual offences and that proving two or more sexual offences means actually proving two or more occasions or transactions which are distinct from one another.
EDELMAN J: Do you accept that the consequence of what the Chief Justice says at paragraph 36, if that paragraph is accepted, is that the more a person offends, the more difficult it will be to prove two acts under section 50, on your construction?
MS SHAW: Your Honour, that is precisely, with respect, the comment made by Justice Sulan in R v Johnson and that this was a matter for the legislature, that here they are, they have chosen to charge an offence which requires proof of two sexual offences. If they in fact were trying to effectively capture those who committed lots of offences and the recall of the complainant did not allow any distinct offences to be identified, then that was a matter for them to ‑ ‑ ‑
EDELMAN J: This is ultimately a question of statutory construction and yet you say that a construction ought to be given to the statute which has the effect that the more offending that occurs, the more difficult it is to prove the offence.
MS SHAW: Your Honour, in this instance the answer is yes, because we start from a principle of construction of legality, not a principle of mischief, and effectively what is being outlined there is a presupposed mischief to which this legislation is addressed.
The principle of legality requires a construction that is informed by the presumption that Parliament is not intending to abrogate fundamental rights, and one of those fundamental rights is the right to a fair trial, and one of those fundamental rights is the Johnson v Miller principle that in order to achieve a fair trial one is entitled to be apprised of the particular act or subject matter or transaction or occasion to which one must make answer.
So here, in essence, 50(1) does not purport to create an offence that is maintaining a sexual relationship. It is an offence that proscribes two sexual offences committed three days apart and dispenses – in the information it does not dispense with proof specifically, as the Queensland provision and the Victorian provision do.
It in fact, what some might say, is more specific as to what is required in the information. But it does not anyway have any provision that suggests those fundamental requirements of the need to prove an offence, here a subset of offences, by proof of subject matter that it is actus reus, and gives the accused notice of a non‑duplicitous actus reus within the confines of the legislation is in any way affected by the mischief rule, in our submission, or ‑ ‑ ‑
BELL J: It is not so much duplicity, since one acknowledges that this is not a conventional offence in that respect.
MS SHAW: That is so.
BELL J: Your point is that one cannot be satisfied beyond reasonable doubt of an act of sexual exploitation if there is no means of identifying it. That is it.
MS SHAW: That is our simple point, your Honour, with respect, and the act of exploitation is defined as a sexual offence, and that is why one comes back to the importance of proof of the sexual offence, because without proof of the sexual offence you have not proved the act. So this act, whatever name it is given, whatever mischief one might conjure up, in its terms it proscribes two acts or more of sexual exploitation as defined proven to have been committed three days apart.
That of course is one of the arguments we make, that that informs the construction that if you must prove that there are two acts as a minimum three days apart, then clearly there must be an identification of particular acts or occasions to be able to arrive at proof beyond reasonable doubt that these two identifiable acts are indeed three days apart or more.
In essence, we take up what your Honour Justice Bell has said, that the appellant’s contention is that if one cannot identify in one’s mind an occasion or transaction, how can one be satisfied beyond reasonable doubt it occurred, let alone that there were two or more such occasions in the relevant timeframe and separated by the requisite number of days? It is not that they have to be peculiar in nature or even dated; they simply have to be able to be identified one from the other by the evidence and not by some notional process of identification.
As we develop in our written submissions, in our submission, this reflects a fundamental aspect of a fair trial involving proof of offences which involve specific conduct as explained in Johnson v Miller. Unless one can identify the occasion on which it is alleged the offence occurred, one cannot isolate the evidence which is admissible and relevant to whether the offence is proved. That is, unless you isolate the occasion, you cannot prove it. So, that is consistent with Parliament proscribing acts rather than a continuing offence.
In what follows in his Honour the Chief Justice’s judgment, his Honour proceeds to reject possible bases for an implication of a requirement that the acts be able to be identified as distinct transactions or occurrences and in doing so, we respectfully submit, he makes the following errors. First, as we have alluded to, he ignores the starting point contended for by the appellant as flowing from Johnson v Miller and reflected in KBT that if one is concerned with proving offences, one is necessarily proving particular occasions or transactions and, if the evidence does not facilitate that proof, the case fails.
Secondly, and relatedly, at paragraph 35 on appeal book 225, his Honour appears to adopt a different starting point because of his construction of section 50(2). The acts of sexual exploitation, his Honour appears to be saying, are in some way not sexual offences or at least do not need to be proved in the same way one would prove sexual offences.
In our submission, as we will develop, this depends on a construction of section 50(2) which converts acts in the sense of transactions or occasions on which sexual offences occurred into something quite different, relying only on the possibility acknowledged in section 50(2) that the acts may not be able to be properly particularised.
We emphasise the word “properly” because his Honour in his reasons in paragraph 50 – and we do not put any store on this – simply says it may not be possible to particularise. But really what section 50(2) is concerned with is the possibility that you may not be able to be properly particularised, the act required to be proved in accordance with subsection (1), and that will not defeat the charge as it might have at common law.
In our submission, however section 50 might contemplate that the usual level of particulars may not be able to be provided, there is simply no way around the fact that to prove a particular number of acts located in a particular timeframe - here when the complainant was under 17 – and separated by a particular number of days, this must involve proving distinct acts. A provision such as section 50(2) cannot be taken to convert the offence into a relationship offence or a tendency offence or a state of affairs type provision.
BELL J: Mrs Shaw, could I just ask this? Taking you to the Chief Justice’s reasons at appeal book 226, paragraph 37 – and I appreciate that we are here concerned with a trial by judge alone – but his Honour does consider the construction of the provision in the context of a jury trial and he says there that:
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.
I am just seeking to get your assistance on what the court is there saying. In the context of the Hamra Case is it suggested that the jury needed to be – if you had a jury that the jury would need to be agreed on the commission of some form of sexual impropriety in bedroom two over ‑ ‑ ‑
MS SHAW: Your Honour, I read that as saying, effectively – which, obviously, with respect, we do not support – that if you have a jury trial and you believe everything that the complainant says then necessarily you will find the offences proved. So his Honour goes on to say:
If so satisfied -
that is, if they accept – are satisfied that the offending occurred as testified by the complainant they will have agreed on – it follows they will have agreed on the same offences. So, if you accept all her evidence or accept all the offences have occurred, then it follows, as night follows day, that they will have been unanimous or by majority in a jury trial. His Honour goes on to say:
even though none of the prescribed offences is separately identified.
So, effectively, his Honour appears to suggest, contrary to, obviously, our submission in KBT that one does not have to identify any of the offences as an occasion. That is where we submit the reasoning is in error.
Your Honours, in relation to paragraphs 39 to 42, there is a reliance upon section 50(4) notwithstanding the acceptance of the correctness of her Honour Justice Vanstone’s observations back at paragraph 32 that subsection (4) is in fact a procedural provision relating to what is to be the framing of the charge and cannot derogate from subsection (1). We submit that her Honour – and in that judgment, her Honour Justice Vanstone considered and applied KBT and arrived at that construction in the wake of considering the analogous provision in KBT.
His Honour at paragraph 35 seems to distinguish KRM and the later Victorian Appeal Court decision of SLJ on the basis that section 50 goes further because of section 50(4)(b)(ii). But, for reasons we have developed in writing, if anything, in our submission, the Victorian provision goes further than our provision because it directly speaks of the question of proof. I am sorry, your Honours, I said 35 – it is actually paragraph 42 that his Honour refers to KRM and SLJ in the sense of referring to their provisions as compared to the impact of section 50(4)(b)(ii).
We draw the distinction in KRM that the qualifying feature of the provision is that the dispensation in relation to particulars is expressed in terms of proof not being necessary and, similarly, in KBT, whereas our subsection (4) is directed towards – as her Honour Justice Vanstone construed it – the framing of the indictment. It does not in any way qualify or derogate from the status of 50(1) and (2).
As has already been raised, at paragraph 42, his Honour relies on what the mischief that is ascribed by his Honour the Chief Justice as the target of the provision but nowhere is that mischief identified, we submit, by a proper process of statutory interpretation and to proceed in that manner, we submit, is indeed inconsistent with the principle of legality which assumes as a starting point the propositions expressed by this Court in Johnson v Miller and in S v The Queen (1989) 168 CLR 266, to which I will come shortly in our analysis of section 50.
Finally, we submit, that the Chief Justice erred in confining and distinguishing Johnson in the manner his Honour did at paragraph 49, appeal book 229, in that his Honour confined the decision to a factual decision about the strength of the evidence. But Johnson involved a case where, applying Chief Justice Kourakis’ proposition that proof of distinct defences is not required, it would plainly have been open, had the complainant’s evidence been accepted, to deduce that multiple but indistinguishable offences had been committed. His reasons, in our respectful submission, seem to overlook that Justice Peek, with whom Justices Stanley and Sulan agreed – they describe the evidence in Johnson as making it impossible to identify two or more offences.
Can I come then to our approach to section 50 that we argue for? The appellant submits the Court should start from the proposition that save for where the statute prescribes relationship or tendency or an ongoing course of conduct, offences prescribing conduct will be construed as requiring demonstration of a distinct occasion.
Support for that approach, as we have submitted, may be located in the seminal decision of Johnson v Miller. While that case is most frequently raised in support of the need for particularity it in fact reflects, we submit, a more basic proposition that the subject matter of a criminal charge must, at root, be a particular occasion or transaction, a proposition so basic that it usually goes without saying.
We refer in that regard to Justice Dixon, as he then was, at page 484 observing the need for the identification of a distinct occasion and a specific occasion and his oft‑quoted statement at page 489 in relation to the requirement to identify the transaction, that is, the subject of the charge. This language is also used by, for example, Justice Toohey in S v The Queen at page 282, that the prosecution should identify the occasion which is said to give rise to the charge.
Our proposition is, in effect, that relationship, tendency or state of affairs crimes apart, what is being proved is an occasion on which the accused committed the physical elements with the requisite mental element. To posit that there is such an occasion is not to posit particulars. The particulars are a way of describing the occasion but whether or not certain particulars such as date or time are given, or required to be given, what is always in is whether there was an actual occasion or transaction upon which the prescribed conduct occurred. In our submission, that approach is fundamental to the administration of criminal justice, has multiple rationales and engages the principle of legality as we have set out in our reply submissions at paragraph 4.
We are relying in particular on the observations of Justice Evatt in Johnson v Miller at page 495 and following, which were picked up by their Honours Justices Gaudron and McHugh in S v R at page 286 and by Justice Heydon in Patel v The Queen (2012) 247 CLR 531 at paragraph 168.
Justice Evatt emphasised that identification of the occasion or transaction was fundamental to the administration of criminal justice. We submit that the evidence must permit of the identification of a particular occasion and that evidence of a general course of conduct, or a general pattern of misbehaviour is not necessarily evidence of a particular occasion.
We rely in support on that proposition on S v The Queen and, in particular, at pages 287 to 288; KBT v The Queen in the judgment of the plurality at page 423 and KRM v The Queen (2001) 206 CLR 221 at paragraph 14 in the judgment of his Honour Justice McHugh.
KIEFEL CJ: Ms Shaw, would the complainant’s evidence regarding conduct which occurred whilst his parents were on a trip to Fiji identify the occasion?
MS SHAW: There are two points, your Honour. One is that the description was that the conduct would happen every night, or frequently, and there were two acts of fellatio – was the description. There was no distinguishing or identification of anything about, for example, the two acts of fellatio that separated one from the other and as is a concern about the timeframe because there was uncertainty, as he agreed, as to whether or not that was in 1982 and he turned 17 in 1982. So the capacity of that evidence had two areas of uncertainty. One was the timeframe and the second ‑ ‑ ‑
KIEFEL CJ: The timeframe question might be a somewhat different question because the – but the requirements of section 50(4) that particularity is not required in relation to, say, time, manner, place.
MS SHAW: Your Honour, that is not the issue on time. The time is he was already 17.
KIEFEL CJ: Yes. No, I gather that.
MS SHAW: Yes.
KIEFEL CJ: I was going to say that the section would not extend to overcome that kind of difficulty in relation to an element of the offence.
MS SHAW: That is right. One of the elements of the offence is that he must be ‑ ‑ ‑
KIEFEL CJ: But the identification more generally of an occasion ‑ ‑ ‑
MS SHAW: There was no specific ‑ ‑ ‑
KIEFEL CJ: ‑ ‑ ‑ a point in time when his parents were away and particular kinds of acts. We are talking here about sufficiency of identification of acts of sexual intercourse, are we not?
MS SHAW: Or generally, indecent assaults?
KIEFEL CJ: Yes, yes, quite.
MS SHAW: He said it happened twice that there was fellatio. But there was no further detail or differentiation or identification of two acts of fellatio.
BELL J: But if the evidence is – put to one side a question - the issue of whether or not the prosecution could exclude beyond reasonable doubt that he was not 17 at the time, but assume that the prosecution could, if the evidence is twice while my parents were on holiday in Fiji I engaged in acts of fellatio with the accused, or vice versa, why is not that evidence of two acts of fellatio sufficiently particularised for the purposes of this section?
MS SHAW: Your Honour, first of all there was no differentiation between the two acts, whether they were on the same day or three days apart.
BELL J: Yes, I understand, all right, yes.
MS SHAW: Yes. So, there is nothing further than simply this happened twice, no differentiation between the two of them in any way.
EDELMAN J: That is your S v The Queen point?
MS SHAW: I am sorry, your Honour?
EDELMAN J: That is your point about the principle of legality in S v The Queen?
MS SHAW: Yes.
EDELMAN J: How do you deal with the fact that in the second reading speech the legislation is expressed to have been enacted in order to overcome problems such as those identified in S v The Queen and also because in instances of long‑term sexual abuse, a child often cannot remember the detail of when and where each of the many intervening acts occurred enough to distinguish one from the other?
MS SHAW: Your Honour, what we submit about that is we rely on the approach of this Court in relation to textual construction and the principle of legality that informs that textual construction that, in effect, the presumption is that when Parliament framed this legislation, its choice as to how it addressed what is meant that your Honour has raised, has taken into account the fact that there is a presumption it will not abrogate the right to have a fair trial, fundamentally, in accordance with, as we submit, Johnson v Miller.
So, your Honours, as Justices Sulan and Stanley observed in Johnson’s Case, having set out that very passage, the intention of the legislature was not achieved on a textual construction because, in effect, they framed it in terms of prescribing two specific acts three days apart as the basis upon which a person would be, needed to be, was required to be, proved to be convicted.
We submit that textually, in effect, in our submission, the actus reus is identified in subsections 50(1) and (2) and, read with the definitions in subsections 50(7) and (8), by reference to sexual offences. In other words, the elements are located in those provisions. Section 50(3) contains a further defence or preclusion; that is, absent an identification of the occasion, that defence could not be engaged, and that further informs the textual construction that Parliament intended. There was the ability for an accused to argue that he was entitled to the benefit of that defence. In contrast, subsections (4) and (5) deal with procedural and consequential matters.
In our submission, section 50 is effectively, as we have said already, a composite offence proved by the proof of commission of two or more constituent offences separated by two or more days and while the child is under the prescribed age. The elements of the offence involve proof of complete, defined sexual offences in particular circumstances, and that requirement for the proof of complete, defined sexual offences in particular circumstances is in essence the construction that was the subject of KBT, which has been described as analogous to ours, and again where the his Honour Justice McHugh engaged in - or plurality dealt with the need to construe the Queensland section irrespective of what may have been in Parliament’s mind according to its text.
We submit that it follows from the fact that sexual offences, the constituent offences, are to be proved, that what is to be proved are distinct transactions or occasions, and this is reinforced by the fact, as we mentioned earlier in the Chiro appeal, that the definition of “sexual offences” requires recourse to the statute books at the time of the alleged offending, under subsection (7); this tending, we submit, to reinforce the assumption that what is alleged will be an occasion or transaction, and similarly, by the confinement of what is a sexual offence to those sections of the Criminal Law Consolidation Act are identified in subsection (a) under section 57 in the definition of “sexual offence”.
Further, we submit the proof of at least two offences separated by a particular period of time also presupposes that section 50 is concerned with distinct transactions, otherwise what are the events by which the separation in time is assessed? Likewise, in order to establish that the offending occurred before the complainant turned 17 years of age and to permit engagement with the defence which may apply where the complainant was 16 years of age, the section proceeds upon the premise that it is concerned with transactions or occasions.
In our submission, against this background and the policy considerations which militate against a different construction, section 50(4) is concerned only with procedural matters and cannot alter that position. Nor can it underscore, as Chief Justice Kourakis said at paragraph 39, appeal book 22:
that the elements of the offence . . . do not require identification of particular occasions.
In our submission, there was no basis to distinguish the constructional approach favoured in KBT, nor was it correct to distinguish the observations made in KRM on the footing that section 50 goes further and much more effectively remedies the mischief.
Firstly, we submit there was no relevant distinction between the formulation of section 50 and the provision considered in KBT. In fact, insofar as the provision in KBT and in KRM made inroads into the prima facie position of proving distinct transactions, they did so, we submit, to a greater extent than section 50(4) of the South Australian provision because they spoke to the state of the evidence and not merely to the level of particularity that is to be set out in the information.
The provision considered in KBT, section 229B(1) of the Criminal Code (Qld) contained a rider that, while the relevant offence was proved by showing three or more constituent offences within the relevant timeframe, it was not fatal that the evidence does not disclose the dates or the exact circumstances of those occasions. Similarly, the provision considered in KRM, section 47A of the Crimes Act (Vic) said it is not necessary to prove the dates or the exact circumstances of the alleged occasions.
In the present case, section 50(4) simply regulates what must be set out in the information, but the hypothesis and premise remains, as it is in the case of the provisions in KBT and KRM, that what must be proved are actual occasions. In our submission, the basic premise of the trial judge’s analysis was right. He was required to consider whether the evidence led by the prosecution, taken at its highest, had the capacity to prove beyond reasonable doubt that there were two or more actual occasions or transactions which amounted to sexual offences.
The trial judge had regard to a number of authorities, including the remarks of Justice McHugh in KRM at paragraph 24 in relation to the need to identify an occasion, and at paragraph 25, to the remarks of the Court of Appeal in Victoria in R v SLJ [2010] 24 VR372, in particular in circumstances where there was indeed a concession by the Crown, said at paragraph 16 of the learned judge’s reasons:
With respect, the critical question was not whether the evidence disclosed ‘qualifying offences’, that is, whether acts of the kind alleged would, if proved to have occurred, constitute one or more relevant sexual offences. Rather, the question was whether the evidence in question was capable of supporting a conclusion, beyond reasonable doubt, that the applicant had on an occasion - identified with ‘some specificity’ - done an act which constituted a relevant sexual offence.
In that case, at paragraph 17, which his Honour clearly had recourse to:
As is apparent from the complainant’s repeated references to what the accused ‘would’ do to her, she was describing a course of conduct. She was giving an account of what typically or routinely or generally occurred. There was nothing which distinguished one offending act from another.
In our respectful submission, here, as we have ‑ ‑ ‑
KEANE J: Ms Shaw, just to test your construction and the need for delineation and so forth, what if the witness says, “Every night for two weeks the accused came into my bedroom and touched my genitals and on two occasions he fellated me”? Why does that not sufficiently prove, if believed, that on two or more occasions over a period of three days the required event occurred?
MS SHAW: Two reasons, your Honour. Firstly, it will depend on whether or not the witness is recalling actually what occurred or whether the witness is saying ‑ ‑ ‑
KEANE J: Well, accept that the witness is believed.
MS SHAW: Yes. Your Honour, the difficulty with the evidence is that there must be the ability to say, in relation to any of those occasions, that it is able to be separated from another occasion by three days.
KEANE J: Well, no, it is a matter of the maths. It is inevitable that if you do it every day for two weeks there will be the relevant separation.
MS SHAW: Your Honour, that, in our respectful submission, is a result of deductive reasoning, or would be deductive reasoning, rather than identifying an occasion and determining what is the evidence to prove that occasion.
NETTLE J: But you would accept that on the example given it would establish that there be two acts of touching the genitalia of the victim separated by at least three days? It is just that you would not have the two acts of fellatio necessarily separated by at least three days, would you not?
MS SHAW: If the witness was speaking specifically that, “I went there on Monday and there was an act of this assault every day and within that time there were two acts of fellatio”, if you have the period identified in that way, then it might well be that there ‑ ‑ ‑
NETTLE J: But if she just says, “He touched my genitalia every day for two weeks and on two of those occasions he fellated me or I fellated him,” that, you say, is not necessarily sufficient to separate the two counts of fellatio by at least three days?
MS SHAW: That is so. And more importantly, there are two steps which are recognised in Johnson vMiller in relation to this issue. The first is that the starting point is you identify the transaction. It is not enough to deduce as a matter of logic, that there must have been a transaction, which is what the “would have” reasoning causes, that is, this is a matter of logic deduction. The law requires more than that. The law requires, and Johnson v Miller requires, that an accused, to achieve a fair trial, must have identified the subject matter of the transaction. It is not, well, between these days when you charge a specific act, a sexual act, an indecent assault in which various defences may arise, elements have to be proved, age has to be proved; you must identify the transaction.
The level at which that is achieved and how it is achieved is going to be a case‑by‑case situation. Unless the court ‑ and here the court at first instance - was not able, having correctly considered those authorities, arrive at a point where his Honour considered there was an occasion, whatever construct one put on the evidence, that allowed him to decide that there were two acts three days apart.
KIEFEL CJ: What you are calling “the occasion”, though, seems very much as if it is coming down to “it occurred in that week on a Tuesday at 6 pm”.
MS SHAW: Well, it has to be identified ‑ ‑ ‑
KIEFEL CJ: That is what you seem to be saying is the occasion.
MS SHAW: Yes, it has to be ‑ ‑ ‑
KIEFEL CJ: Whereas the occasion can be any time in that period of a week, that the identification of that period of time is sufficient to put the accused on notice of where the conduct is said to occur. The occasion is any point of time in that period; it is not on Tuesday, it is not on Thursday.
MS SHAW: Your Honour, can we respectfully put this submission that, if that was correct, then the accused is faced with, as Justice Evatt would say, trying to work out which of those days or weeks he has to answer. So within the need to prove the transaction, the single sexual offence, it does not authorise an accused facing – it could be one of any of the five days. It does not ‑ ‑ ‑
KIEFEL CJ: Quite so, because the complainant’s evidence is just about every night.
MS SHAW: If he said it was only one day and he was there for a week, we agree, he would not have to identify the day, because it is identifiable as an occasion. But we do not ‑ ‑ ‑
KIEFEL CJ: This sounds more like particularisation though, Mrs Shaw, really, and that is what section 54 is directed to.
MS SHAW: In our respectful submission, it is not particularisation. It is what is the subject matter of the actus reus and does the evidence permit delineation of one sexual offence from another? So, it is not choosing from a number of offences where the jury can decide it is this one or this one; it is the trial commencing on the basis these are the sexual offences, however they may or may not be identified, but a specific occasion, not one of a number of possibles.
Particularity, insofar as subsection (4) is concerned, is what is required in the information. It does not in any way detract from the specific prescription of a need for proof of two acts, at least two acts, or more. And the trial is not a fair trial, in our respectful submission, if the accused is facing, it could be one of five, not delineated in any way.
KIEFEL CJ: That might be a convenient time, thank you, Ms Shaw. The Court will adjourn until 2.15 pm.
AT 12.45 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.15 PM:
KIEFEL CJ: Where are we in relation to your outline of argument, Mrs Shaw?
MS SHAW: We are at our outline in relation to points 4(d) and (e), the constructional approach and the subparagraph (e).
KIEFEL CJ: Yes, thank you.
MS SHAW: Your Honours, just completing our submissions in relation to the constructional approach we say in summary in that respect that effectively proof at common law is not just about logic; it is about the capacity of the evidence to prove disputed facts and being relatable to disputed facts other than by propensity or generalised findings. So there must be a link between the evidence and what you need to prove.
We are concerned with the judge here having concluded that he was unable in his own mind to identify two separate acts, or sexual offences, three days apart and it was on that basis that he found no case to answer. We called in aid in our approach to the importance of the statements in what I have already taken the Court to in KBT at 423 that one cannot deduce from generalised occasions that a single occasion occurred.
In our respectful submission, that reflects the reasoning of this Court in S v R and, in particular, for example, the judgment of Justice Toohey at page 283 where his Honour said, in our submission, that you cannot reason that if acts occurred - that if there was a frequency of acts, then a single act must have occurred, in that his Honour said in this particular case of S:
There was a real likelihood that they would convict the applicant on the basis that since acts of carnal knowledge were frequent, an act must have occurred during each of the periods mentioned in the indictment.
Similarly, Justice Dawson, back at page 276, at about point 4, expressed the importance of understanding what is permissible in that respect and that his Honour stated that:
it is more likely that the jury reached their verdict without identifying any particular occasions. Indeed, that is virtually inevitable because no means were afforded the jury whereby they could identify specific occasions. As I have indicated, such a result is tantamount to their having convicted the applicant, not in relation to identifiable offences, but only upon the basis of a general disposition on his part to commit offences of the kind charged.
So our submission is one cannot start from the proposition that the evidence proves a generalised disposition that the accused has done this frequently, therefore we can be satisfied he did it on one occasion. One must start from proof of, here, the sexual offence that was in issue and what is the link? How does the evidence that is to be adduced prove that particular offence or that fact in issue? To do otherwise is to start from the premise of propensity and then to deduce the proof of a particular occasion.
In the judgment of their Honours Justices Gaudron and McHugh at page 288 under the topic of the requirement for certainty as to the offence charged, their Honours expressed the view that:
Indeed, in view of the way the matter was left to the jury, it might even be possible that, in relation to one or all of the counts, individual jurors had no specific act in mind, but simply reasoned from the evidence as to frequency that the applicant committed one such act within each of the specified periods.
In our respectful submission, that reasoning is not permitted for the reasons explained by the Court, namely, the common law’s requirement that there needs to be identification of a particular transaction and the assessment of whether or not the admissible evidence proves that transaction other than by a propensity or other than by other impermissible routes.
Here, in our respectful submission, perhaps another way of expressing that difference is that one cannot reason that if it occurred lots of times there must have been a first and a last and they can be notionally designated as such. That has been held to be insufficient and the discussion of the Victorian Court of Appeal in R v DWB (2008) 20 VR 112, on our list of authorities.
BELL J: I am sorry; what was the name of that case again?
MS SHAW: R v DWB, No 20 on our list, if the Court pleases.
BELL J: Thank you.
MS SHAW: In essence, the difference between the notional identification of an act to be proved, compared with the evidence identifying a distinct occasion, which is what is required to prove the offence. We say absent the proof or the identification of that occasion, the admissibility of evidence cannot be assessed, questions of propensity cannot be assessed and, indeed, as ‑ ‑ ‑
KIEFEL CJ: I think you covered those matters earlier, Mrs Shaw.
MS SHAW: Thank you, your Honour. If I could perhaps just conclude on that topic, your Honours. It was in Justice Dawson’s judgment at page 276 that his Honour referred to such an approach as being upon the basis of a general disposition on his part to commit the offences to reason from generalised conduct.
So, your Honours, in our respectful submission, coming back then to the trial judge’s approach and in fact his conclusion that on the basis of all of the evidence it was too generalised for him to delineate two occasions, three days apart - I pause here to say that in relation to the Fiji period that the parents were away the evidence of the complainant about that, apart from the two acts of fellatio that have been referred to, was that at appeal book 34, line 33, the totality of his description of the evidence as to any sexual offences during that period was that they were the same as every other time and that of course incorporated the variety of acts that had been raised in his evidence.
So, therefore, in the wake of that evidence confronting him, the trial judge formed the view that he could not unwrap or delineate two occasions that were at least three days apart and therefore the evidence simply did not rise to that level. Insofar as the Court of Appeal addressed the evidence below and what the learned trial judge had concluded, we submit that the Court of Appeal’s reasons do not engage in a detailed analysis sufficient to warrant a departure from the trial judge’s conclusions, bearing in mind the advantage the trial judge had.
Justice Peek, who allowed the appeal, in effect, without embracing Chief Justice Kourakis’ approach to the issue of construction, in our submission, his analysis of the facts, at appeal book 243, paragraph 111, refers and relies on Chief Justice Kourakis’ summary without grappling with the matters with which the learned trial judge was having difficulty.
We remind the Court that of course the Chief Justice in his approach to the evidence at paragraph 4 of his judgment at page 215 assumed the correctness of the trial judge’s findings below that BT was unable to give evidence about specific occasions he recalled. So his Honour’s commentary on the evidence effectively accepted the finding below that the evidence was too generalised and effectively took, we submit, a different construction of the law to that which had applied below.
It is our submission that, irrespective of how the “no case to answer” issue is resolved, there was a fundamental defect in the Court of Appeal’s disposition of this appeal in that while the record reveals that permission to appeal was granted at appeal book 259, and detailed submissions regarding permission to appeal were made, the leading judgment of the Chief Justice simply notes, at appeal book 215, paragraph 2 of his judgment, but never resolves that issue.
The Director, we submit, was seeking to exercise an exceptional right to appeal against an acquittal, for which permission was a condition precedent. The relevant provision is section 352(i)(ab) of the Criminal Law Consolidation Act. In an earlier decision of the South Australian Full Court, R v Brougham (2015) 122 SASR 546 - No 12 on our list - the Court of Criminal Appeal had identified that such applications would not readily be granted due to important considerations of double jeopardy.
Chief Justice Kourakis’ reasons do not address why permission was granted. This was an important issue and a failure to give reasons, we submit, was an error of law. As this Court has held in decisions such as Fleming v The Queen (1998) 197 CLR 250, in particular at paragraphs 30 and 37, which is on our list at No 2, there is no reason to infer that relevant principles or considerations were taken into account and outweighed by others. Reasons for judgment in that context ensure not only that justice is done but that it is seen to be done.
We accept that the necessity for reasons may turn on the importance of the issue, as was observed in this Court in Wainohu v the State of New South Wales (2011) 243 CLR 181 at 56, but it cannot be doubted here the issue was an important one. Indeed, in Malvaso v The Queen (1989) 168 CLR 227, this Court held that the failure to determine permission was a critical matter and it could not infer from the ultimate disposition that it had been given distinct and separate consideration and raised an important question of law.
We submit this is not a case where, had the matter been addressed in the reasons, the answer to the question whether permission was appropriate was in any sense inevitable, but Justice Peek’s reasons demonstrate that the matter was one of substance. Justice Peek was only prepared to grant permission on a footing, in which the other members of the court did not join, that the matter could be remitted for further hearing before the trial judge. On that footing to the extent that the appellant had a prospect of acquittal before the trial judge that prospect would not be lost on that remitter but, moreover, the appellant would not be submitted to a separate trial.
On the footing adopted by the other four members of the Court, a fresh trial was required. Double jeopardy considerations, therefore, loom large and the obvious possibility that this trial judge may have acquitted the appellant, in any event, would be lost. The question then arises, on what basis ‑ ‑ ‑
KIEFEL CJ: It might be thought that at least one could observe that the fact the Court of Criminal Appeal sat five judges to determine it might suggest that it was considered to be an important question. One could hardly say that the Chief Justice was not aware of the provision because his Honour spends some pages considering transitional provisions to determine whether or not section 352(1)(ab) applies.
MS SHAW: Your Honour, there are two aspects to that.
KIEFEL CJ: Yes.
MS SHAW: The first is that the transitional provision was raised on the basis that it precluded any appeal by the Crown at all because this was a later provision inserted.
KIEFEL CJ: Yes.
MS SHAW: But, quite apart from the transitional which turned on its own construction and interpretation, there was quite a separate argument – as is detailed in the reasons of Justice Peek – that irrespective of that provision and the transition provision permission should not be granted. One of the reasons, clearly, was that both parties below accepted – as the Crown did below – that Johnson was the applicable law and the Court sat five judges for the purpose of determining whether, indeed, Johnson was correct law. So, as at the time ‑ ‑ ‑
KIEFEL CJ: Why would that not be sufficient for permission to appeal? To have the issue determined?
MS SHAW: There are two reasons, your Honours. One is that the appellant faced a trial on the basis of Johnson. Secondly, in terms of the Court’s decision in Johnson, the Court did not overturn Johnson. In fact, the Court simply distinguished it and said factually it was different. So that, in our respectful submission, does not support a grant of permission to appeal, that is, Johnson was not overruled. The Crown ‑ ‑ ‑
KIEFEL CJ: But, that is in the result.
MS SHAW: I am sorry, your Honour.
KIEFEL CJ: That is in the result. The issue is there and it needed to be ventilated. That is sufficient for the Court to constitute itself and proceed to a hearing of the appeal.
MS SHAW: We do not take issue with the Court engaging five judges to seek to determine the question of permission and whether or not the decision was right or wrong. The very purpose, we submit, of the need for permission is to put a restraint and protect an accused from double jeopardy and there are many means available where that acquittal could be preserved and important principles of law can be ventilated and decided upon.
In other words, the questions of law could have been determined – that Johnson was wrong – but permission not granted because here both parties had accepted the correctness of Johnson below and, in fact, the appellant had agitated the Crown to reserve a question of law before the close of the Crown case on the basis that, clearly, a trial was being run, forensic decisions would have to be made, the accused had to make a decision as to whether he was going to give evidence. All of those matters, if there was a serious question of law, could have been the subject of a reservation of a question of law, even after the verdict.
So, in other words, there were other mechanisms in place, we submit, importantly – bearing in mind the principle of double jeopardy – to address this question of law that the Crown wished to agitate. Indeed, the findings of the Chief Justice in that respect are specifically that he distinguishes Johnson and there is a notice of cross‑contention in this Court seeking to, effectively, contend that it is incorrect.
So, the powers of the Full Court specifically contemplate that reservations of questions of law under 351(2) can occur where a defendant has been acquitted and there is a significant issue, no doubt, about whether or not the law that was applied to that acquittal ought to continue to be the law, and it cannot, in that respect, invalidate or otherwise affect the acquittal.
So, the legislation specifically contemplates another route which does not require the accused’s acquittal and the principles of double jeopardy to be breached. In our respectful submission, here, bearing in mind that either the Court of Appeal allowed the appeal because they impliedly rejected the approach in Johnson, although, as we have said, it is plain that the Court distinguishes it on the facts in its reasons, or because they simply made a different evaluation of the evidence that was before the trial judge. On either basis, we submit, this was not a sufficient basis to quash the acquittal. Taking that first possibility, to the extent that the Court of Appeal implicitly departed from or qualified the effect of Johnson, as I have said, that could have been achieved by referring a question of law during or after the trial rather than by an appeal exposing the appellant to double jeopardy on a basis that was inconsistent with the conduct of the trial below.
To grant permission was to permit the appeal to be conducted on a different basis to the way the trial progressed below. While it is true to say that the trial judge had to accept Johnson was correct so that there was, in one sense, no point in the prosecution contending otherwise at trial, the fact is there is an opportunity to refer a question of law to clarify the status of observations in Johnson before forensic decisions were made and the prosecution elected to proceed and attempt to comply with any requirement to delineate the offences consistently with Johnson.
Alternatively, if the Court of Criminal Appeal simply evaluated the evidence differently from the trial judge, that is not an appropriate basis for a grant of permission to appeal, particularly where the judge had the benefit of hearing the evidence and where the Court of Appeal’s treatment of ‑ ‑ ‑
KIEFEL CJ: The identification of error in the Court below is always sufficient for permission to appeal and that is often the basis of permission, is it not – that the Court, on appeal, actually considers the argument to see if error is identified and that forms the basis of the permission.
MS SHAW: Here, of course, we are dealing – it is an acquittal and, whereas for a conviction ‑ ‑ ‑
KIEFEL CJ: No, error in the judge’s decision below.
MS SHAW: Yes. If there was an error of law in the judge’s decision below ‑ ‑ ‑
KIEFEL CJ: Yes.
MS SHAW: ‑ ‑ ‑ that has not been suggested, that there was an error of law because his Honour applied Johnson and the Court of Appeal held that it was, effectively, still governing this case – the law in ‑ ‑ ‑
KIEFEL CJ: Does not the effect of the Chief Justice’s reasons that the judge below misdirected himself as to the operation of section 50 and, in particular, section 50(4)?
MS SHAW: With respect, he does not suggest he has misdirected himself. What he concludes – which we took the Court to earlier – at paragraphs 50, 51 and 52 in the application to the case – to this case of Johnson and his discussion of the law – was simply to reassess the evidence in a very limited way. The application is, in essence, a summary by his Honour of the evidence without the benefit of and without factoring in the agreed fact that the accused did not complete his teaching degree until 1978. Therefore, the events as described by his Honour the Chief Justice in terms of timing cannot be correct. Secondly, including in his synopsis of the evaluation of the evidence, the fact that it stopped when [BT] was about 17 or nearly 18 ‑ ‑ ‑
KIEFEL CJ: Is not the different path taken by the Chief Justice from the judge below identified in particular but not solely in paragraph 43?
MS SHAW: He has certainly taken a different view of the law ‑ ‑ ‑
KIEFEL CJ: Yes.
MS SHAW: ‑ ‑ ‑ than that applied by the judge below. But, the judge below applied Johnson. In our respectful submission, his Honour is not suggesting that Johnson is incorrect. So, there is no suggestion that this particular judge below has ignored the law, has misunderstood the law. He proceeded upon a basis that was accepted by both Crown and defence. In that respect, can I simply refer the Court to the remarks of Justice Peek in R v Brougham that I have already taken the Court to, that the provisions – the applications can relate to two different areas of the law in relation to Crown appeals, one concerning the elements of the offence and, secondly, that a contention that the evidence was insufficient to prove one or more of those elements. His Honour says at 568:
the mere fact that the trial Judge errs in deciding that there is no case to answer will not necessarily be sufficient to warrant a grant of permission to appeal, for the prosecution case may well still be quite weak and such that an acquittal may be called for in any event.
Here, of course, the strength of the Crown case below was limited to the evidence of the complainant which was markedly inconsistently with that of his mother. On the mother’s evidence, bedroom three allegations could not have occurred because on the mother’s evidence, Mr Hamra did not commence visiting until after [B] had moved into bedroom two. That is just one example. But, there was no support from the mother for the
circumstances surrounding the happening of the events that were in question in that respect.
But, importantly, as paragraph 65 of his Honour Justice Peek’s synopsis of the evidence addresses, there is a residual discretion incorporated in the language of the statute in that connoted by the use of the term “may allow”. That is the question of permission. So, the reason, in our respectful submission, is that this section in our Act is framed in terms of permission is so that all of the double jeopardy considerations can inform the grant of permission.
Secondly, if there is a new approach to the law, which, of course, is what the Hamra decision represents, it is different to and contrary to the approach of a five‑member court in R v Little that applied KBT. It is contrary to a three‑member court in R v M, BJ that applied KBT. And, of course, it is contrary, in the respect in which your Honour the Chief Justice has raised it, to Johnson.
So, as at the time of this trial, both Crown and defence applied the law that then existed. In our respectful submission, one of the matters that would inform residual discretion is that this accused had a trial according to the law as it then existed and there was an opportunity for the Crown to seek to revisit it, either during the trial or, indeed, subsequent to the acquittal on a basis that did not involve a necessary application to put the appellant in jeopardy a second time.
So, in our respectful submission, that goes to why Justice Peek, in his decision, wrote detailed analysis of the law as to permission and gave it very serious consideration and would only grant permission if it went back to the trial judge so that, effectively, he would not be put in jeopardy to the extent of a fresh trial.
In our respectful submission, there are no factors in this case which drive towards a grant of permission but, more importantly, the appellant has not had the benefit of any reasons that might expose whether the Court took into account, or did not take into account, matters that were properly required to be taken into account, most importantly, double jeopardy. The absence of any reasons on such a serious matter, in our respectful submission, that vitiates the Full Court judgment. If the Court pleases, those are our submissions.
KIEFEL CJ: Thank you, Mrs Shaw. Yes, Mr Bleby. You might just give us a moment to read the outlines.
MR BLEBY: If the Court pleases. We will be addressing the matter of Chiro first.
KIEFEL CJ: Yes, Mr Bleby.
MR BLEBY: Thank you, your Honour. In the matter of Chiro each of the grounds of appeal is infected by an inaccurate premise and this is that the jury had found the appellant guilty of two or more sexual offences. That language pervades both the appellant’s written and oral submissions. It is this premise that ultimately underpins the complaint that the verdict is uncertain in that we do not know which offences were found by the jury to have been committed in the absence of a special verdict or questions and it is the premise pursuant to which the appellant demands that he be sentenced on the most favourable view of the facts as an alternative.
This premise is most clearly on display, not just as a matter of language but as a matter of principle, in the appellant’s reply submissions at paragraph 20 that the sentencing process:
should have been constrained by an assumption necessary to avoid punishing the appellant for underlying offences in respect of which, conceivably, the jury positively acquitted him.
The fallacy of this assumption lies in the obvious response which was made by, amongst others, I think your Honour Justice Edelman, this morning. The appellant was not acquitted of anything and the question of the certainty of the verdict and the appropriate basis for sentencing, absent questions being asked of the jury, starts with the incontrovertible proposition that the appellant was convicted of one offence only, being that of a single count of persistent sexual exploitation contrary to section 50 of the Act.
KIEFEL CJ: There was some discussion this morning about whether or not the reference to there being underlying offences ought to be distinguished from the conduct which the jury would have found as a fact.
MR BLEBY: There was.
KIEFEL CJ: The acts of sexual exploitation are really perhaps what the appellant should have been referring to, but that does not deny the general tenor of the argument, does it, that, for the purpose of sentencing, the sentencing judge might need to know the particular acts of sexual exploitation upon which the jury based its verdict?
MR BLEBY: As I will come to, your Honour, no more than in the case of the charge of murder where the intention was to kill or inflict grievous bodily harm; in the case of trafficking offences, what was the conduct that gave content to the actus reus.
KIEFEL CJ: Except that here one does not have the complication of the path perhaps being a different path as between members of the jury. Here we know that they have to be ‑ ‑ ‑
MR BLEBY: Be relevantly unanimous on the acts.
KIEFEL CJ: Exactly.
MR BLEBY: I need to build up some propositions, your Honour, in order to get to that point. It would be less useful if I waited indirectly before I established some more grounding propositions.
KIEFEL CJ: Certainly.
MR BLEBY: Can I just flag on this one aspect which is the expression that your Honour Justice Edelman used this morning that the reference “offences” via the facility of section 50(7) operates as a dictionary of the acts and it is no more than that, but it does not answer the question of how do we deal with the need for extended unanimity and I need to develop my submissions to get to that point.
EDELMAN J: When you do – I do not want to interrupt you now – it would also help if you would mention what the respondent’s position might be in relation to provisions such as section 321A of the Criminal Code (WA), which, for the most part, is identical to the criminal provision here except for the fact there is an express exception where there are four or more acts that would otherwise constitute offences that the jury is not required to be unanimous as to any of those acts.
MR BLEBY: That is not unlike, your Honour, the latest iteration of the Queensland provisions, which again expressly abrogate any requirement of extended unanimity. That is a drafting choice which, if you like, deals with the ordinary difference between a defence for relationship and a defence comprised of acts. You can keep it of acts but Parliament can, as has been recognised in the cases, legislate out any such requirement of unanimity. Where it has been legislated out, the answer is quite easy and it is the clearest case. Where it has not been legislated out, then I have to answer the question.
EDELMAN J: The point is the failure to legislate out, to use your language. Does that effectively evince a legislative intention to require that any determination as to which acts constitute the section 50 offence only be provided by the jury?
MR BLEBY: The answer is no, but I will come to that. The appellant’s conviction in this case depends in the first instance on two exercises of power and the first is legislative, and I accept it is relatively novel. It is to define the actus reus of an offence in section 50(1) at an unusual level of generality by use of the expression “over a period of not less than three days commits more than one act of sexual exploitation”.
So for the specific offence to be established, that section does not specify how many acts in any greater particularity other than more than one, an infinite number more than one, as few as two, and the period of time simply must be not less than three days.
Then section 50(2) explains what an act of sexual exploitation of a child is. It is an act in relation to the child and it is an act that could be the subject of a sexual offence, if it were able to be properly particularised. A sexual offence, the defined term ‑ this is the point of the dictionary – whatever may be the requirements of the particularity of proof, which is the subject of the Hamra appeal, a charge of persistent sexual exploitation is not a series of charges of a series of sexual offences. It is a charge of a single offence comprising multiple acts in relation to the child in question.
That identifies then a second exercise of power which concerns your Honour Justice Bell this morning – that is, the Director’s decision to charge. The Director could charge an accused. Let us say in this case there are multiple individual sexual offences, as those terms are defined under section 50(7), certainly where they are able to be separately identified, delineated, or he could charge a single offence of persistent sexual exploitation in relation to those same acts. The decision to do so is not reviewable and even if ‑ ‑ ‑
BELL J: And in no circumstance an abuse?
MR BLEBY: No, your Honour. It is very difficult to see a circumstance in which that could be said to be an abuse.
BELL J: If the Director were to charge as a section 50 offence two distinct and identified indecent assaults committed over a period of more than three days, that you say is purely a matter of expression, notwithstanding no difficulty in the ability to particularise them.
MR BLEBY: I do say that, your Honour, and that is the authority of the South Australian Supreme Court in the case of R v LBK [2017] SASCFC 7 – it is not actually on either of the lists, I think, your Honour. That is the authority in any event, your Honour. The difficulty of course - the proposition is to say well, it could be one; it could be the other. Where one may provide what we might say a greater certainty of what the jury found by way of fact then the question is well, is it an abuse to do otherwise?
If it was only two offences ‑ your Honour’s question ‑ no because there would be no less certainty because it has to be more than one offence in any event. So we would know in that situation either way. Take the example of 10 - 20 offences that probably could be particularised with a level of specificity required by the common law. Would that be an abuse?
It really demonstrates the answer because trials are very human undertakings and the Director is entitled to lay either way, according to what Parliament has prescribed, and the Director needs to make practical decisions about the evidence, not just theoretical decisions about what the case to answer would be on the highest of the law.
The Director is always going to be faced with the difficulty of predicting how the evidence would come out at trial. Parliament has made a decision to address the paradox of the more offences you have the harder it is to get individual convictions because of the difficulty in particularising. That was the paradox that was discussed earlier this morning. Parliament has said we can do that, that falls within the Director’s discretion and there can be no abuse in availing himself of that.
KEANE J: Without worrying about something as high as abuse on the part of the Director, is it not a concern that the Director can charge six sets of particulars, as here, an offence under section 50 and then argue to the jury that you need only find the first of these, the kissing acts made out, to secure a conviction and then say, “Well now, Judge, the accused has been convicted and we want to proceed to sentence on the basis that his sentence reflects guilt on items 1 to 6 in the particulars”. Why would not that sort of circumstance be the sort of thing that the court might be astute to prevent in the exercise of its discretion to call for special verdicts so that then when the court proceeds to sentence the basis on which the sentence is to proceed is established by the verdicts of the jury?
MR BLEBY: We need to distinguish, with respect, between what is capable of granting a conviction and what this case is. If it is the Director who invites the jury only to convict on two occasions of kissing then reprobates for the trial judge in the directions – in sentencing, that might be one thing. The Director’s case in this case was that the appellant was guilty of each of the pleaded particulars ‑ ‑ ‑
KEANE J: Pardon?
MR BLEBY: The Director’s case was that the appellant was guilty on each of the pleaded particulars. The trial judge directed the jury that as a matter of law they could be satisfied of guilt on the basis of a minimum of two accounts of kissing in circumstances of indecency which were the subject of evidence not less than three days apart. So, your Honour, there is an anomaly, if you like, between the Director’s case and the minimum that is required by law but that – and insofar as that anomaly might be expressed either abstractly or in a particular case as a matter of concern, the concern is ‑ ‑ ‑
KEANE J: Why would not the anomaly be addressed by the exercise of the discretion to ask separate questions or take special verdicts?
MR BLEBY: Well, that really brings me to the next sort of tranche in my submissions, your Honour, is that ordinary principle says that is not necessary in any case where there is, if you like, a range of possibilities of the facts that establish the actus reus of the offence where the Director says, say in the drug trafficking cases, planned, financed, executed, whatever, the trafficking acts were that gave rise to a conviction of being knowingly concerned in the importation of drugs – this is the case of Cheung which I will come to in a minute ‑ and then not knowing the basis that the jury has accepted.
Now, I am not forgetting the Chief Justice’s request for me to deal with the requirement of extended unanimity but as a matter of general principle there is no difference in that, that is what a sentencing judge is required to deal with all the time. The protection that is put in place on that account is the sentencing judge can only proceed on any factual matter found against the accused on the basis that the sentencing judge finds it beyond reasonable doubt.
BELL J: The difference is that in the case of knowing concern in the importation of drugs, the jury by its verdict finds the accused has engaged in that conduct. Here, the conduct is satisfaction that the accused has engaged in more than one act of sexual exploitation. As Mrs Shaw has been at pains to point out, it is not said to be a continuing offence. It is an offence that depends upon proof of acts of sexual exploitation. In that context, when you speak of ordinary principles of sentencing, we are confronted with a somewhat unusual provision. In some respects, that works in your favour in the sense that it is a provision that deals with autrefois acquit. One of the reasons for the need to identify an offence with certainty is to protect a person’s right to plead autrefois acquit. This unusual bespoke provision deals with that but it is not necessarily an answer to say conventional principles of sentencing have the judge determining the facts consistent with the verdict when one has an offence framed in this way.
MR BLEBY: With respect, we need to be careful about that distinction between a continuing defence in particular occasions. If we take the example of R v Cheung 209 CLR 1 which is number 3 in the tab on the authorities, what the Court was faced with in that case was on a charge of being knowingly concerned in the importation of almost 50 kilograms of heroin the prosecution’s primary case was based on the evidence of an accomplice and that evidence was to the effect that the accused had been involved in the instigation, planning, co‑ordination, financing and supervision of a single act of importation but over a period of about nine months and any one of those evidenced steps would have been sufficient to have made out the charge. If that evidence and certain other evidence had not been accepted, the prosecution case would still have been good but limited to proving the accused’s involvement of a much shorter period of time.
BELL J: In the one importation?
MR BLEBY: In respect of the one importation. The jury found the accused guilty for the purposes of the…..sentence and the trial judge accepted the evidence of the accomplice, that is, the entire nine‑month period. Now, I accept, your Honour, it is a single ‑ ‑ ‑
BELL J: All of that is uncontroversial.
MR BLEBY: I accept it is still a single act of importation but the facts that contributed to the actus reus of the offence did indeed cover a nine‑month period of time and the accused would be able to plead autrefois acquit in respect of that entire matter had the accomplice not been accepted, autrefois convict on the basis that the evidence of the accomplice had been accepted.
BELL J: In relation to that single importation.
MR BLEBY: Yes, your Honour.
BELL J: No issue of autrefois acquit that is comparable arises.
MR BLEBY: But in respect of, say, the planning activities eight months earlier, your Honour, itself capable of providing the actus reus to the offence given that the importation happened, yes. There is no qualitative difference, in my respectful submission.
KIEFEL CJ: I appreciate that in simple terms what is being said is that any two of the six particularised acts of sexual exploitation are sufficient to qualify for the – as the actus reus of the offence charged under section 50. The problem is the sentencing judge is then faced with a term of life imprisonment and your answer in summary to that is that in determining sentence, the sentencing judge determines for himself or herself beyond reasonable doubt which acts of sexual exploitation were committed. That is essentially your ‑ ‑ ‑
MR BLEBY: Yes, your Honour, and this is the point that my learned friend emphasised this morning and we need to be very careful here in drawing the distinction ‑ ‑ ‑
KIEFEL CJ: Between offence and acts.
MR BLEBY: Yes, but also on my friend’s reliance on a De Simoni principle which, of course, concerned where the statute itself provided separately identified circumstances of aggravation such that it would raise the offence into a higher category and your Honour Justice Bell, I think, referred to the armed robbery aggravated by an incident of wounding and then that would just – you could not sentence on the basis of wounding if wounding had not been charged. That is one thing.
Here, in circumstances where the incorporation if you like of acts that could be the charge of separate offences if they were able to be properly particularised, I say that is simply a definitional section that brings in types of acts. It does not bring in types of offence at all. That simply allows the judge to apply ordinary principle when it comes to sentencing. The fact that the sentencing judge can have regard to what the maximum sentence is for those acts should they have been charged and approved for sentencing is nothing more than a guide. It does not elevate these acts into the kind of aggravation that were contemplated in De Simoni to effectively make them high level offences, therefore, required to be identified by the jury one by one.
KIEFEL CJ: On this approach, any acts which were found of those particularised which are found beyond reasonable doubt by the trial judge would not be inconsistent with the general offence found under section 50, that is the way section 50 operates and I suppose the underlying concern is that it is, as Justice Bell points out, an unusual provision and to an extent it inverts the process that a jury should go through – gives it to the sentencing judge. You are being sentenced really for what the sentencing judge has found beyond reasonable doubt because the jury may well have just found two acts of kissing as constituting the general offence; this is the tension that is difficult to resolve.
MR BLEBY: This is the tension, your Honour, and I am being drawn inexorably to the impact of extended unanimity.
KIEFEL CJ: I am sorry I have taken you to there too early, you wanted to ‑ ‑ ‑
MR BLEBY: I think it might do to answer that as best as I can straight away. Can I approach it in this way? The question of extended unanimity on the one hand and the question of what the sentencing judge’s role on the other hand do not speak to each other. Can I take the Court to Cheung at paragraph 36 because this is, in my submission, perhaps the best illustration of why that is so where the Court said:
Even if the disputed assumption were to be accepted, there remains a large question as to whether anything follows from it. The necessary consequence of the principles accepted in Savvas, and summarised in Isaacs –
and I will come to those:
is that, provided the facts found by a sentencing judge are not inconsistent with the jury’s verdict, a sentencing judge may well make an assessment of an offender’s degree of culpability which would not be supported by all, or perhaps any, members of the jury.
They have gone on to give the example of murder. If that is the case for matters going to ‑ that are capable of going to elements of the offence but which, in context, go to culpability such as the difference between the intention to cause grievous bodily harm and the intention to kill, if it does not matter that no member of the jury would have found there was an intention to kill but it is still all right for the sentencing judge to sentence on the basis that there was an intention to kill if the sentencing judge finds that to be the case beyond reasonable doubt, there is no reason of logic, with respect, why it is any different in the case of assessing which of the acts are proved to have occurred beyond reasonable doubt.
EDELMAN J: It has to come down to the proposition, does it not, that by failing to include a provision of the type that one sees in Western Australia or Queensland which abolishes extended unanimity Parliament must be taken to have required that the jury make these decisions and not the sentencing judge or, alternatively, on the alternative submission on the applicant that if the sentencing judge were to make the decision, the sentencing judge is required to sentence only on the basis of the minimum acts that could amount to the offence.
MR BLEBY: That is the dichotomy of propositions, certainly, your Honour, and by failing to include a provision like the Western Australian provision all that Parliament has done, in my respectful submission, is said the ordinary position applies, and we extrapolate out the ordinary position from, well, the ordinary fundamental principles which are essentially these. It is the role of the jury to determine whether an accused is guilty or not guilty of the offence charged on the indictment. It is the indictment that determines the issues that are joined. For what it is worth, that is shown at paragraph 4.
Second, 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 but that is the qualified proposition which we have already been discussing ‑ is for the sentencing judge.
Third, if the degree of culpability is an element of the offence charged, like in the De Simoni Case, that will be reflected in the issue presented for trial on the indictment and met by the plea of not guilty.
Fourth, that if the issues resolved by the jury’s verdict may include matters of potential importance between assessment of the offender’s culpability – that is what we have been discussing – that is not unusual.
NETTLE J: Just before you go on there, what do you say about Ms Shaw’s point regarding paragraph 36 of Cheung that the difference is that whereas here each of the constituent acts is an element of the offence found to be proved, what was spoken of in Cheung was not an element of the offence, but merely murder, an exogenous factor bearing upon culpability?
MR BLEBY: If the intention in murder, it is an element of the offence that the accused intended to kill.
NETTLE J: Yes, but motive is not an element of murder.
MR BLEBY: Motive is not, no, your Honour.
NETTLE J: That is what they are speaking about, is it not, at 36?
MR BLEBY: That is what they are referring to, your Honour, but then if I can extrapolate from that, if the question is intention to kill or intention to commit grievous bodily harm, each by itself is an element of the offence. Either would be sufficient but neither on its own is necessary if the other one is found, if I can put it that way. So, that question then goes to culpability, notwithstanding that on its own it is an element.
NETTLE J: Her answer to that is that the difference is that what we are speaking about here is the actus reus, where what you are speaking about is the mental element.
MR BLEBY: Well, then I can go with respect to the Cheung example itself – planning, financing, supervising, executing – any one of those is an actus reus that is capable by itself of making out the offence charged. When we come to the sentencing question, the jury may have found only one, simply that the accused was there at the sending off of the drugs on the importation, and were not satisfied beyond reasonable doubt that the accused had planned, supervised, financed, et cetera, according to the evidence of the accomplice. Any one of those is an actus reus capable of making it out.
The trial judge proceeded, and was right in proceeding – did not err, I should say – in proceeding on the basis that each of those factual elements was satisfied to the judge’s satisfaction beyond reasonable doubt and, in that sense, that is a much closer and better analogy to this situation. Also because of course it radically alters the gravity of the offending for sentencing purposes – radically in that case.
NETTLE J: Thank you.
KEANE J: Mr Solicitor, in terms of Cheung and Isaacs where it is said that the sentencing judge must make up his or her own mind about guilt, consistently with the jury’s verdict, is there not a problem that when the issues are joined on the indictment and the indictment particularises as the acts of sexual exploitation six acts, and particularly when the jury is invited to decide the case or to convict on the basis that it may simply be satisfied on one particular one, is not the difficulty that one cannot know whether the judge’s conclusions as to guilt on the other five particulars are indeed consistent with the jury’s verdict? Because, given what the jury were told, there is a distinct possibility that they may not have been disposed to conclude that items 2 to 6 were established.
MR BLEBY: I will go even further, your Honour. There is a distinct possibility they did not even consider items 2 to 6, yes, and that is why Cheung described the trial judge’s task as a very difficult one. That offers no qualitative difference, with respect, from the ordinary position.
KEANE J: But in Cheung there is no doubt about the consistency of the subsequent finding with the verdict; the verdict on the issues that were joined between the parties on the indictment.
MR BLEBY: Yes.
KEANE J: Here, absent special verdicts or questions to the jury, one is left to speculate as to whether or not there is an inconsistency between the jury’s verdict and the sentencing judge’s view.
MR BLEBY: In my respectful submission, it is no different because the actus reus is simply committing more than one offence over a period of not less than three days, full stop. What then follows is particulars. There is no great attention than there is in Cheung.
KIEFEL CJ: But really one could never know whether it is – I am sorry, I was going to say one could never know that there could be an inconsistency with the jury’s verdict, but here the nature of the offence is such that there cannot be any inconsistency, effectively within the range of the acts particularised the sentencing judge can find anything.
MR BLEBY: That is right, your Honour, with respect. In either case there is – and when we ‑ there is perhaps a useful device of language when we say it has to be consistent. The point is really that it has to be not inconsistent.
KIEFEL CJ: Yes, quite so.
MR BLEBY: And if the jury finds the issue joined to be guilty, that is, that on more than one occasion over a period of not less than three days the accused committed an act of sexual exploitation on the same child, that is the actus reus made out, and it is expressed in an uncomfortable and unfamiliar form of generality. That is Parliament’s choice.
BELL J: If we go back to the invitation you extended to us to sentence according to ordinary principle, what in a case in which the judge has left to the jury a section 50 count and instructed the jury that it is open to return a verdict of guilt if two instances of indecent kissing are established beyond reasonable doubt, what possible warrant is there for the judge sentencing on other than those facts? The offence on the way the matter has been left to the jury is complete upon two episodes of indecent kissing not less than three days apart. What warrant is there for the judge then going on to consider other matters that may or may not have been the subject of the jury’s determination?
MR BLEBY: Because that is a direction of law as to what is sufficient – as long as you get past that hurdle, you have got enough. It does not foreclose the jury from going on to consider all the other matters.
BELL J: It does not foreclose that but, where the matter is left on the basis that it is sufficient that the jury are satisfied beyond reasonable doubt of two acts, what is the basis applying ordinary sentencing principle for the judge then, taking account of a range of other sexual conduct? The offence has been established on the two matters.
MR BLEBY: Perhaps in the context of this case, the best way of explaining that is to ask the Court to go to page 681 of the appeal book, that is the second volume, and in the second paragraph the direction was:
Ladies and gentlemen, going back to element No.3 . . . In order to be satisfied of this element, you must be satisfied that two or more acts contained within the particulars 1‑6 have occurred and be satisfied of that beyond reasonable doubt. It may be that you are satisfied that there was an act of fellatio and an act of kissing on one or more occasions. If these two events were separated by three days and if you are satisfied that the act of kissing amounted to an act of the indecent assault and the act of fellatio the offence of unlawful sexual intercourse, then this element would be proven.
Alternatively, you may be satisfied that he kissed her in a way that amounted to an indecent assault on two or more occasions –
You see, her Honour was offering alternatives rather than presenting in any way exclusively for the jury that two acts of kissing was what they needed to do and we obviously accord ordinary intelligence to the jury to take account the impact of what the trial judge was saying. So, as a matter of law, there can be no complaint about what the trial judge was directing the jury as to what was sufficient, but also pointing out that there was more than one way to skin a cat.
EDELMAN J: So one could just substitute, for example, the examples that are listed by the trial judge with storing, guarding, transporting drugs, each of which amounts to an element of the offence, but none of which the jury needs to inform the court as to which has been found, and some of which might be far more serious than others?
MR BLEBY: Yes, your Honour, with respect.
BELL J: But storing, transporting, all of those activities are with respect to the importation of the quantity of drugs the subject of the importation.
MR BLEBY: Yes.
BELL J: As distinct from here the jury, if one is looking at consistency, the basis upon which the offence was left was proof of two acts of sexual exploitation ‑ ‑ ‑
MR BLEBY: Two or more.
BELL J: Or more, but two would suffice.
MR BLEBY: Yes.
BELL J: And we look to the question of consistency in that context.
MR BLEBY: Yes, and in the drug example one would suffice. The reference point ‑ ‑ ‑
BELL J: But there was never a doubt that one would suffice to establish knowing involvement in the importation of a quantity of drugs.
MR BLEBY: Yes.
BELL J: So, the culpability of the offender is of knowing involvement in that particular importation of drugs.
MR BLEBY: Yes.
BELL J: If one does not interrogate the jury after the verdict to find out on what basis the jury was satisfied, given the way they were directed, one simply does not know that the sexual exploitation found was other than two acts of indecent kissing.
MR BLEBY: One does not. One does not know which acts the jury found. I accept that, your Honour, and that is not a problem, in my respectful submission, and it is qualitatively no different from the drug situation. If we look at it in this way, yes, there was a single act of importation, but there were also a dozen acts of preparation. Here, yes, there was single victim and there was an indeterminate number of alleged acts of sexual exploitation.
BELL J: But the difference is the offence here is not an offence of maintaining a relationship with a child.
MR BLEBY: No.
BELL J: It is an offence that focuses on the acts of exploitation.
MR BLEBY: Yes, your Honour, and my submission is there is no qualitative difference ‑ ‑ ‑
BELL J: Yes, I understand.
MR BLEBY: ‑ ‑ ‑ for the purposes of sentencing.
KIEFEL CJ: Mr Solicitor, whilst we have you interrupted, could I ask you if one looks at appeal book 753, the sentencing judge’s remarks or findings, is it your submission that the sentencing judge has actually determined as a fact beyond reasonable doubt each of the matters listed 1 to 6, or is the sentencing judge proceeding on the basis that the offence implies or necessarily means there has been a course of conduct and I will take that to be the course of conduct?
MR BLEBY: Your Honour, I really rely on line 30:
It follows that I must sentence you on the basis of those facts of which I am satisfied beyond reasonable doubt, consistent with the verdict of the jury.
Then it goes on:
Accordingly, you will be sentenced upon the following factual basis.
Now, as was pointed out this morning, there is no ground of appeal challenging the basis upon which the trial judge then went on to sentence. I always understood this to be accepted until she read paragraph 80 of the written submissions that there could be, on the notice of appeal, no challenge to the proposition that the trial judge found these facts herself beyond reasonable doubt ‑ ‑ ‑
KIEFEL CJ: Yes, I see.
MR BLEBY: ‑ ‑ ‑ and my submission is explicit on the ‑ ‑ ‑
NETTLE J: It was challenged before the Court of Appeal, was it not? At least it appears to me from the notice of appeal to the Court of Appeal that it was.
MR BLEBY: I will have to check that, I am sorry, your Honour.
NETTLE J: I understood that the challenge to the Court of Appeal’s rejection of that ground was really the essence of the principal ground of appeal in this case.
MR BLEBY: Yes, I think on reflection that might be right.
NETTLE J: So both legs, as it were, are embraced; both the legality of what they did and also the propriety of what the trial judge did.
MR BLEBY: Yes. I will check that, your Honour, and your Honour may well be right, with respect, but certainly not in this Court is it challenged. Could your Honours just bear with me for one moment? I think I have covered more ground in perhaps an order that I was not quite anticipating.
Can I perhaps move on to the next topic and it is in response to one theme that comes up from my learned friend’s submissions and these are the submissions both in written submissions from about paragraph 6 through 24 of my friend and emphasised today orally, and this is the highlighting of matters that were raised at trial and indeed the court below, with a view to casting doubt on the prosecution case inconsistencies in evidence, matters that may have spoken against the finding of certain allegations beyond reasonable doubt.
My friend also highlights the events of the trial – that is, the fact that the jury asked certain questions, there was an impasse at one point, that a Black direction was given which leads to my friend’s submission that the verdict should not be taken to signify that the appellant committed more than two acts, mainly sexual offences, and also that having regard to the course of the trial there is every reason to think that the verdict may reflect satisfaction of two occasions only and/or certain only of the particulars.
Now, that, in my respectful submission, transgresses the very principles that we have been discussing that what the trial judge was doing and required to do was make those findings herself beyond reasonable doubt for the purpose of sentencing and not to speculate upon what it was that the jury had found. That is ordinary principle.
Now, the concern, of course, that underlies all of this, and I will not spend too much more time on it, that I apprehend at least certainly motivates a number of the questions that your Honour Justice Bell has asked me, that they might be being sentenced on something that the jury has not found is that, as a matter of principle, yes, that is absolutely the case but what has been inputted into this by the common law is the requirement for the trial judge to find these things beyond reasonable doubt. That is a safety. It is not the same, I accept that; that there can be, as I say in response to your Honour the Chief Justice’s questions, no complaint that is what occurred in this case.
Of course, that then leads to the fifth of the general propositions in Isaacs, and I have already covered the first four in my exchanges with the Court, and this is, just to be clear because there are really two sets of propositions in Isaacs and we deal with both of them – Isaacs (1997) 41 NSWLR 374. So the principles I have been traversing appear at pages 377 through 378, the fifth of those propositions, of course, is that:
There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender.
That, of course, speaks directly to ground 3 on this notice of appeal. Now, it may be, of course, in any given case, and indeed in many cases it may be thought likely, that where the trial judge has this obligation to find facts relevant to the sentencing discretion beyond reasonable doubt and not inconsistent with the verdict, the trial judge will often come to a very favourable view of the facts. That is quite a likely proposition in many cases.
But that is not mandated as a necessary consequence, and any proposition that it is so mandated, absent questions being asked, of course is to cut directly across the inscrutability of the jury verdict, and of course Cheung is a very good example of those propositions operating in context.
NETTLE J: Mr Solicitor, this idea of eschewing special verdicts or questions is one of relatively recent origin. If one goes back to Veen as the appellant does to Justice Stephen’s judgment and English cases on which it is based, as indeed it was in Victoria, it used to be pretty common.
MR BLEBY: Indeed, your Honour.
NETTLE J: I wonder might it be thought that the views expressed in Isaacs in New South Wales and subsequently in Cheung in this Court were really based on a view of the law which could not have contemplated for a moment the enactment of provisions like section 50 of the Act with which we are concerned, and if that had been contemplated, there would have been perhaps left open greater opportunity for trial judges to resort to special verdict.
MR BLEBY: It is very hard to answer that sort of counterfactual form question, your Honour.
NETTLE J: Would it be an inappropriate way for this Court to conclude, given the extraordinary nature of these offences which have now been enacted, what was said in Cheung in relation to something highly different is not necessarily applicable?
MR BLEBY: If the only substantive difference that comes out because of the unusual nature of these offences is the need for extended unanimity, in circumstances where it is quite clear that the jury must be directed as to the requirement of extended unanimity, and indeed it is an error not to, that direction having been given, then, with respect, it seems there is very little left to think that is not safely addressed by these matters of general principle when asking questions.
EDELMAN J: In fact, it must go further than that, must it not? The corollary of what you are saying is that if questions are put to the jury, then it would really just be a matter of pure fortuity as to whether an accused person is found to have been convicted on the basis of more than two acts and the fortuity would simply be whether the jury had decided to continue deliberating after having reached agreement on two facts. So the determination would ultimately depend on a fortuitous circumstance of how the jury decides to conduct its deliberations.
MR BLEBY: And, as I will come to, your Honour, one of the difficulties that we get to with the questions that might be asked then, is that if the jury simply took the direction, as was given to them in this case, did not then reason further and said, well, we have got there, did not ply their minds to other counts – we do not know which ones, other counts, they may have started with the most egregious, they may have started with the first in chronology – then, as a matter of logic – and this is the matter that your Honour Justice Bell pointed out to my learned friend this morning ‑ autrefois convict/acquit would then apply in respect of all offences over the period ‑ ‑ ‑
NETTLE J: But to take up something else Justice Bell said, if the jury came back and said “We just found two kisses and so on that basis we find the offence proved”, would not the sentencing judge sentence on the basis of two kisses and no more?
MR BLEBY: Yes, your Honour, but the accused would still be able to invoke autrefois convict or acquit irrespective ‑ ‑ ‑
NETTLE J: If that is what the Parliament has enacted, that is what the Parliament has enacted.
MR BLEBY: Certainly, but that is why I said the logic of the section denies the necessity of asking questions ‑ ‑ ‑
EDELMAN J: Given the purpose for which the provision was enacted.
MR BLEBY: ‑ ‑ ‑ given the purpose, yes, which your Honour expounded on by reference to the second reading speech this morning.
KEANE J: What there is not in the second reading speech or in the language of the statute is any indication of legislative intention that jury trial of the gravamen of the offence – when I say “gravamen” I mean the offences that stand behind the acts which happen to be acts of sexual exploitation that stand behind the finding of guilty, what one does not see is an indication of an intention that jury trial in relation to that should be displaced.
MR BLEBY: I am not sure I understand what your Honour means by “displaced”.
KEANE J: Well, one knows that there is a discretion in trial judges to call for special verdicts or to ask questions of a jury, to indicate to the jury two offences will be enough but I will be asking you as well to indicate whether or not you are satisfied beyond reasonable doubt in relation to particulars 2 to 6. Now, that is a way in which the anomaly with which we are wrestling could be resolved. We do not have any indication in the legislation or in the second reading speech that the legislature anticipates that the role of the jury, as the constitutional tribunal of fact, is going to be displaced to the extent that it has been in this case when there is a discretion – when there is a well‑established and well‑known discretion going back to Veen and beyond – that would enable that problem to be resolved.
MR BLEBY: The difficulty, with respect, noting up the absence of any expression of intention with respect to that, is that equally it can be said that there is nothing to suggest that the Parliament did not think that this would not be treated in any way other than the discretion would ordinarily be treated and that the Parliament saw this as qualitatively different from the other kinds of cases that we have been discussing.
KEANE J: Such a limitation in practical terms on the role of the jury as the tribunal of fact, one would have thought that that might have called for some indication of legislative intention.
MR BLEBY: That is, with respect, premised on a view of that quality of limitation on the jury’s role which I do not accept.
KEANE J: Well – I mean, one can say, well, it is not really a limitation because, you know, we look at a verdict on what is in section 50(1), and one can see technical arguments, maybe none the worse for that, but on the other hand, looking at the matter more broadly in terms of the justice of sending someone to gaol on the footing that he is committed the acts in particulars 1 to 6, as opposed to the acts in 1, one might think that there has been a substantial shift in the balance of constitutional fact finding, if you like, from the jury to the judge, when that shift would not occur if the discretion, which we all know exists, were exercised.
MR BLEBY: Well, that, with respect, suggests that the discretion simply exists as it has always existed and would be exercised as and when it might at any time ‑ ‑ ‑
KEANE J: Sure.
MR BLEBY: ‑ ‑ ‑ be exercised.
KEANE J: That is right.
MR BLEBY: That then says was it an error of the Court of Criminal Appeal to say it did not need to be exercised in this case. That reduces to that question, with respect ‑ ‑ ‑
KEANE J: Well, and then we would look at the reasons why the Court of Appeal concluded that that was so ‑ ‑ ‑
MR BLEBY: Yes, yes.
KEANE J: ‑ ‑ ‑ and what one does not see in their reasons is concern about the shift in responsibility for making findings of fact which bear on criminal responsibility. Now, on one view it might be said they bear directly on the actus reus. Even if one does not accept that analysis, they nevertheless bear in a strong practical way on the extent of criminal responsibility.
MR BLEBY: Culpability, I would prefer ‑ ‑ ‑
KEANE J: Culpability.
MR BLEBY: ‑ ‑ ‑ that phrase, yes, which is entirely ordinary, with respect, and that is ‑ ‑ ‑
KEANE J: Well, yes, but not a consideration that loomed large or indeed at all in the consideration of the court below.
MR BLEBY: The reason, I think, for that is the court below, when it is considering whether or not questions should be asked, is asking – can I take a step back – the court below’s reasons are at page 781 of the appeal book. Justice Vanstone, who wrote the judgment really for the court, was quite clear on the test that there was a discretion to ask the jury for the factual basis for its verdict but, based on Cheung, that there will be very few cases in which that discretion would be appropriate or useful and determined this was not an appropriate case.
Her Honour summarised the seven considerations in Isaacs that militates against exercising the discretion to ask questions in a manslaughter context and they were of course approved of in Cheung; that is paragraph 16 on page 781, and her Honour concluded at paragraph 18, that the trial judge was correct not to make the inquiry.
Now, her Honour identified issues that might arise on making such inquiries. A number of those are reflected in the Isaacs considerations and at paragraph 19, then drew on the orthodox principles that we have been discussing, and what the appellant then lines up is at paragraph 76 of his written submissions, various arguments as to why those matters in Isaacs do not apply in the present case and we have similarly lined up, in our written submissions, matters as to why a number of them are apposite.
If I can speak perhaps to certain aspects of those, bearing in mind that these are presented in Isaacs as non‑exhaustive considerations and in the manslaughter context, of why generally discretion would not be exercised and recognising that the sentencing judge is at least equipped to answer the questions and then positing, of course, that the question here is whether the CCA erred in deciding there was no need to ask the questions, as a matter of discretion.
To say that the CCA’s reasons amounted to error, in my submission, misconceives how we should be looking at those considerations, going to the discretion mentioned in Isaacs. Each of them is expressed in terms of risk and in some aspects the requirement of extended unanimity may well reduce some of those risks, but what is put against is of course the certainty that none of these risks could eventuate, therefore, error in holding that there was no need to ask the questions, in exercise of the discretion.
So, for example, the appellant says that by asking these questions there would be no question of the jury being distracted as the foreshadowing of questions would reinforce the required unanimity position. Now, as an abstract proposition, it might be that there is no distraction that then follows, but framing the proposition in that way does not deal with what the CCA saw as risk. What the CCA said, at paragraph 18 was:
The prospect of having to answer for its findings on specific conduct or types of conduct might have confused the jury in its deliberations on the general issue and, as well, the framing of the question or questions which counsel would have had the judge ask is not necessarily straightforward.
So, if we look at what questions were proposed, at trial there was a request for a special verdict I think, and I accept we can move on to the way it was dealt with at least on appeal.
On appeal, counsel suggests that the jury should have been asked in terms about each numbered particular and what is now put to this Court is a question, what were the two or more sexual offences on which you were unanimously agreed. Now, of course, that merely carries its own problem by using the term “offences”. What we are talking about is acts, but leaving that aside, this does not deal with the question of risk that the court was concerned with and it was the concern of Isaacs.
The Court of Criminal Appeal here accepted that the question about particulars, as formulated, might have elicited a clear response. They accepted that. So, the complaint of error, on this discretionary question, really would seem to require the appellant to demonstrate that the Court of Criminal Appeal erred in holding that there was in any event some risk and concerns that are expressed at paragraph 18 that a jury might have been confused on a general issue, that there might have been disagreement on certain particulars and disagreement on whether conduct occurred more than once, is a practical assessment of risk. It is not an absolutist, prognostication of what would happen.
KIEFEL CJ: Is not most of that premised though on there being no unanimity required as to the acts of sexual exploitation?
MR BLEBY: Your Honour, if we strip it back into an absolutist analysis of logic, yes. But if we are talking about giving the direction to the jury, expecting a general verdict from the jury and not being concerned generally to go behind the jury verdict, we are talking about a jury, not lawyers…..specialists or anything like that. The point is, is not to convolute or confuse or to create the risks thereof. That is why I say this is a practical assessment ‑ ‑ ‑
KIEFEL CJ: You mean we might find error?
MR BLEBY: But that has always been the concern of going behind the jury vote. You could come up with all sorts of errors and, indeed, I think no one would deny the proposition that if we hopped into the jury room and found out what really went on, all sorts of unpalatable truths might emerge. That is why we do not go there because the jury verdict as an institution is taken to carry very particular weight, the principle of finality.
KIEFEL CJ: Where is the danger, in a case such as this where there are six particularised acts, of giving the jury the list of particularised acts and asking them to indicate by a tick or cross which they have found proved and those which they have not found proved?
MR BLEBY: Again because given we are talking about practical questions of risk, first, the first three of those particulars are specified on more than one occasion, X happened. That then will raise the jury to question, okay, how do we answer that. If we say, yes, on more than one occasion, well, how does that help? Does that not provoke further questions because, of course, the complainant in this case gave various pieces of evidence, for example, of kissing - kissing in circumstances of indecency and kissing in circumstances which were combined with other particularised acts, on the information.
So, for example, the victim gave evidence of particular 1 occurring on a number of different occasions. Sometimes the evidence related to particular 1 only, kissing, and we can see that at appeal book 87, line 29 and 88, line 8. Sometimes the evidence of particular 1 was accompanied by notable circumstances of indecency- appeal book 104, line 26; appeal book 105, line 12. There was unparticularised evidence that this kissing and of the appellant rubbing his penis against her happened on more than one occasion - appeal book page 106, line 18.
KIEFEL CJ: I take your point, Mr Solicitor, but really, in practical terms, as you would say, that could be addressed in this particular case by breaking up those particulars and saying on one occasion, on more than one occasion, if so how many. But the point here in relation to the discretion is that there is such a wide range of conduct it may not always be the case. It may be the case where the trial judge is able to simply find the facts but surely it is a matter for the exercise of a judge’s discretion that the jury are the primary finders of fact in relation to the conduct for which sentence should be given. It is not usually a role of sentencing judges to – I know you would disagree with this, you would say this is part of the role – but even if it is questions of degree, the odd nature of this offence, in terms of what courts are used to thus far, does give the sentencing judge a wholly different role.
MR BLEBY: Your Honour, the only difference, with respect, that I can apprehend is that the fact of the requirement of extended unanimity may well render the asking of questions more useful on some occasions. It may provide more clarity. That goes to the question of the exercise of the discretion.
KIEFEL CJ: Yes.
MR BLEBY: It is a very different question to say that when the CCA apprehended matters of risk, in their experience, in their assessment of all the matters, that failing to do so amounted to error, is a very different proposition and because the CCA itself accepted that greater clarity in such a situation could result, they did not shy away from that, that is a discretionary consideration and, you know, we pose rhetorically the question, but where is the error. Maybe it would have helped, does not mean that it was an error not to ask.
BELL J: In this instance, the Director particularised all those acts on which the Director’s case relied.
MR BLEBY: Yes.
BELL J: Was it necessary to do that? Could one run a section 50 case, particularising, say, only two acts of sexual exploitation and then leading on sentence, assuming a conviction, evidence of a raft of sexual misconduct?
MR BLEBY: The answer to that, your Honour, works as a combination of the common law and subsection (4) of the section. Section 50(4)(a) tells us what the information must allege, the period during which the acts of sexual exploitation occurred, and that obviously has immediate relevance to the autrefois acquit point that is brought in by subsection (5), the alleged conduct. I think we will accept that the Director was required to particularise the nature of the acts.
BELL J: Yes. That is what I am coming to, Mr Solicitor. It is incumbent for the Director, within the bounds of 50(4), to particularise all that conduct upon which he relies.
MR BLEBY: Yes, subject to subsection (b).
BELL J: Yes, indeed. So it may not be possible to particularise in relation to time, place or occasion in any close way.
MR BLEBY: No.
BELL J: Accepting that, but nonetheless what must be placed before the jury is the conduct upon which the Director relies which will consist of more than one act of sexual exploitation.
MR BLEBY: Yes.
BELL J: But in any case it will always be sufficient on this analysis for the judge to direct that two identified acts suffices for conviction.
MR BLEBY: As a matter of law, yes.
BELL J: Yes.
MR BLEBY: And then for the Director to urge on the judge at sentencing that sentencing should occur on the basis that all acts were committed is to no way reprobate from that position.
BELL J: One simply does not know whether there is inconsistency when the jury is deliberating.
MR BLEBY: That is right. Yes, your Honour, and to do so is not inconsistent with that verdict on the offence as charged.
BELL J: Save that some might think it inconsistent if the jury had considered the matter, say, of acts of fellatio and concluded that they were not satisfied and then learnt that the judge in sentencing had placed particular emphasis on the seriousness of that conduct.
MR BLEBY: Yes, and that is no different from any of the other types of case that we have talked about.
BELL J: It is different from all the other cases in which the jury’s verdict is a verdict in respect of the commission of the actus reus, Mr Solicitor.
MR BLEBY: In that sense, yes. I think your Honour understands the import of my submission.
BELL J: Yes, I understand.
MR BLEBY: Perhaps I can have one more go, in that it might be inconsistent with the resultant deliberations but not with the verdict.
BELL J: Would another factor in favour of the exercise of the discretion to ask the questions be that this scheme does require the Director to lead evidence before the jury of each of the acts of sexual exploitation on which he depends? Otherwise it seems rather pointless.
MR BLEBY: I am sorry, your Honour, I am not sure I follow.
BELL J: Given that the requirement is to particularise to the extent that one is able each of the acts on which the case depends, would not that favour a view that the proper exercise of discretion in the event of a conviction would be to make the inquiry, and before that the proper exercise of discretion would be to direct the jury to consider each of the matters about which they have heard evidence with a view to being in a position to answer?
MR BLEBY: Yes. That echoes a submission that was put by my friend this morning. A direction that they should or have to consider every aspect is problematic, with respect, because that is then approaching saying to the jury that they have to self‑sequester, notwithstanding that they have reached a conclusion capable of returning a verdict, that notwithstanding that they have found the accused guilty they nonetheless have to stick it out and make findings in respect of everything, and that is problematic, with respect.
BELL J: We are dealing with an offence which carries a potential maximum of life imprisonment.
MR BLEBY: Yes.
BELL J: The jury has been troubled by hearing the evidence. Is it asking too much to have them consider it?
MR BLEBY: It is not a direction on the law. The law only requires more than one act over the requisite period. To say to the jury you should then go on - you can do what the trial judge did in this case and say there are all sorts of combinations that you might be satisfied of, or indeed you might be satisfied of all of them, but to say that you must go on to consider all of them is not, in my respectful submission, a lawful direction because that is not what is required by the section.
What the appellant puts against us on this is to say that if the prosecution wants a conviction on…..particulars, it should have the jury directed in such a way or, in the alternative, we could get on and just charge with separate offences.
Of course, as I have already submitted, they do not have to be, and the prosecution’s discretion to charge is an unreviewable discretion. But the main point, in my respectful submission, is to say that the prosecution should really be hoisted on its own petard of how it chose to charge and then, short of asking for a direction to the jury, that they must reach a decision on all acts charged is to say we are free to punish the prosecution for charging in this way by requiring a direction that is not required under law.
NETTLE J: You would not need to require a direction, though, would you? The trial judge would just say to the jury, “Look, when you come back, I will ask you which two or more you have found. I tell you that you do not have to find more than two to find the charge proven but I shall ask you if you did.”
MR BLEBY: That does, in my respectful submission, lead to that risk of him prompting more and more questions and at least the risk of creating difficulties for the jury, albeit that pure questions of logic ‑ ‑ ‑
KIEFEL CJ: What kind of questions would they ask?
MR BLEBY: I am sorry, your Honour?
KIEFEL CJ: When that statement is made to the jury, what sort of questions would it prompt from them?
MR BLEBY: For example, if the jury comes back and says, “We are satisfied that the offence of kissing in circumstances of indecency was made out, full stop” – well, I have taken the Court through a number of different pieces of evidence. That is inviting the jury really to provide a narrative on the evidence, which is a very unattractive prospect and it is moving the jury further and further away from its function of deciding the issue joined on the information. It is asking essentially for a running commentary or a narrative of the evidence, of that which they accept and that which they do not. That is a most unattractive prospect.
On that occasion when they were in this classroom and on this occasion when this happened, that, if you like, becomes a rolling and a cascading series of details being asked of the jury because of the nature of the section. Of course it is a matter of, ultimately, happenstance as to which ones the jury might consider first. They might decide to go with the most serious; they might decide to go with the first in time. Yet, as a matter of logic, the accused is then protected for all time from retrial on all of the matters, whether acquitted or not.
One of the submissions my friend made was that the desirability of questions is provoked by what is described in the written submissions as a spectrum of seriousness. This is a theme that looms large in the submissions, of course, that some of these offences are much more serious than others.
Now, if that, as I understand it, is to suggest, for example, that kissing a student open‑mouthed in circumstances of the appellant rubbing his groin against the complainant is so much less serious than the identified incidents in particulars 4, 5 and 6, there is a slight difference in maximum penalties for the reference offences, but that spectrum of seriousness is not nearly as great as submitted in bare terms, in my respectful submission.
So too, of course – I have already submitted this – the submission that it was very much on the cards, the jury may not have found the more serious incidents made out. That submission, of course, is not actually open, in my respectful submission.
Ultimately, there is really very little warrant, in my respectful submission, for going past the observation of Chief Justice Bathurst in the case of ARS v The Queen [2011] NSWCA 266. It is No 2 in the bundle of cases. I just draw the Court’s attention to paragraphs 129 to 131, the comparable offence for New South Wales. I simply draw the Court’s attention to that as one of the more recent statements of principle on this question of when the discretion should be exercised.
So too the appellant cannot, in my respectful submission, rely on the fact of the hung jury in the previous trial. The evidence in the previous trial
was quite different, and specifically the email correspondence between the appellant and the complainant was not tendered.
BELL J: I am sorry, but before you move on to that, Mr Solicitor, the discussion in ARS approves the observations of Justice Underwood, as his Honour then was, in Emery. I think it was in Emery that his Honour contemplated that an unusual offence of this kind might make it appropriate to invoke the equivalent under the Criminal Code (Tas) of the provision governing the taking of special verdicts.
MR BLEBY: Yes. I do not read the CCA’s position in this case as really detracting from that at all. It is just that they determined that it was not appropriate in this case. They accepted ‑ ‑ ‑
BELL J: I think the sentencing judge considered it was not open.
MR BLEBY: Yes. It was an unfortunate exchange, because what was asked for was a special verdict. The sentencing judge said no special verdicts and really the inquiry was shut down. We have really argued this from the Court of Criminal Appeal onwards on the basis of the question of whether questions ‑ ‑ ‑
BELL J: Questions, yes.
MR BLEBY: ‑ ‑ ‑ should have been asked, and the position that I have taken from this is approaching it by reference to whether the CCA erred in saying there is no need to ask questions in this case. That was a discretionary question.
KIEFEL CJ: That might a convenient time.
MR BLEBY: May it please the Court.
KIEFEL CJ: The Court will adjourn until 10.15 tomorrow.
AT 4.16 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 21 JUNE 2017
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