NDT v Tasmania
[2024] TASCCA 7
•19 July 2024
[2024] TASCCA 7
| COURT: | SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL) |
| CITATION: | NDT v Tasmania [2024] TASCCA 7 |
| PARTIES: | NDT |
| v | |
| STATE OF TASMANIA | |
| FILE NO: | CCA 2566/2021 |
| DELIVERED ON: | 19 July 2024 |
| DELIVERED AT: | Launceston |
| HEARING DATE/S: | 28, 30 May 2024 |
| JUDGMENT OF: | Brett J, Jago J, Martin AJ |
| CATCHWORDS: |
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference - Sentence
manifestly excessive or inadequate – Persistent sexual abuse of a child – Crown alleged unlawful
sexual acts on seven occasions - Father indecently assaulted and vaginally, orally and anally raped
young daughter over an approximate three year period – Whether error in factual basis of sentence-
many aggravating factors – Sentence of 12 years' imprisonment with a non-parole period of 6 yearsnot manifestly excessive.
Criminal Code (Tas), s 125A
Aust Dig Criminal Law [3521]
Criminal Law – Appeal and new trial – Particular grounds of appeal – Misdirection and non-direction –
Particular cases – Where appeal dismissed - Statutory removal of extended unanimity – Whether jury misdirected that extended unanimity not necessary – Whether legislative amendment had retrospective application – Statutory construction – Charge of persistent sexual abuse of a child.
Aust Dig Criminal Law [3491]
REPRESENTATION:
Counsel:
Appellant: K Baumeler Respondent: P Sherriff
Solicitors:
Respondent: Director of Public Prosecutions
| Judgment Number: | [2024] TASCCA 7 |
| Number of paragraphs: | 118 |
Serial No 7/2024
File No CCA 2566/2021
NDT v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL BRETT J JAGO J MARTIN AJ 19 JULY 2024 |
| Order of the Court: | |
| Appeal dismissed. |
Serial No 7/2024
File No CCA 2566/2021
NDT v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL BRETT J 19 JULY 2024 |
1 I agree with Martin AJ that this appeal should be dismissed for the reasons given his Honour.
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File No CCA 2566/2021
NDT v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL |
JAGO J
19 JULY 2024
2 I agree with Martin AJ, and for the reasons he expresses, I would dismiss the appeal in respect of both conviction and sentence.
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File No CCA 2566/2021
NDT v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL |
MARTIN AJ
19 JULY 2024
Introduction
3 The appellant was convicted by a jury of Persistent Sexual Abuse of a Child contrary to s 125A(2) of the Criminal Code. The Indictment charged that between on or about 1 January 2010, and on or about 30 June 2017, the appellant maintained a sexual relationship with a young person, namely his daughter who was born in early 2006, and to whom he was not married. Pearce J imposed a sentence of imprisonment for 12 years, with a non-parole period of 6 years.
4 Initially the appellant appealed against the conviction on the sole ground that "it was not open to the jury upon the whole of the evidence to find the Applicant guilty". The appellant also appealed against the sentence on the single basis that it was "manifestly excessive in all the circumstances."
5 The Notice of Appeal was filed on 19 October 2021. Subsequently the Court was informally advised that the appellant would not be proceeding with his appeal against conviction.
6 At the first hearing of the appeal on 28 May 2024, the Court advised the parties of an issue in respect of which the Court sought the assistance of the parties. The issue concerned commencement of the operation of s 125A(4)(c) and s 125A(6B) of the Criminal Code, pursuant to which provisions the learned trial judge directed the jury and sentenced the appellant. These provisions were introduced into s 125A by an amendment to the Criminal Code which came into effect on 10 December 2018.[1] The question under consideration was whether the provisions which came into operation in December 2018 applied to the trial of the appellant in respect of offending alleged to have occurred between 1 January 2010 and 30 June 2017.
[1] Family Violence Reforms Act 20187 Following an adjournment, the appellant was given leave to pursue the appeal against conviction on the ground that the directions given by the learned trial judge were erroneous because they applied the provisions of s 125A as amended in 2018.
8 In addition, with respect to sentence, the appellant submitted that the trial judge erred in applying s 125A(6B) which also came into operation in December 2018. In conjunction with that submission, the appellant contended that the trial judge erred in not sentencing the appellant on a factual basis most favourable to him.
9 For the reasons that follow, I would dismiss the appeal in respect of both conviction and
sentence.
Appeal against conviction
10 In the Indictment, the Statement of the Crime was, initially, Maintaining a Sexual Relationship with a Young Person under the age of 17 years, contrary to s 125A(2) of the Criminal Code. At a pre- recording of evidence on 3 August 2020, the Statement of the Crime, Maintaining a Sexual Relationship
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with a Young Person under the age of 17 years, was deleted and replaced by Persistent Sexual Abuse of a Child. The need for the change was caused by a 2020 amendment to s 125A which is discussed later in these reasons.
11 Bearing in mind the period charged of 1 January 2010 to 30 June 2017, it is necessary to examine the legislation which introduced s 125A to the Criminal Code, and subsequent amendments.
12 Section 125A was introduced into the Criminal Code by the Criminal Code Amendment (Sexual Offences) Act 1994, which commenced operation on 25 November 1994. In its original form, s 125A created the offence of "Maintaining a Sexual Relationship with a Young Person" in the following terms:
"125A - Maintaining sexual relationship with young person
(1) In this section, 'unlawful sexual act' means an act that constitutes an
offence under section 122, 123, 124, 126, 127, 127A, 133 or 185.(2) A person who maintains a sexual relationship with a young person who is under the age of 17 years, and to whom he or she is not married, is guilty of a crime. Charge: Maintaining a sexual relationship with a young person under the age of 17 years. (3) An accused person is guilty of having committed an offence under subsection (2) if, during a particular period when the young person was under the age of 17 years- (a) the accused committed an unlawful sexual act in relation to the young
person on at least 3 occasions; and(b) the young person was not married to the accused. (4) For the purposes of subsection (3)- (a) it is not necessary to prove the dates on which any of the unlawful sexual acts were committed or the exact circumstances in which any of the unlawful sexual acts were committed; and (b) the unlawful sexual act that was committed on anyone of the occasions need not have been the same as the unlawful sexual act that was committed on each or any of the other occasions. (5) It is a defence to a charge under subsection (2) to prove that the accused person believed on reasonable grounds that the young person was of or above the age of 17 years. (6) An Indictment charging a person with having committed an offence
under subsection (2)-(a) is to specify the particular period during which it is alleged that the sexual relationship between the accused and the young person was maintained; and (b) is not to contain a separate charge that the accused committed an
unlawful sexual act in relation to the young person during that period.(7) A prosecution for an offence under this section is not to be commenced
without the written authority of the Director of Public Prosecutions."
13 The 1994 amendment also introduced s 337B of the Code which stated that, provided a trial judge was satisfied on the evidence adduced at trial that the accused person was capable of being tried
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on Indictment for specified crimes, upon an Indictment for maintaining a sexual relationship with a young person under the age of 17 years, the accused could be convicted on one or more of a number of substantive sexual offences.
14 In 1997 s 125A(1) was amended by deleting reference to ss 122 and 123 of the Code. That amendment is not relevant for present purposes.
15 Section 125A(1) was amended by the Criminal Code Amendment Act 2001 which came into operation on 17 December 2001. Added to the end of s 125A(1) were the words "whether committed before, on or after the commencement of this section". The effect of the amendment was to ensure that on a charge under s 125A, the unlawful sexual acts required to establish the offence of maintaining the sexual relationship could be sexual acts which occurred before s 125A commenced operation in 1994. In the second reading speech, the Minister for Justice and Industrial Relations explained the intention to remove ambiguity as to whether any of the three occasions relied upon as an unlawful sexual act could be occasions which occurred prior to the 1994 amendment. The Minister said:
"Currently it is unclear whether any of the three occasions can relate to a period before the Code was amended to include this crime, that is prior to 1994. The proposed amendment seeks to ensure its retrospective effect. This will enable the Crown to charge a person under s 125A for a continuous course of conduct that occurred both before and after the commencement of that section.
Whilst normally retrospectivity in criminal law is seen as abhorrent, in this case, any acts which occurred prior to 1994 would in themselves constitute an offence without the proposed amendment. The effect of the retrospectivity is therefore not to criminalise behaviour which at the time it occurred was not criminal, but to allow criminal conduct which predated 1994 to be considered as part of a pattern of conduct which amounts to an offence of maintaining a sexual relationship with a child."
16 Significant amendments were made to s 125A by the Family Violence Reforms Act 2018 which commenced operation on 10 December 2018. As is apparent, those amendments commenced operation after the period charged against the appellant in the Indictment. At the time the appellant was alleged to have committed the unlawful sexual acts said to amount to maintaining a sexual relationship with the child, s 125A was in its original 1994 form with the addition of the amendment in 2001 providing retrospectivity beyond 1994 in respect of the dates on which the unlawful sexual acts occurred.
17 The Family Violence Reforms Act inserted into s 125A(4) an additional sub-paragraph:
"(c) on a trial before a jury for an offence against subsection (2), it is not necessary for each member of the jury to be satisfied that the unlawful sexual acts were committed on the same three occasions".
18 The 2018 amendment also introduced subsection (6B) to s 125A:
"(6B) A Court sentencing a person for an offence against subsection (2) is to make findings in relation to either the nature or the character, or both the nature and the character, of the sexual relationship maintained and, in doing so, the Court is not required to ask any questions of the jury for the purposes of making those findings."
19 The amendments introduced through the Family Violence Reforms Act were significant. Prior to the amendment, before convicting, it was necessary for a jury to be agreed as to which three unlawful sexual acts were committed by the accused ("extended unanimity"). Following the amendment, through s 125A(4)(c), it was no longer necessary for each member of the jury to be agreed as to which three
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unlawful sexual acts were committed by the offender (provided individual members were satisfied at least three acts were committed). In other words, following the introduction of s 125A(4)(c), different jurors could rely on proof of different acts to arrive at a collective jury verdict that at least three acts were proven.
20 In addition, subs (6B) altered the landscape with respect to factual findings for the purpose of sentencing. This issue is discussed later in these reasons. I will also deal later with the second reading speech.
21 In 2020 the titles of numerous sexual offences were amended by the Criminal Code Amendment (Sexual Abuse Terminology) Act 2020 which came into operation on 6 April 2020. Chapter XIV of Part IV of the Code was previously headed "Crimes against morality". That title was changed to "Sexual crimes". Section 125A previously specified in subs (2) that the charge was "Maintaining a sexual relationship with a young person under the age of 17 years". The description of the charge was changed in 2020 to "Persistent sexual abuse of a child [or young person]". Notwithstanding a title change, s 125A(2) continued to state that a person "who maintains a sexual relationship with a young person …" is guilty of a crime.
22 In the second reading speech, the Attorney-General explained that Parliament was responding to significant concerns in the community about terminology used in describing the crime under consideration. She referred to the new terminology as "more accurately" describing the true nature of the conduct with which s 125A is concerned.
23 It should be noted that the 2020 amendment Act specifically stated that "for the avoidance of doubt", the amendments applied "in relation to an offence, whether or not the offence was committed before, on or after the commencement day". The amendment also specifically stated it was not "intended to affect or amend, the elements of a relevant crime as they exist on the commencement day".
24 Prior to the 2018 amendment, s 125A did not explicitly state that extended unanimity as to the three unlawful sexual acts was a requirement for proof of the offence. However, the necessity for extended unanimity became clear from the decision of the High Court in KBT v R [1997] HCA 54, 191 CLR 417. The court was concerned with s 229B of the Queensland Criminal Code which created the offence of maintaining a sexual relationship with a child. Subsection (1) provided:
"Any adult who maintains an unlawful relationship of a sexual nature with a child under
the age of 16 years is guilty of a crime and liable to imprisonment for 7 years".
25 Subsection (1A) provided:
"A person shall not be convicted of the offence to find in subsection (1) unless it is shown that the offender, as an adult, has, during the period in which it is alleged that the offender maintained the relationship in issue with the child, done an act defined to constitute an offence of a sexual nature in relation to the child, … on three or more occasions and evidence of the doing of any such act shall be admissible and probative of the maintenance of the relationship notwithstanding that the evidence does not disclose the dates or the exact circumstances of those occasions."
26 The majority judgment of Brennan CJ, Toohey, Gaudron and Gummow JJ explained why extended unanimity with respect to the three unlawful sexual acts was required (422):
"The offence created by s 229B(1) is described in that sub-section in terms of a course of conduct and, to that extent, may be compared with offences like trafficking in drugs or keeping a disorderly house. In the case of each of those latter offences, the actus reus is the course of conduct which the offence describes. However, an examination of sub-
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s (1A) makes it plain that that is not the case with the offence created by s 229B(1). Rather, it is clear from the terms of sub-s (1A) that the actus reus of that offence is the doing, as an adult, of an act which constitutes an offence of a sexual nature in relation to the child concerned on three or more occasions. Once it is appreciated that the actus reus of the offence is as specified in sub-s (1A) rather than maintaining an unlawful sexual relationship, it follows, as was held by the Court of Appeal, that a person cannot be convicted under s 229B(1) unless the jury is agreed as to the commission of the same three or more illegal acts.
27 In the context of the requirement for extended unanimity, the majority noted that subs (1A) dispensed with the requirement of proof as to "the dates or the exact circumstances of [the] occasions" on which the acts were committed. The majority pointed out, however, that such dispensation applied only to dates and circumstances, and did not detract "from the need to prove the actual commission of acts which constitute offences of a sexual nature".
28 Prior to the 2018 amendments, in respect of the substance of the offence, s 125A was in terms similar to those of the Queensland provision considered in KBT. Hence proof of the commission of an offence against s 125A required proof of three unlawful sexual acts in respect of which the jury was required to be in agreement as to which three sexual acts had been proven. Extended unanimity applied to an offence under s 125A prior to the 2018 amendments.
29 In respect of sentencing for an offence against s 125A, the effect of the requirement for extended unanimity came before the High Court in Chiro v The Queen [2017] HCA 37, 260 CLR 425. The appellant had been charged under South Australian legislation with persistent sexual exploitation of a child under a prescribed age. The offence was made out by proof that, over a period of not less than three days, an adult person committed more than one act of sexual exploitation of a child. In Chiro, the prosecution relied upon a number of sexual acts ranging from kissing to more serious offending involving penetration of the child's vagina. The directions to the jury included a direction that the offence would be made out if the jury was satisfied that, at the least, the appellant had kissed the complainant on more than one occasion in circumstances of indecency, but the jury was required to be agreed as to which acts were proven.
30 The verdict of guilty did not identify which acts the jury were agreed had been committed by the appellant. In these circumstances, the court in Chiro noted that although it could be assumed that the jury were agreed as to the commission of the same two or more acts, there was no way of knowing which acts they had agreed upon. The court observed that the actus reus of the offence was "comprised of discrete underlying acts of sexual exploitation", and an accused was not to be convicted or sentenced "on any basis other than having committed only those acts of sexual exploitation which the jury are agreed have been proved" [51].
31 The court accepted that since the decision of the High Court in Cheung v The Queen (2001) 209 CLR 1, the High Court has tended the view that "generally speaking", a judge is not required to sentence on a view of the facts most favourable to an offender, "but should make his or her own findings as to the aggravating and mitigating circumstance of the offence of which the offender has been convicted". However, the court determined that the position was different where extended unanimity was required with respect to the actus reus of the crime [52]:
"Where an accused stands trial before a jury for an offence of a continuing nature, such as, for example, trafficking a prohibited drug over a period of time, the jury need not be unanimous (or agreed by statutory majority) as to each of the particular acts which are alleged to have comprised the actus reus of the offence. But, as already stated, in the case of an offence under s 50(1) of the CLCA the underlying acts of sexual exploitation are the actus reus of the offence and it is for the jury to find the acts which comprise the actus reus. Otherwise, it would not be a trial by jury. Of course, as has
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been observed, a jury cannot be compelled to explain the basis of its verdict. Consequently, where a jury returns a verdict of guilty of a charge of persistent sexual exploitation of a child contrary to s 50(1) and the judge does not or cannot get the jury then to identify which of the alleged acts of sexual exploitation the jury found to be proved, the offender will have to be sentenced on the basis most favourable to the offender." (Footnotes omitted.)
32 It should be noted that the court in Chiro was of the view that although the trial judge was correct in not directing the jury to bring in a special verdict, the judge "should have exercised her discretion to ask the jury to specify which of the particularised acts of sexual exploitation they were agreed had been proved".
33 Following KBT and Chiro, not only was extended unanimity required where the commission of unlawful sexual acts was the actus reus of the offence, judges had been told by the High Court that following a general verdict, they should ask the jury to specify which sexual acts the jury were agreed had been proved. In the absence of relevant answers from the jury, the judge would be required to sentence on the basis of facts most favourable to an offender.
A number of jurisdictions in Australia reacted to this situation with legislative amendments of the type enacted in Tasmania through the 2018 amendments. As the charge against the appellant was based upon sexual acts committed between 1 January 2010 and 30 June 2017, prior to the 2018 amendments, the issue to be considered was whether the law as amended applied in the appellant's trial, or whether the jury should have been directed in accordance with the law as it existed prior to the 2018 amendments.
Retrospectivity – principles
35 The principles engaged by a change in the law between the commission of offences and a trial were recently discussed by the High Court in Stephens v The Queen [2022] HCA 31, 273 CLR 635. It is convenient first, however, to discuss an earlier decision of the High Court in Rodway v The Queen (1990) HCA 19, 169 CLR 515.
36 In Rodway, the court was concerned with a change in Tasmanian legislation concerning corroboration. On 12 November 1987 the appellant was charged with offences alleged to have been committed between 1982 and 1986. In that period the Tasmanian Criminal Code provided that a person charged with such offences could not be convicted unless the evidence of the complainant was corroborated "in some material particular by other evidence implicating the accused". That requirement for corroboration was repealed on 26 November 1987, 14 days after the appellant had been charged. The appellant was committed for trial in 1988 and, at his trial in 1989, the trial judge held that the new provision applied that no rule of law or practice required the judge to give a warning to the effect that it was unsafe to convict on the uncorroborated evidence of the complainant. That decision was upheld by the Court of Criminal Appeal and by the High Court.
37 In a joint judgment, the High Court described the common law rule [4] (518):
"[4]
The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation. It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of
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such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events. A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance. But the difference between substantive law and procedure is often difficult to draw and statutes which are commonly classified as procedural - statutes of limitation, for example - may operate in such a way as to affect existing rights or obligations. When they operate in that way they are not merely procedural and they fall within the presumption against retrospective operation. But when they deal only with procedure they are apt to be regarded as an exception to the rule and, if their application is related to or based upon past events, they are said to be given a retrospective operation provided that they do not affect existing rights or obligations."
38 After discussing the example of limitation periods being abridged or extended as not "merely procedural", the court recognised the limitation of the "simple classification of a statute as either procedural or substantive" (519-520):
"It was recognition of the fact that the simple classification of a statute as either procedural or substantive does not necessarily determine whether it may have a retrospective operation which no doubt led Dixon CJ in Maxwell v Murphy to formulate the general rule in terms which did not rest simply upon that classification. At p 267 he said:
'The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed. The basis of the distinction was stated by Mellish L.J. in Republic of Costa Rica v. Erlanger ((1876) 3 ChD 62). 'No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided, of course, that no injustice is done'." (Footnotes omitted.)
39 The court then discussed the decision in Newell v The King [1936] HCA 50, 55 CLR 707 in which it was held that an amendment to the Tasmanian Jury Act 1899 allowing for majority verdicts could not apply to a trial which commenced with arraignment before the amendment commenced operation. After referring to the individual approaches of Latham CJ, Dixon J and Evatt J, the judgment continued (520-521):
"However, all members of the Court expressed themselves to be in agreement and, notwithstanding the manner in which Latham CJ and Evatt J expressed themselves, what appears to have been important was that upon the commencement of his trial the accused had joined issue with the Crown and had placed himself in jeopardy of conviction upon the unanimous verdict of twelve men, not a majority of ten. It was in those narrow circumstances inappropriate to give the Jury Act a retrospective operation by applying it to a trial already begun.
But ordinarily an amendment to the practice or procedure of a court, including the admissibility of evidence and the effect to be given to evidence, will not operate retrospectively so as to impair any existing right. It may govern the way in which the right is to be enforced or vindicated, but that does not bring it within the presumption
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against retrospectivity. A person who commits a crime does not have a right to be tried in any particular way; merely a right to be tried according to the practice and procedure prevailing at the time of trial. The principle is sometimes succinctly, if somewhat sweepingly, expressed by saying, as did Mellish LJ in the passage cited by Dixon CJ in Maxwell v Murphy, that no one has a vested right in any form of procedure. It is a principle which has been well established for many years: see also Wright v. Hale [1860] EngR 1191; (1860) 6 H & N 227 (158 ER 94), per Wilde B at p 233 (p 96 of ER); Attorney-General v Sillem [1864] EngR 352; (1864) 10 HLC 704 (11 ER 1200), per Lord Wensleydale at p 763 (p 1224 of ER); Warner v Murdoch (1877) 4 ChD 750, per James LJ at p 752."
40 The court then dealt with the South Australian decision in Attorney-General's Reference No 1 of 1988 (1988) 49 SASR 1 in which the Full Court was concerned with the operation of legislation that, at the time of offending, prohibited conviction of an accused on the uncorroborated evidence of a child under the age of 10 years where the accused denied the charge on oath. The prohibition was abolished by legislation prior to the trial, and the trial judge ruled that the amendment did not apply to the trial of the accused. That view was upheld in the Full Court. In Rodway, the court cited the following passage from the reasons of King CJ:
"There is a sense in which laws relating to the competence of witnesses and the quantum of evidence required to prove guilt can be said to deal with matters of procedure. Where such laws, however, provide substantial protections against wrongful conviction, they are treated by the law as conferring substantive rights upon citizens and as going beyond the realm of mere procedure. Prior to the commencement of this amending Act there existed an immunity from conviction, assuming the charge to be denied on oath, on the uncorroborated evidence of a child under ten years or upon the unsworn evidence of a child then not authorised to give such evidence. In a sense that was a right enjoyed by the defendant in common with all citizens not to be placed in jeopardy of conviction on such evidence. The defendant, in common with other citizens, has been deprived of that right by the amending Act."
41 King CJ regarded the pre-existing law with respect to the requirement for corroboration as providing an accused with "an immunity from conviction" which established a "right enjoyed" by an accused and a right which had been removed by the amending legislation. In holding that Attorney- General's Reference No 1 of 1988 was wrongly decided, the court in Rodway made the following observations of general application:
"Some procedures at a trial provide fundamental protection against wrongful conviction, but, in conformity with the passage already quoted from the judgment of Dixon CJ in Maxwell v Murphy, this ordinarily provides no basis for regarding them as having a retrospective operation simply because the trial concerns events and transactions past and closed. The fact that such procedures are important does not alter the way in which they operate and, if they operate so as to affect no existing rights or obligations but merely the way in which those rights or obligations are to be contested in court, then they do not fall within the presumption against retrospectivity. Fundamental rights, irrespective of whether they should be classified as procedural or substantive, will almost invariably be reflected in the common law and the protection against statutory interference with them, whether prospective or retrospective, lies in another presumption. That is the presumption that the legislature does not intend to affect basic common law doctrines unless it expresses its intention in the clearest of terms: Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277, at p 304; Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52, at pp 96-97, 104, 116, 123; Sorby v The Commonwealth [1983] HCA 10; (1983) 152 CLR 281, at pp 289-290; Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486, at p 495."
42 The judgment in Rodway continued with the further observation that regardless of whether the requirement for corroboration could be described as "basic or fundamental", it was clear that the amendments with respect to corroboration were "intended to alter the existing law". Referring to the
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amendments removing the requirement for corroboration in both Rodway and Attorney-General's
Reference No 1 of 1988, the court said (523):"Both amendments were procedural in character. They did not operate to affect existing rights or obligations. Rather, they operated to affect the way in which rights fell to be determined at trial and, for that reason, they did not fall within the presumption against retrospective operation.
43 The Court in Rodway also dealt with the operation of s 16 of the Tasmanian Acts Interpretation
Act 1931 (523):
"Nor, in our view, does s 16(1) of the Acts Interpretation Act support the applicant's case. Paragraph (c) of that sub-section applies only to preserve acquired or accrued rights and, as we have endeavoured to explain, the applicant had acquired no right to a particular mode of procedure at his trial, at all events before his trial had commenced. A right to a particular procedure is acquired only when the occasion for the application of that procedure arises. Indeed, the difficulty experienced by counsel for the applicant in identifying an earlier time at which such a right might be acquired points to the inevitability of that proposition. If a right to a particular form of trial arises before trial, there is no logical reason for not saying that it is acquired upon the commission of the offence to be tried or even at the time of committal, and yet to say it is acquired at any earlier time means that it must be a right vested in all."
44 The decision in Rodway was discussed in the majority judgment of Keane, Gordon, Edelman and Gleeson JJ in Stephens. Although the majority expressed concern that the distinction between substantive and procedural provisions tended to detract from consideration of the underlying principle, there was no suggestion of dissent from the approach or decision of the court in Rodway.
45 In Stephens, following arraignment and the commencement of a trial relating to sexual abuse of a child, s 80AF of the Crimes Act 1900 (NSW) came into force. It had the effect of enlarging the period during which another provision was in operation, thereby "displacing the significant body of authority the effect of which was, in the circumstances of this case, that the Crown was required, on each count under s 81 or s 78K, to prove beyond reasonable doubt that the alleged conduct was committed at a time when the relevant section was in force" [20]. The majority judgment described the change as removing "the possibility of a path to acquittal based upon uncertainty concerning the period of the offending" [22]. In upholding the appeal against the decision of the Court of Criminal Appeal which held that s 80AF applied "retroactively including to trials that had already commenced", the majority judgment discussed the relevant principles and the difficulties associated with some of the terms and concepts used in previous decisions [29]-[32]:
"There is considerable confusion surrounding the nomenclature of retrospective and retroactive legislative provisions. On one view, they are separate concepts. A retrospective provision 'operates for the future only' albeit that it looks backwards and 'imposes new results in respect of a past event'. Thus, for the future only, it 'changes the law from what it otherwise would be with respect to a prior event'. By contrast, a retroactive provision operates backwards and has been described as one that 'changes the law from what it was'. On another view, there is only one category. All these laws can loosely be described as retrospective, although retroactive laws are the only 'true' retrospective laws. Laws that operate for the future only, but impose new results in respect of past events, have been said to be retrospective in an 'extended' sense, although that sense has sometimes been described as 'misleading'. These debates are not concerned with matters of principle. The distinctions between retrospective and retroactive laws are 'terminological, not conceptual'. However described, both are capable of defeating reasonable expectations concerning existing rights, although retroactive laws will generally be more pronounced in this effect. These distinctions should not distract from the underlying principle described below, concerning how to interpret the temporal operation of legislation.
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Another distinction is sometimes drawn between substantive and procedural provisions. In Rodway, this Court referred to the presumption 'that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction'. This Court explained that 'there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure' as such statutes 'invariably operate prospectively'.
This Court in Rodway recognised, however, that there was an ambiguity in the categorisation of some laws as procedural, saying that "the difference between substantive law and procedure is often difficult to draw and statutes which are commonly classified as procedural ... may operate in such a way as to affect existing rights or obligations" and, as such, would not be "merely" procedural. But even this distinction, which requires a difference between procedural laws and 'merely procedural' laws, is not a stable basis for deciding whether to apply a presumption against retroactivity. The point of principle underlying the distinction is that laws which might be said to be procedural can have such a significant effect in disturbing settled expectations that the presumption will apply, denying an otherwise clear retroactive effect in relation to an extant trial. An example is the law considered by this Court in Newell v The King that amended the procedure of conviction by a unanimous jury to permit conviction by a majority of ten jurors. The principle 'that a statute is not presumed to be retrospective' was applied because the law was 'not a mere matter of procedure'. The words of the legislation that said 'on the trial of any criminal issue' were interpreted to mean 'on the trial of any criminal issue joined after the commencement of the Act'.
The importance of not permitting an artificial distinction between substance and procedure to control the underlying principle was further emphasised in Maxwell v Murphy by Dixon CJ, who said that 'difficulties have always attended its application', and by Fullagar J, who described the distinction as one that 'does not represent a logical dichotomy'. In another context, it has been said of the distinction that 'search as one may, it is very hard, if not impossible, to identify some unifying principle which would assist in making the distinction in a particular case'. Like the distinction between retrospective laws and retroactive laws, the distinction between substance and procedure can also distract from the underlying principle." (Footnotes omitted.)
46 Immediately following that discussion, the majority identified the underlying principle to be
applied [33]-[34]:
"Shorn of difficult-to-draw distinctions and difficult-to-apply nomenclature, the underlying principle concerning how to interpret the temporal operation of legislation is based on reasonable expectations. As H L A Hart explained, 'the reason for regarding retrospective law-making as unjust is that it disappoints the justified expectations of those who, in acting, have relied on the assumption that the legal consequences of their acts will be determined by the known state of the law established at the time of their acts'. The reasonable expectations of the public give rise to a presumption against interpreting the enactments of Parliament in a manner 'that would conflict with recognized principles that Parliament would be prima facie expected to respect' In this context, what is a 'reasonable expectation' will necessarily be informed by fundamental principles of criminal law, the accusatorial process, and the law in force at the relevant time.
The force of this presumption may depend upon the circumstances: '[t]he inhibition of the rule is a matter of degree, and must vary secundum materiam [according to the circumstances]'. The more fundamental the rights, and the greater the extent to which they would be infringed by a retrospective or retroactive law, the less likely it is that such an intention will be ascribed to Parliament. Conversely, the less a provision would defeat reasonable expectations, and the less injustice it would cause, the less force there will be in the presumption against retrospective operation. Thus, the force of the presumption is reduced where the 'wrongful nature of the conduct ought to have been
13 No 7/2024
apparent to those who engaged in it'. And the presumption will often have little or no force in relation to future trials where the law affects rights and interests only slightly and indirectly, such as by the common iterative process of adjusting legal rules of evidence or procedure in the conduct of trials." (Footnotes omitted.)
Discussion
47 In considering the application of the principles to the legislation in question, the term "extended unanimity" should not be confused with unanimous, as opposed to, majority verdicts. Historically, the common law regarded the requirement for unanimous verdicts as an "essential feature of the institution of trial by jury".[2] However, a number of State jurisdictions have modified that "essential feature" by allowing for majority verdicts. In Tasmania that modification occurred in 1936 to allow for majority verdicts after two hours' deliberation in all trials except on a capital charge. At all relevant times for present purposes, s 43 of the Juries Act 2003 was in the following terms:
[2] See the discussion in Cheatle v The Queen (1993) 177 CLR 541."43 Failure to reach unanimous verdict in criminal trials
(1) If, after deliberating for at least 2 hours, a jury in a criminal trial, other than one relating to treason or murder, has not reached a unanimous verdict, the court is to take a majority verdict as the verdict of the jury. (2) If, after deliberating for at least 6 hours, a jury in a criminal trial relating to treason or murder has not reached a unanimous verdict, the court is to take a majority verdict of not guilty as the verdict of the jury. (3) A verdict that the accused is guilty of murder or treason is to be unanimous. (4) If in a criminal trial, after deliberating for the period referred to in subsection (1) or (2) as appropriate, a jury has not reached a unanimous verdict and there is no majority verdict, the court may discharge the jury unless the court considers further deliberation is desirable. (5) In a criminal trial, a majority verdict on an alternative crime may be taken as
the verdict of the jury if –
(a) it is possible for the jury to return a verdict of not guilty of the crime charged but guilty of another crime with which the accused has not been charged; and (b) the jury reaches a verdict, unanimously or by majority verdict, that the accused is not guilty of the crime charged; and (c) the jury is unable to agree on its verdict on the alternative crime after a cumulative total of at least – (i) 2 hours deliberation on both crimes in the case of a criminal trial referred to in subsection (1) ; or
(ii) 6 hours deliberation on both crimes in the case of a crime referred to in subsection (2) ."
48 At the time KBT was decided, majority verdicts were not permitted in Queensland. Although majority verdicts have been permissible in South Australia since 1927, in Chiro there was no occasion to consider the relevance or otherwise of the availability of majority verdicts. In Tasmania, therefore, a reference to "extended unanimity" concerning three unlawful sexual acts is a reference to the collective jury agreement as to which acts are proven, but it is not a reference to all members of the jury being
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agreed as to the same three acts. Collective jury agreement as to the same three acts could, after two
hours of deliberation, be the agreement of ten or more jurors.49 The term "extended unanimity" should be understood in this context.
50 The unlawful sexual acts relied upon to establish the crime occurred between 2010 and 2017. The appellant was charged on complaint dated 6 November 2018. The 2018 amendment commenced operation on 10 December 2018. The appellant first pleaded not guilty in the Burnie Magistrates Court on 5 February 2019 and was committed for trial in the Burnie Supreme Court. The matter returned to the Magistrates Court for preliminary proceedings, after which an Indictment was filed in the Supreme Court on 6 February 2020. The Indictment was amended on 3 August 2020 to change the Statement of Crime to: Persistent Sexual Abuse of a Child – contrary to s 125A(2) of the Criminal Code.
51 On the same day as the statement on the Indictment was amended, the evidence of the complainant was pre-recorded. A plea was not entered at that time. The plea of not guilty was first entered on 13 September 2021 and the trial before the jury commenced. In a memorandum to the jury and oral summing up the learned trial judge informed the jury that the Crown was required to prove that the accused committed an unlawful sexual act against the complainant on at least three occasions during the period covered by the Indictment, but it was not necessary for each member of the jury to be satisfied that the unlawful sexual acts were committed on the same three occasions. In other words, the trial judge did not direct that extended unanimity was required and applied the law as it existed after the 2018 amendments. No objection was raised to the direction.
52 At the time of the 2018 amendments, Parliament had already determined in 2001 that reference to an unlawful sexual act in s 125A meant an act constituting an offence under nominated provisions "whether committed before, on or after the commencement" of s 125A. Parliament signalled the clear intention that s 125A was to apply to historic sexual offending committed before s 125A came into operation in 1994. This was the context in which the 2018 amendments were enacted.
53 In the 2018 second reading speech, the Minister for Justice referred to the "recent criminal justice report of the Royal Commission into Institutional Responses to Child Sexual Abuse" [the Royal Commission] and the issue of the existing requirement for extended jury unanimity, that is, the requirement that the jury identify and agree on the same occasions of sexual abuse. The Minister noted the recommendation of the Royal Commission that each State and Territory should "introduce legislation to amend its persistent child sexual abuse offence so that each member of the jury must be satisfied that the unlawful sexual relationship existed but each member of the jury need not be satisfied of the same unlawful sexual acts". The Minister then explained that the introduction of s 125A(4)(c) implemented the recommendation of the Royal Commission in this regard.
54 As discussed, the 2018 amendment also introduced s 125A(6B) with respect to the sentencing process in circumstances where the jury would no longer have to agree as to which unlawful sexual acts had been proven. The Minister explained:
"Proposed section 125A(6B) proposes that when sentencing the accused for the offence against s 125A, a judge inquire of the jury which unlawful sexual acts the finding of guilty was based upon. The sentencing judge is to make her or his own findings as to the nature and/or character of the unlawful sexual relationship on the evidence heard at trial and sentence the accused accordingly. This clarifies that the judge is to sentence on the basis that the identified occasions were not isolated acts but rather ones that took place during the course of the relationship."
55 Although the package of 2018 amendments removed extended unanimity and passed responsibility for fact finding concerning the nature and character of the relationship to the sentencing
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judge, the 2018 amendment removing the requirement of extended unanimity did not alter the actus reus of the crime. The actus reus remained the existence of at least three unlawful sexual acts within the specified period. To put it another way, the basis of the appellant's liability for his conduct was not altered. Following the 2018 amendments, it remained necessary for the jury (unanimously or by majority) to agree that at least three acts had been proven.
56 Applying the principle explained in Stephens, in my view the amendment removing extended unanimity did not "disappoint the justified expectations" of the appellant, as that expression is properly understood. Unlike the situation in Newell, when his trial commenced the appellant could not reasonably have held an expectation that the jury would be required to agree as to which three acts had been proven.
57 Similarly, it cannot reasonably be said that, in any relevant sense, the appellant "relied on the assumption that the legal consequences" of his acts would be determined on the basis of extended unanimity. The 2018 amendments did not disturb a "settled expectation".
58 In addition, there exists a practical consideration which supports retrospective operation. This issue was raised by Brett J during oral submissions.
59 Frequently, the crime under consideration is committed over an extended period by reason of unlawful sexual acts committed repeatedly, often over a number of years. If such acts were committed both before and after the 2018 amendments came into operation, and the amendments do not apply to those acts committed before such operation, potentially two trials would be required with different requirements as to extended unanimity. Such a result is undesirable and tends to defeat the underlying purpose of the legislation.
60 Counsel for the appellant relied heavily on the proposition that the 2018 amendments removed a "pathway to acquittal". I do not agree. Such a classification echoes the view expressed by King CJ in Attorney-Generals Reference No 1 of 1988 when his Honour spoke of the requirement for corroboration creating an "immunity from conviction", a view which was rejected by the High Court in Rodway. Like the removal of the requirement for corroboration, the removal of the requirement for extended unanimity "did not operate to affect existing rights or obligations." It "operated to affect the way in which rights fell to be determined at trial" and "did not fall within the presumption against retrospective operation."[3]
[3] Rodway at 523.61 For these reasons, in my view the presumption against retrospective operation does not apply. Rodway is directly applicable.
62 Further, the history and context of the legislation strongly support the view that Parliament intended the amendment to apply to offending which occurred before the 2018 amendments came into effect. Such a legislative approach is apparent in the 2001 amendment which demonstrated an intention to encompass historical sexual offending within the operation of s 125A.
63 The Royal Commission exposed historical sexual offending that was prevalent across all jurisdictions in Australia. It also exposed many issues perceived as impediments to successful prosecution of such crimes. In addition, specific issues seen as problems were identified as a consequence of the High Court decisions in KBT and Chiro. In numerous ways, Parliaments across the country responded to the various issues and the Royal Commission recommendations.
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64 Included in the perceived difficulties was the requirement for extended unanimity, which the Royal Commission recommended be removed. Parliament responded with the 2018 amendments.
65 Given the context to which I have referred, in my view Parliament did not intend to leave in place the perceived difficulties for trials involving unlawful sexual acts committed before the 2018 amendments came into operation. Parliament intended that the package of 2018 amendments to s 125A apply to all future trials of an offence against s 125A, including trials involving unlawful sexual acts committed before the 2018 amendments came into operation.
66 For these reasons, in my opinion the trial judge was correct in directing, in accordance with s 125a(4)(c), that extended unanimity was not required.
Appeal against sentence - facts
67 The victim was the appellant's daughter. She was born in early 2006 as a consequence of a brief relationship between the appellant and the victim's mother. It was not until the victim was aged nearly two years that the appellant became aware of the victim's existence or that she was his child.
68 At the time the appellant became aware of the victim, he was in another relationship which continued until 2016. The appellant had regular weekend contact with the victim which occurred in the home he shared with his partner and three surviving children of that relationship. When the victim was aged about six or seven, her mother died. As a consequence, from 2013 the victim lived on alternate weeks either with the appellant, and his family, or with a man who acted as her maternal grandfather.
69 The appellant's relationship with his partner ended in 2016, but the victim continued to live with the appellant at his new home. On 27 October 2017, when the victim was aged 11 years, the victim made her first disclosure of the appellant's sexual abuse. She approached a police officer who had given a presentation at her school about matters of sexual abuse and was referred to a social worker. The victim told the social worker the appellant had been touching her private parts since she was aged five or six, but the touching had stopped the previous year before Christmas when the appellant moved house.
70 The victim was interviewed on 30 October 2017 and 15 November 2018. Her evidence was taken at a special hearing on 4 August 2020. The trial judge found the victim to be a "truthful witness" and, in his sentencing remarks, said "I consider her evidence to have been compelling". After considering the victim's evidence, and competing submissions arising out of medical evidence, his Honour reached the following conclusion:
"I would sentence you on the basis that, during the period of something around three years after [the victim] came to live with you and until the end of 2016 you subjected her to all of the abuse referred to in the occasions identified by the prosecution at trial and identified to the jury in the written memorandum. By reference to the identified occasions, that conduct included not only the sexual touching which the jury must at least have found proved, but also one instance of penetration of her mouth by your penis, two occasions involving both vaginal and anal penetration by penis, and one occasion of penetration of her vagina with a penis shaped object, a sex toy. All of the unlawful sexual acts are to be considered as part of a period of sustained sexual abuse which included acts of both vaginal and anal and oral penetration as well as other sexual touching."
71 In reaching his ultimate conclusion, the trial judge noted that seven particular occasions of sexual abuse were identified and correctly found it followed from the jury verdict that the jury was satisfied "that at least one unlawful sexual act was perpetrated against [the victim] on at least three of those separate occasions". Notwithstanding an exchange with the jury following delivery of the verdict,
17 No 7/2024
which is discussed later in these reasons, his Honour found that the verdict meant the jury had "accepted
the truth of [the victim's] evidence that sexual acts were perpetrated against her".72 During his sentencing remarks, the trial judge referred to the account given by the victim to police on 30 October 2017 when she was aged 11 years:
"She was describing events which she said occurred from about age seven until ceasing almost a year before. She told the police officer who interviewed her that you touched her on her private parts. Her description was initially hesitant. She said she didn't really like having to explain it. Her account did not have the flavour of a person, particularly a child of her age, giving a fabricated or fictitious or imagined account. She used simple language to make clear that she was referring to her vagina and anus, and that she clearly understood what those two parts of her body were. In the same interview, when asked where you were putting your penis, she said that it was inside her vagina and her bum and in her mouth. She said this happened lots and lots, that it generally occurred when your partner was out or asleep, and that you told her to keep her mouth shut about it. Again, in her own terms she referred to things being put in her vagina which she described with names like 'doodle toys' or 'pretend doodles', and by describing colours, which obviously referred to imitation penises or dildos. She described lying in the bath and how you would use a thing, she said she did not know what it was called, to 'stick it in her front body part.' She said it didn't make her feel good and as she got older you started putting bigger objects inside her. She described one occasion of having to suck your penis and rub her hands along it. She described how it would make her choke. She said that she had told her friends but asked them to not say anything about it."
73 As to the seven occasions, the trial judge summarised the substance of the evidence:
"The seven occasions specified by the prosecution involve unlawful sexual acts of varying seriousness. One involved touching the complainant's vagina in the shower. Another involved you touching her vagina in the shower and having you – having her touch your penis. One occasion involved you, in your bed, having her touch your penis and suck on it. One occasion involved you having her kiss your penis.
The remaining specified occasions allege also penetration of the vagina and anus. Without wishing to understate the seriousness of the sexual acts I first described, whether there was penetration of the vagina or anus either by penis or objects, or on one occasion with your finger, is a question relevant to the overall gravity of your conduct. It is the principal matter of controversy on sentencing."
74 The trial judge discussed the medical evidence and submissions on behalf of the appellant that his Honour should not be satisfied that any of the unlawful sexual acts involved penetration of the victim's vagina and anus. His Honour found that the penetrative acts occurred, "substantially as described by [the victim] in all essential respects".
75 As to the finding of penetrative conduct, on the appeal counsel for the appellant rather half- heartedly implied that as the finding was not supported by the medical evidence, such a finding should not have been made. The medical evidence was neutral. The finding was not only open to the trial judge, it was inevitable given his Honour's view that the victim's evidence was both truthful and reliable.
Appellant's case
76 Relying upon the decision of the High Court in Chiro v The Queen, the appellant submitted that the trial judge erred in not sentencing the appellant on a view of the facts most favourable to the appellant. This submission engaged two propositions. First, that subsection (6B) of s 125A, introduced in 2018, did not apply. Secondly, that even if s 125A(6B) applied, by reason of an answer given by the jury to a question asked by the trial judge following the verdict, his Honour was bound to sentence on the factual basis most favourable to the appellant.
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77 The exchange between the trial judge and the jury immediately following delivery of the verdict of guilty and confirmation of the verdict was as follows:
"HIS HONOUR: Alright. Thank you. Have a seat, Mr Foreperson. Mr Foreman, I have one other question of you in light of what I explained to you earlier, and I don't know whether the jury has addressed this or not. Is the jury in a position – sorry, is the jury agreed about which three or more of the seven identified occasions were proved? FOREPERSON: No, your Honour. HIS HONOUR: Alright, Thank you. Mr Richardson, I don't think I can take that any further. MR RICHARDSON: No. That's an indication of – HIS HONOUR: Not agreeing. MR RICHARDSON: Not accepting your invitation. HIS HONOUR: Yes. Thank you. Alright."
78 The exchange with the jury is to be considered in the context of the directions given by the trial judge to the jury that all members of the jury were not required to agree as to which three unlawful sexual acts had been proven.
79 At the commencement of his directions concerning the legal elements of the crime charged, the trial judge provided the jury with a memorandum in which the elements of crime of Persistent Sexual Abuse of a Child were set out:
"2 Persistent sexual abuse of a child 2.1 A person is guilty of the crime of persistent sexual abuse of a child if:
(a)
when the complainant was under the age of 17 years (and the accused was not married to the complainant);
(b)
he committed an unlawful sexual act against the complainant on at least three separate occasions during the period specified in the charge.
2.2 An unlawful sexual act includes the crimes of:
(a) indecent act with a young person; (b) indecent assault; (c) aggravated sexual assault; and (d) rape. 2.3
The accused cannot be convicted of the crime of persistent sexual abuse of a child unless the jury is satisfied beyond reasonable doubt that the accused committed an unlawful sexual act against the complainant on at least three occasions during the period covered by the indictment.
2.4 It is not necessary for each member of the jury to be satisfied that the unlawful
sexual acts were committed on the same three occasions.19 No 7/2024
2.5 It is not necessary for the Crown to prove the dates on which any of the unlawful sexual acts were committed or the exact circumstances in which any of them were committed. The Crown must prove sufficient detail to identify the occasions. The jury must be satisfied beyond reasonable doubt that three or more of the identified occasions are proved."
80 Of particular relevance to the issue under consideration is the direction in par 2.4 of the memorandum stating that it was not necessary for each member of the jury "to be satisfied that the unlawful sexual acts were committed on the same three occasions." This direction was in accordance with s 125A(4)(c), the provision introduced in 2018.
81 In his directions to the jury, the trial judge canvassed the memorandum and gave the following
directions:
"So 2.3 the accused cannot be convicted of the crime of persistent sexual abuse of a child unless the jury is satisfied beyond reasonable doubt that he committed an unlawful sexual act against the complainant on at least three occasions during the period covered by the indictment.
Now as I’ll explain to you in a few minutes there are – it is necessary for the State to at least identify separate occasions and seven are identified here and I’ll summarise them for you at the back of the memo. But it is not necessary for you as members of the jury to agree on which three. One member of the jury might think, well look, all seven are proved. Another member of a jury might think, well look, Occasions 1, 5 and 6 are proved. Another member of the jury might think well Occasion 2, 3 and 4 are proved. You need not agree on which of the seven. The only question is do all of you agree that its occurred at least three times. Three of these specified occasions. So is that clear? Seven are alleged. The crime is constituted by proof of three or more, at least three, but you need not agree on which three. Look you may agree, you may all agree, but you need not."
Discussion
82 The first question which arises is whether s 125A(6B) applied to the sentencing process. For the reasons earlier discussed, in my view the answer to that question is in the affirmative. Leaving aside the exchange with the jury following the verdict, by reason of the direction in s 125A(6B), the approach of the sentencing judge to the sentencing process was correct. His Honour was required by s 125A(6B) to make findings as to the nature and character of the offending relationship and was entitled to make the findings he enunciated in his sentencing remarks.
83 As discussed earlier in these reasons, when Chiro was decided, as a consequence of the decision in KBT, the law in South Australia under consideration in Chiro required extended unanimity as to the necessary sexual acts. The majority judgment of Kiefel CJ, Keane and Nettle JJ emphasised that the offence was constituted of "underlying acts of sexual exploitation". Unlike trafficking and drug type offences, the offence was not comprised of the course of conduct. Rather, the actus reus of the offence was the doing "of an act which constitutes an offence of a sexual nature in relation to the child concerned on three or more occasions", leading to the conclusion in KBT that extended unanimity as to the sexual acts was required. In Chiro the trial judge directed the jury in accordance with extended unanimity and the majority judgment pointed out that it "may be assumed that the jury reached the requisite agreement as to the commission of the same two or more acts of sexual exploitation" (438). Their Honours added that as the trial judge had declined to ask the jury which acts of sexual exploitation they had found to be proved, "there was and is no way of knowing which [acts] they were".
84 It was in these circumstances that the majority in Chiro emphasised it was for the jury to find which unlawful sexual acts comprised the actus reus of the offence and that if a judge does not, or
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cannot, get the jury to identify which of the alleged acts were found to be proved, the offender was to be sentenced on the basis most favourable to the offender. This was a situation which the majority contrasted with offences of a continuing nature such as trafficking a prohibited drug over a period of time, in respect of which the jury need not be agreed "as to each of the particular acts which are alleged to have comprised the actus reus of the offence" (451).
85 Although the offence under s 125A is described as persistent sexual abuse of a child, and subs (2) provides that a person who "maintains a sexual relationship" with a young person, and to whom the person is not married, is guilty of a crime, s 125A(3) provides that an accused is guilty of the offence if the accused committed, on at least three occasions, an unlawful sexual act in relation to the young person. It is the commission of the unlawful sexual acts, on at least three occasions, which amounts to the actus reus of the offence. I agree with Pearce J who determined in State of Tasmania v RBAY [2023] TASSC 41 that unlike provisions in other States, "s 125A does not require proof of a relationship or sexual relationship in addition to proof of the sexual acts" [17]. As Pearce J found, "the ordinary literal and grammatical meaning of the text of s 125A(3) permit no other interpretation" [18].
86 Thus the situation is reached where, as in KBT and Chiro, the actus reus of the offence is found in the commission of the specified number of unlawful sexual acts. However, unlike KBT and Chiro, where more than the minimum number of unlawful sexual acts are relied upon since the 2018 amendments, individual members of the jury do not have to be agreed as to which three sexual acts have been proven (s 125A(4)(c)). Further, as dictated by s 125A(6B), a judge is not required to ask any questions of the jury for the purpose of making findings as to the nature or character, or both the nature and character, of the sexual relationship maintained. A sentencing judge is not required to enquire whether the jury are agreed as to which three acts are proven. In the absence of questioning in this regard, or the provision of some form of special verdict, a sentencing judge has no way of knowing if an agreed view was reached by the jury. All that is known from the verdict is that each individual member of the jury was satisfied that on at least three occasions, the accused committed an unlawful sexual act in relation to the young person concerned. It is in these circumstances that s 125A(6B) requires the sentencing judge to make findings of fact for the purposes of sentence. In particular, the sentencing judge is directed by s 125A(6B) to make findings as to the "nature and character" of the sexual relationship maintained in breach of s 125A(2).
87 The effect of legislative reform removing the requirement for extended unanimity was considered by the New South Wales Court of Criminal Appeal in R v RB [2022] NSWCCA 142. The court was concerned with the crime of persistent sexual abuse of a child in respect of which the jury had to be satisfied that the adult maintained an unlawful sexual relationship with a child. An "unlawful sexual relationship" was defined as a "relationship in which an adult engages in two or more unlawful sexual acts with or towards a child over any period." Significantly for present purposes, the relevant New South Wales provision provided:
"(a) the jury must be satisfied beyond reasonable doubt that the evidence establishes
that an unlawful sexual relationship existed, and(b) the jury is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence, and (c) the members of the jury are not required to agree on which unlawful acts constitute the unlawful relationship."
88 In addition, the legislation directed that the trial judge "must inform the jury of the requirements
of (a)-(c)".
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89 In a helpful judgment with which Harrison and Wright JJ agreed, Fagan J identified the question for the court being "how a sentencing judge is to determine facts relevant to the objective gravity of an offence against s 66EA after a jury has made a finding of guilt". His Honour explained that the issue arose because s 66EA had been enacted "in such terms that a guilty verdict does not require jury unanimity regarding what sexual acts towards a child have been committed to constitute the unlawful sexual relationship." His Honour continued:
"The sentencing judge who is required to assess the seriousness of the offending does not merely face a difficulty of identifying or inferring what sexual acts the jury may have found proved but must proceed on the basis that, expressly by statute, the verdict does not entail that any finding at all with respect to any sexual act has been made unanimously by the jury."
90 The same situation faces a sentencing judge pursuant to s 125A. By reason of s 125A(4)(c), the verdict of guilty does not entail that any finding that the jury was agreed with respect to a particular sexual act.
91 In RB, in view of the High Court decisions in Chiro and KBT, the trial judge had sentenced the offender on the basis of findings most favourable to the offender, namely, the least serious of the sexual acts particularised in the indictment. The Court found the sentencing judge erred in this respect.
92 Fagan J commenced his discussion with an analysis of the general principles governing fact finding for the purposes of sentence after a verdict by a jury:
"General principles of fact-finding relevant to sentence after verdict
[21] The general principles upon which a trial judge makes findings of fact relevant to sentence following a jury verdict of guilty were summarised by this Court in R v Isaacs (1997) 41 NSWLR 374 at 377-378 as follows (some citations omitted):
[1]
Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury.
[2]
Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings. The fixing of an appropriate sentence ordinarily involves an exercise of judicial discretion, and it is for the judge to find the facts which are material to that exercise of discretion: Savvas v The Queen (1995) 183 CLR 1.
[3]
The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury. This may produce the result that, in a particular case, the view of the facts which the judge is obliged to take is different from the view which the judge would have taken if unconstrained by the verdict: cf Maxwell v The Queen (1995) 184 CLR 501. [...]
[4]
A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt.
[5]
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. However, the
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practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender. When that occurs, it will be because of the application of the principle referred to in 4 to the facts of the particular case, and not because of some principle requiring sentencing on the basis of leniency.
[22] That summary was approved in Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67, in which Gleeson CJ, Gummow and Hayne JJ made the following general observations:
[5] ... If, and insofar as, the degree of culpability is itself an element of the offence charged, that will be reflected in an issue presented to the jury for decision by verdict. In such an event, the sentencing judge will be bound by the manner in which the jury, by verdict, expressly or by necessary implication, decided that issue. But the issues resolved by the jury's verdict may not include some matters of potential importance to an assessment of the offender's culpability. That is not unusual. It is commonplace. [7] ... [A]lthough it is possible to infer that, at the least, certain parts of the evidence must have been accepted by the jury, it is impossible to know whether some or all of the jurors accepted all of the evidence relied upon by the prosecution. Jurors are normally instructed that they are entitled to choose between parts of the evidence. In order to convict they must find, beyond reasonable doubt, the constituent elements of the offence charged, but, provided they reason to such a conclusion in a manner consistent with properly framed judicial directions, their process of reasoning does not necessarily have to be unanimous. Unless a particular piece of evidence is logically crucial to the prosecution case, they do not have to accept, beyond reasonable doubt, any particular witness, or any particular evidence. These are familiar aspects of what is sometimes described as the inscrutability of a jury verdict. [8] On occasion, this may mean that a jury's verdict on the black and white issue of guilt may leave to a sentencing judge a difficult task of deciding questions of degree involved in assessing an offender's culpability, and the proper measure of punishment. There are many cases involving either a plea of guilty, or a conviction following a plea of not guilty, where the task of assessing an offender's culpability is more difficult than that of determining his or her guilt. [9] ... [10] The most obvious example of an offence where a guilty verdict may leave unresolved large questions as to the degree of culpability is manslaughter. Such questions then fall to be decided by the sentencing judge, who may receive little assistance from the need for consistency with the jury's verdict."
93 Prior to amendment, s 66EA of the New South Wales Crimes Act required extended unanimity with respect to the jury finding of a sexual offence on three or more separate occasions. That is, it specifically provided that all members of the jury must be satisfied as to the same three occasions. Fagan J then discussed Chiro in the context of the repealed provision and canvassed the approach of the New South Wales Court of Criminal Appeal in Gould v R [2021] NSWCCA 92 where the court distinguished Chiro. It is unnecessary to discuss the basis upon which Chiro was distinguished.
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94 Fagan J expressed the view that the inapplicability of the principle in Chiro to a charge under s 66EA as amended was "clearer still" than in Gould. The requirement for extended unanimity had been removed. In the matter before the court, the jury had been told that individually they were required to be satisfied that at least two acts had been committed, but they did not have to agree upon which acts they were. In that context, Fagan J observed [43]:
"It follows that the jury's verdict of guilty on the count laid under s 66EA does not reflect that they made a unanimous finding upon any of the large number of unlawful sexual acts particularised in paragraphs (a)-(h) on the indictment. The reasonings and conclusion of the majority of the High Court in Chiro v The Queen are therefore inapplicable."
95 As to whether the trial judge should have asked the jury to identify which acts the jury had found proven, Fagan J said [43]:
"There would have been no basis upon which her Honour could have asked the jury to identify which acts they found proved. Such a request would have contradicted the summing up, which in accordance with s 66EA(5)(c), did not require the jury to agree upon any of the acts."
96 Fagan J concluded there was no basis for the sentencing judge to have adopted the two least serious particulars. His Honour then spoke of the collective nature of a jury [44]:
"[44]
… In light of the directions given pursuant to s 66EA(5)(c), the guilty verdict does not signify that the jury, as a collective body constituting the tribunal of fact, made any finding that any one of the alleged unlawful sexual acts was committed. Only findings that have been made unanimously (or by statutory majority, where circumstances permit) can be spoken of as findings of a jury. The satisfaction of one juror that particular (c) of the charge in this case had been proved beyond reasonable doubt would not be a jury finding. Nor would the satisfaction of three jurors with respect to an event within particular (a), or of seven jurors as to particular (e). In Cheatle v The Queen [1993] HCA 44; (1993) 177 CLR 541 the High Court identified the ancient origins and modern acceptance of “the common law’s unwavering insistence” that the verdict of a criminal jury must be unanimous. The statutory modification of the common law in New South Wales, permitting majority verdicts, does not detract from the essential nature of jury determinations, as expressed in the following statement quoted by the High Court from R v Bain [1992] 1 SCR 91 at 128:
'In our criminal law, the jury only exists as a collectivity, and not as a
group of individuals.'
[45] It could not be imputed to the jury that they found facts falling somewhere within a range between the two least serious particulars and, at the opposite extreme, all of the particulars. The jury must be taken to have complied with the s 66EA(5)(c) direction, meaning that as regards specific sexual acts they made no findings with which the sentencing judge could have endeavoured to be consistent. Conventional adoption of the two least serious particulars could not be justified as directed to achieving consistency. The adoption by the learned trial judge of any particulars at all, as if they represented the least serious findings inherent in the finding of guilt, in fact would involve sentencing the offender on a basis that exceeded anything the jury could be said to have determined unanimously against him."
97 As to the position facing the sentencing judge, and the reduced role of the jury in respect of the fact finding process, the following observations of Fagan J are pertinent [49]:
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"Because jurors might differ about which unlawful sexual acts are proved and which are not, a verdict that the defendant is guilty of an offence against s 229B may leave unresolved some matters that bear significantly upon the defendant’s culpability, such as the frequency and seriousness of the unlawful sexual acts involved in the unlawful sexual relationship. In the result, trial judges may be required to make significant findings of fact in the sentencing process. In this respect s 229B, like some other provisions (such as those which create the offence of trafficking in drugs), reduces the role of the jury in the fact finding process and to that extent erodes the safeguards traditionally associated with trial by jury of more specific offences (see AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438 at 470 [90] - 474 [98]), but that is not an unconventional feature of trial by jury (see, for example, Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 at 10-11 [6]- [10] per Gleeson CJ, Gummow and Hayne JJ). These results are necessary corollaries of the qualified dispensation from alleging particulars given by s 229B(4)(a) and are justifiable by the considerations I have already discussed [referring to [45] where in his Honour identified the difficulty that child witnesses may have in distinguishing the details of individual acts of sexual misconduct]."
98 Fagan J then discussed the requirement that, in addition to proof of at least two unlawful sexual acts, the Crown was required to prove that the accused maintained a sexual relationship. This requirement does not exist under s 125A. His Honour was of the view that Parliament had not intended to prescribe that an unlawful sexual relationship for the purposes of s 66EA would be established by proof, without more, of the commission of at least two unlawful sexual acts. The judgment continued [62]:
"I conclude that s 66EA is to be interpreted as requiring that in order to return a verdict of guilty on a count laid under the section, a jury would have to be satisfied that for some duration within the charge period the accused committed against the complainant child multiple unlawful sexual acts, as defined in subs (15), with a frequency and continuity of the same order as that which the Queensland Court of Appeal has held to be required under s 229B of the Criminal Code (Qld). It is an element, indeed it is the gravamen, of the offence that multiple unlawful sexual acts must have been perpetrated not merely in isolated circumstances or sporadically but with such a degree of continuity and habituality as to constitute an ongoing association or connection with respect to sexual activity. This may be characterised as a course of conduct offence, comparable with offences of trafficking in drugs or keeping a disorderly house, as referred to by Brennan CJ, Toohey, Gaudron and, Gummow JJ in KBT v The Queen at p 42."
99 Fagan J observed that the jury need only be agreed as to the maintenance of a sexual relationship, "without having to make unanimous findings about any specific sexual acts", with the consequence "that upon a verdict of guilty being returned and the jury being discharged there has been no determination of any of the facts that must be ascertained in order to assess, meaningfully, what the offender is to be punished for" [66]. Later his Honour said at [69] and [70]:
"[69]
… The concern is that, for a sentence to be passed, there have to be evidence- based findings of a tribunal of fact concerning the extent and seriousness of the offending. At present there are none. There are none by the jury as a collective body because they were not required to reach unanimity on any particular act or acts and there are none by the judge because the two least grave particulars were just adopted conventionally. Evidence-based findings are essential to this Court’s consideration of whether the sentence imposed at first instance is inadequate. Public confidence in the ultimate sentencing outcome depends upon the facts of the misconduct having been determined by a lawful and credible process.
[70]
As the decision in Chiro v The Queen is inapplicable for the reasons given at [42]-[45] above, the learned trial judge was required to determine the facts of
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the respondent’s offending, applying the principles established in The Queen v Olbrich, Cheung v The Queen and R v Isaacs. This Court should remit the case to the District Court for her Honour to undertake that task."
100 The crime defined by s 125A is different from the crime specified in the New South Wales provision with which Fagan J was concerned. In New South Wales, in addition to proof of at least two unlawful sexual acts, the Crown was required to prove that the accused maintained a sexual relationship with a child "according to the ordinary understanding of the words 'maintains' and 'sexual relationship'" [60]. As Pearce J correctly found in RBAY, guilt of an offence under s 125A is established "by proof, without more, of three separate occasions during a particular period on which the accused committed an unlawful sexual act against a young person" [30]. His Honour continued:
"If those acts are proved then that conduct constitutes maintenance of a sexual relationship within the terms of subs (2), and there is no additional requirement for proof of a relationship or sexual relationship."
101 Notwithstanding the difference, the views of Fagan J are directly applicable to the operation of s 125A and the fact-finding exercise to be undertaken by the sentencing judge. I agree with those views. There is no collective decision of the jury as to which three or more unlawful sexual acts have been proven. The jury is specifically told that, individually, the jurors are not required to be in agreement as to which three acts have been proven. Recognising this position, through s 125A(6B), the legislature specifically passed responsibility for making findings in relation to the nature or character, or both the nature and character, of the sexual relationship maintained to the sentencing court. Further, the legislature specifically stated that the court is not required to ask any questions of the jury for these purposes.
102 In Tasmania, the legislature chose not to alter the actus reus of the crime by adding a requirement that, in addition to specific sexual acts, the Crown must prove the accused maintained a sexual relationship. Proof of the relationship is found in proof of the sexual acts. Rather, in response to KBT and Chiro, as has occurred in other jurisdictions, the legislature chose to:
(1) Remove the requirement for extended unanimity as to the specific acts comprising the
actus reus; and(2)
Aware that the jury verdict would no longer identify agreement as to which acts were committed, specifically direct a sentencing court to make findings as to the nature and character of the sexual relationship.
Question to jury
103 Notwithstanding the absence of a requirement to ask any question of the jury, the trial judge posed the question earlier cited, and received a negative answer. In my view, nothing can be read into that answer beyond an indication by a jury that the jury was not in a position to assist the judge. It is simply not known whether the jury even considered the question of agreement as to the sexual acts perpetrated, particularly as the trial judge specifically directed the jury that individual members of the jury were not required to be in agreement as to which three or more alleged sexual acts had been proven. Individually, the jury members were not required to consider all of the alleged sexual acts. Once a juror was satisfied of at least three, the juror was not required to go further and consider other acts.
104 It follows from a requirement to make findings as to the nature and character of a sexual relationship that the Court must make findings as to the specific sexual acts and other sexual abuse about which a complainant gave evidence. The approach of the trial judge to findings of fact for sentencing purposes was correct.
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105 Having regard to the terms of s 125A(6B), I agree with the view of Fagan J that, generally speaking, the jury should not be asked any questions concerning findings in relation to findings as to sexual acts. As Fagan J pointed out, such questions contradict the directions in the summing up that the jury do not have to be agreed concerning the acts.
Sentencing considerations
106 I return to the question of sentence. There was no error in the approach of the trial judge and his findings were open on the evidence. Given his Honour's view of the complainant, those findings were inevitable.
107 In addition to the findings to which I have referred, his Honour dealt briefly with the harm caused by the appellant to his daughter:
"[The victim], in her victim impact statement, speaks of feeling emotionally withdrawn, unclean, fearful and unsafe. Her sleep is disturbed. I have little doubt that further impacts will emerge with her emotional, psychological and sexual development and as she starts to form relationships. "
108 To the summary provided by the trial judge I would add that the victim explained being "mentally scarred". She would stand in the bathroom for hours "trying to get the feeling of my father's hands off my body". She explained feeling that she did not possess any "sense of self", and never felt like she was the appellant's child.
109 This brief summary should not detract from a full appreciation of the severity of the impact upon the victim. It is well recognised that this type of conduct causes damage to the well-being of victims which lasts for many years, if not their entire lives.
110 In referring to the aggravating circumstances identified in s 11A of the Sentencing Act, the trial judge made the following pertinent and correct observations:
"She was under your care, supervision and authority. There could hardly have been a greater breach of trust, not only of her, but of her mother who entrusted her to your care before her death. The offending commenced when she was young, much younger than 13. Anal rape is a particularly degrading form of abuse. [The victim] has been deprived of the secure, safe and loving childhood she was entitled to expect."
111 As the trial judge observed, the appellant was not entitled to the benefit of a plea of guilty. Punishment, vindication of the victim and general deterrence were important features of sentencing to which the trial judge had regard.
112 As to matters personal to the appellant, his Honour noted the appellant was then aged 35 and in a new relationship. He referred to the fact that the appellant was raised by his mother who remained supportive of him, and that the appellant had a good industrial record with no relevant prior convictions.
113 The trial judge was correct in referring to anal rape as a "particularly degrading form of abuse". Contrary to the submissions of counsel for the appellant before the trial judge, the entire course of conduct was degrading. Any sexual abuse of a child, particularly by the child's natural father or a member of the family, is degrading.
114 The appellant's conduct should be recognised as nothing short of appalling. He engaged repeatedly in violent and prolonged sexual abuse of his young natural child. It is correct that the appellant did not apply gratuitous physical violence to the child but, lest there be any misunderstanding, it should be understood clearly that every sexual crime is a crime of violence. The violence is inherent
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in the bodily violation without consent or bodily violation of a child too young to consent. If the bodily violation is accompanied by other gratuitous physical violence, such additional violence is an aggravating factor attending the commission of the crime.
115 As the trial judge noted, the appellant abused his position of trust. He abused that trust within the confines of the family home where his child was entitled to feel, and be, safe and protected.
116 There are no mitigating circumstances accompanying the commission of the crime. There is nothing in the appellant's personal circumstances capable of attracting any degree of mitigation. He was not raised in dysfunctional circumstances which might assist in explaining his conduct or might attract some degree of mitigation. There was nothing in the material before the trial judge, and there is nothing before this Court, to even hint at any degree of remorse.
117 Regrettably, in recent years it has become apparent that these types of crimes are far too common. They are difficult to detect because they are committed in domestic circumstances and, frequently, within the confines of the matrimonial home. The community is greatly disturbed by these crimes and expects the Court to respond accordingly. Protection of vulnerable persons, young and old, is of paramount importance.
118 The sentence was well within the range of the sentencing discretion.
Key Legal Topics
Areas of Law
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Criminal Law
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Statutory Interpretation
Legal Concepts
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Appeal
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Sentencing
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Statutory Construction
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