Chiro v The Queen

In *Chiro v The Queen*, the High Court of Australia considered an appeal by the appellant, who had been convicted of persistent sexual exploitation of a child under section 50(1) of the *Criminal Law Consolidation Act 1935* (SA). The charge related to a period between 1 July 2008 and 19 November 2011, during which the appellant, a former high school teacher, allegedly engaged in various acts of sexual exploitation with a student. The prosecution particularised six categories of acts, ranging from kissing to more intimate conduct. The jury returned a general verdict of guilty by a statutory majority, but it was unclear which specific acts of sexual exploitation the jury had unanimously or by majority agreed were proven.

The central legal issue before the High Court was whether, in circumstances where an offence comprises multiple distinct acts of sexual exploitation, a judge should request a special verdict from the jury, or if a general verdict is returned, whether the judge should then question the jury to ascertain the specific acts of sexual exploitation upon which their verdict was based. The appellant argued that the uncertainty regarding the factual basis of the jury's verdict rendered his conviction uncertain and that he should have been sentenced on the most favourable factual scenario for him.

The High Court reasoned that while a judge should not typically request a special verdict for this type of offence, if a jury returns a general verdict of guilty, the judge should, unless it is otherwise apparent, request the jury to identify the specific underlying acts of sexual exploitation that they found to be proved. This is to ensure clarity regarding the factual basis of the conviction. In this case, because the judge had not ascertained which acts the jury agreed were proven, the appellant should have been sentenced on the assumption that the jury had convicted him based on the least serious acts alleged, namely kissing. The sentence imposed, which reflected the assumption that all alleged acts had been proven, was therefore considered manifestly excessive.

Consequently, the High Court allowed the appeal in part. While the appeal against conviction was dismissed, the appeal against sentence was allowed. The order of the Court of Criminal Appeal of South Australia was set aside, and the matter was remitted to that court for the appellant to be resentenced in accordance with the High Court's reasons.