QUESTION OF LAW RESERVED (NO 1 OF 2018)
[2018] SASCFC 128
•5 December 2018
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
QUESTION OF LAW RESERVED (NO 1 OF 2018)
[2018] SASCFC 128
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Lovell and The Honourable Justice Hinton)
5 December 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE LEGISLATURE - LEGISLATION AND LEGISLATIVE POWERS - EXAMINATION OF VALIDITY OF LEGISLATION BY COURTS
On 20 January 2017 Stephen Hamra was found guilty by a jury of one count of the persistent sexual exploitation of a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). He is yet to be sentenced.
On 13 September 2017 the High Court delivered judgment in Chiro v The Queen (2017) 260 CLR 425. The Court held that a judge presiding over a trial of a defendant charged with a s 50(1) offence should, if the jury convict the defendant of the charge and if more than two acts of sexual exploitation were particularised, ask the jury which of the particularised acts of sexual exploitation they agreed had been proven beyond reasonable doubt. If the trial judge did not do so, then the defendant was to be sentenced on the version of the facts most favourable to him or her. In Mr Hamra’s trial the judge did not ask the jury which of the acts of sexual exploitation particularised had been proved to the criminal standard. As such, Chiro v The Queen required that Mr Hamra be sentenced on the version of the facts most favourable to him.
On 24 October 2017 the Statutes Amendment (Attorney-General’s Portfolio) (No 2) Act 2017 (SA) (Amendment Act) commenced operation. Section 9(2) of that Act provided that where a person had been found guilty by a jury of the persistent sexual exploitation of a child and the jury was not asked by the trial judge which of the acts particularised had been proved beyond reasonable doubt, the sentencing court was not required to sentence on the basis most favourable to the offender but rather sentence on the basis that the jury found all acts particularised in the charge proven beyond reasonable doubt unless the sentencing judge determined which acts of sexual exploitation he or she considered had been proved.
On 8 February 2018 the judge who presided over Mr Hamra’s trial, and who eventually will sentence Mr Hamra, reserved the following question of law for the consideration and determination of the Full Court: “Is section 9(2) of the Statutes Amendment (Attorney-General’s Portfolio) (No. 2) Act 2017 (SA) valid?”.
Held, per Vanstone, Lovell and Hinton JJ, the question reserved should be answered “No”.
Per Vanstone J, s 9(2) provides for an impermissible intrusion into the processes and decisions of the courts by the executive, such as to impair the institutional integrity of the court by the State legislature.
Per Hinton J (Lovell J agreeing), s 9(2) substantially undermines the legitimacy of the judicial process and the exercise of judicial power for it directs a court that has adjudged a defendant’s liability to punishment after a trial by jury, to put that adjudgment aside and repeat the exercise without a jury and the protections a jury provides in order to determine a different basis for punishment. The function conferred by s 9(2) is incompatible with the District Court’s constitutionally mandated position.
Acts Interpretation Act 1915 (SA) ss 19, 22, 22A, 34; Criminal Law Consolidation Act 1876 (SA) s 368; Criminal Law Consolidation Act 1935 (SA) ss 50, 276(1), 284(1), 350(2); Juries Act 1927 (SA) ss 6, 7, 57; Statutes Amendment (Attorney-General’s Portfolio) (No 2) Act 2017 (SA) ss 6, 9, referred to.
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; Chiro v The Queen (2017) 260 CLR 425, applied.
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; Alqudsi v The Queen (2016) 258 CLR 203; Attorney-General (NT) v Emmerson (2014) 253 CLR 393; Australian Building Construction Employees’ and Builders Labourers’ Federation v The Commonwealth (1986) 161 CLR 88; Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1; Australian Education Union v Fair Work Australia (2012) 246 CLR 117; Australian Education Union v Lawler (2008) 169 FCR 327; Brown v The Queen (1986) 160 CLR 171; Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; Cheng v The Queen (2001) 209 CLR 1; Condon v Pompano Pty Ltd (2013) 252 CLR 38; Forge v Australian Securities and Investments Commission (2006) 228 CLR 45; H A Bachrach Pty Ltd v Queensland (1998) 195 CLR 547; International Finance Trust Co Ltd v New South Wales (2009) 240 CLR 319; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; Lee v NSW Crime Commission (2013) 251 CLR 196; Newell v The King (1936) 55 CLR 707; Nicholas v The Queen (1998) 193 CLR 173; North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; Plaut v Spendthrift Farm Inc 514 US 211 (1995); R v Isaacs (1997) 41 NSWLR 374; Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629; Silbert v Director of Public Prosecutions (WA) (2004) 217 CLR 181; South Australia v Totani (2010) 242 CLR 1; Wainohu v New South Wales (2011) 243 CLR 181; Ward v Williams (1955) 92 CLR 496, considered.
QUESTION OF LAW RESERVED (NO 1 OF 2018)
[2018] SASCFC 128Court of Criminal Appeal: Vanstone, Lovell and Hinton JJ
VANSTONE J: A Judge of the District Court has reserved a question of law for consideration by this Court pursuant to s 153 of the Criminal Procedure Act 1921 (SA). The question is relevant to the sentencing of the defendant. The question raises the validity of s 9(2) of the Statutes Amendment (Attorney-General’s Portfolio) (No 2) Act 2017 (SA) (the “Amending Act”), which, on its face, governs the sentencing. The question is:
1.Is s 9(2) of the Statutes Amendment (Attorney-General’s Portfolio) (No 2) Act 2017 (SA) valid?
For the reasons which follow I consider that s 9(2) is invalid and that the sentencing must proceed in accordance with the law as it applied prior to the enactment of s 9(2).
Background
The defendant, Stephen John Hamra, was charged on information dated 16 January 2017 with persistent sexual exploitation of a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). The amended particulars on the information were as follows:
Stephen John Hamra between the 9th day of October 1979 and the 10th day of October 1987 at Morphett Vale and other places, committed more than one act of sexual exploitation of [GT] a child under the prescribed age.
It is further alleged that the acts of sexual exploitation performed by Stephen John Hamra upon [GT] were, touching [GT’s] genitals, placing his penis between [GT’s] legs, causing [GT] to touch his penis and causing [GT] to perform fellatio upon him.
The defendant pleaded not guilty. The defendant’s trial proceeded before the Judge and a jury and on 20 January 2017 the jury returned a guilty verdict. The allocutus was given and the matter was adjourned for sentencing.
On 8 February 2018, the Judge reserved a question of law for consideration and determination by the Full Court. On 19 July 2018, shortly before the appeal hearing, the reservation of the question of law was formalised.
In his summing up the Judge directed the jury that, in order to find the defendant guilty they needed to be agreed on two or more acts of sexual exploitation. Upon delivery of the verdict the Judge did not ask the jury which acts of sexual exploitation they had found to be proved.
On 13 September 2017, the High Court of Australia delivered Chiro v The Queen (2017) 260 CLR 425. In essence, the High Court determined that, in circumstances where a jury delivered a general verdict of guilty of a charge against s 50 of the CLCA, and the jury was not questioned as to which of the acts of sexual exploitation alleged were found to be proved, the sentence would have to be delivered on the basis of the view of the facts most favourable to the defendant.
In response to that decision the South Australian Parliament passed the Amending Act. It effected a number of amendments to the CLCA including replacing the former s 50 offence with a new offence, the actus reus of which is an unlawful sexual relationship. In the same Act Parliament made provision for the sentencing of those persons who had been convicted but not sentenced for an offence against the former s 50. That provision relevantly reads as follows:
9—Sentencing for offences under previous law
(1)…
(2)Where, after the commencement of this section, a person is to be sentenced for an offence against section 50 of the Criminal Law Consolidation Act 1935 (as in force before the commencement of section 6 of this Act) the following provisions apply:
(a) a verdict of guilt handed down by the trier of fact in relation to the offence is taken to be, and always to have been, a finding by the trier of fact that the person is guilty of the acts of sexual exploitation comprising the course of conduct alleged by the information;
(b) notwithstanding paragraph (a), in sentencing the person for the offence, the sentencing court may determine which alleged acts of sexual exploitation the sentencing court finds proved beyond a reasonable doubt and may disregard any acts of sexual exploitation that the sentencing court is not satisfied were proved beyond a reasonable doubt;
(c) for the avoidance of doubt, the sentencing court need not ask any question of the trier of fact directed to ascertaining which acts of sexual exploitation, or which particulars of the offence as alleged, the trier of fact found to have been proved beyond a reasonable doubt and, unless it has so determined in accordance with paragraph (b), need not sentence the person on the view of the facts most favourable to the person.
(3)This section does not apply in relation to the particular matter that was the subject of the determination in Chiro v The Queen [2017] HCA 37 (13 September 2017).
Note—
Except as provided in subsection (3), this section negates the effect of the determination of the High Court in Chiro v The Queen [2017] HCA 37 (13 September 2017).
Evidence was presented upon the hearing in this Court that a small group of persons fall within the ambit of s 9(2) of the Amending Act. Some of those have pleaded guilty and are awaiting sentence. Others, like the defendant, were convicted by verdict either of a jury or of a judge sitting alone. The Court indicated it would rule on the admissibility of this evidence subsequently. In my view, only the letter of the Director of Public Prosecutions dated 11 July 2018 is relevant. I would receive it.
It is necessary to look more closely at the two judgments in Chiro making up the majority, as the way Chiro is to be interpreted is a matter of dispute between the parties.
Like the present defendant, Mr Chiro was convicted for persistent sexual exploitation of a child. The particulars of the charge alleged six types of conduct amounting to sexual exploitation, varying markedly in seriousness. The trial judge there directed the jury that before convicting the appellant they had to be unanimous as to two or more acts of sexual exploitation. Upon the jury returning a verdict of guilty the trial judge did not question the jury as to which acts or which types of acts were found to be proved. The judge sentenced on the basis that her Honour accepted all the allegations made by the victim in her evidence.
The High Court’s decision in Chiro determined, by majority, that the actus reus of an offence against the then s 50 was two or more of the discrete underlying alleged acts of sexual exploitation defined by reference to sexual offences in the CLCA. It was for the jury alone to find the actus reus of the offence.
The plurality judgment was that of Kiefel CJ, Keane and Nettle JJ. Their Honours observed that objections to asking the jury to identify which alleged acts were found to be proved were not well made in relation to an offence against s 50. Their Honours said at [37]:
Inasmuch as the actus reus of the offence is comprised of discrete underlying acts of sexual exploitation that are defined by reference to sexual offences found in the CLCA, and inasmuch as the requirement of extended jury unanimity applies to each of those underlying acts of sexual exploitation, most of Roden J’s objections adopted by the New South Wales Court of Criminal Appeal in Isaacs are in this case irrelevant.
The plurality noted that it was “for the jury alone to find the actus reus of an offence alleged”: [39]. The underlying acts were described as “an element of the actus reus”: [42]. In relation to sentence for such an offence the plurality said at [44]:
If the accused is convicted, however, the sentence to be imposed is to be determined by reference to each sexual offence which the alleged acts of sexual exploitation would constitute if charged separately, as if the accused had been convicted of each of those offences. For that reason, the principle laid down in R v De Simoni is instructive. Plainly, an accused is not to be sentenced for an offence which the jury did not find the accused to have committed.
(Footnote omitted)
I pause to set out the footnoted references to R v De Simoni (1981) 147 CLR 383. The first reference was to a passage in the reasons of Gibbs CJ, with whose judgment Mason J and Murphy J agreed. That passage is at 389:
However, the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted. Section 582 reflects this principle. The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.
At common law the principle that circumstances of aggravation not alleged in the indictment could not be relied upon for purposes of sentence if those circumstances could have been made the subject of a distinct charge appears to have been recognized as 'early as the eighteenth century…
(References omitted)
The next reference was to a passage in the reasons of Wilson J at 395-396, as follows:
The primary rule is that the judge must sentence the prisoner for the offence of which he has been convicted. He must not, even though the actual sentence may be within the range allowed for that offence, sentence for some other more serious offence which he is satisfied has been committed… On the other hand, the judge is not only entitled but bound to take into consideration the circumstances surrounding the offence of which the prisoner has been convicted, so long as those circumstances are not inconsistent with the plea or verdict… But he must not punish the prisoner for additional offences with which he has not been charged…
(References omitted)
Then, at 406, Brennan J said this:
Ordinarily a contest upon an issue of fact is resolved by the sentencing judge after hearing evidence relating to that fact if the fact has not been determined by a jury verdict and if the fact is of sufficient importance to justify a hearing. But where statute provides that a particular issue is susceptible of resolution by the verdict of a jury, a sentencing judge cannot deny an offender his right to a jury trial of that issue, and himself assume the function of finding the facts. Where there is a contest as to a circumstance of aggravation which might have been alleged in an indictment and submitted to a jury's determination, but which was not so determined, the judge cannot impose sentence on the footing that the circumstance of aggravation has been established.
Returning to Chiro, the plurality held that the judge should have exercised her discretion to ask the jury to specify which of the particularised acts were found to be proved: [46]. The nature of a s 50 offence, requiring the jury to agree upon the acts comprising the actus reus, was contrasted with offences of a continuing nature, such as trafficking a prohibited drug, where the jury was not required to agree upon the acts comprising the actus reus: [52]. Since the judge had not questioned the jury as to the nature of the acts found proved, the defendant fell to be sentenced “on the basis most favourable to the offender”: [52].
Bell J gave separate reasons for joining in the orders of the plurality. Her Honour agreed that there was no impediment to the trial judge asking the jury which acts of sexual exploitation were found to be proved: [67]. Her Honour observed that Cheung v The Queen (2001) 209 CLR 1 stood for the principle that it was the judge’s role to determine the facts relevant to sentencing, subject to the constraint that the determination must be consistent with the verdict. She said that it was the content of that constraint that was in question. Importantly, in Cheung, issue was not joined on the nature and extent of Cheung’s knowing involvement in importation, but rather on whether Cheung was knowingly concerned in it at all. Her Honour continued at [71]:
By contrast, the offence with which the appellant was charged was constituted by the commission of more than one act of sexual exploitation over an interval of not less than three days. The acts on which the prosecution relied to establish the offence were particularised in the Information and issue was joined as to the commission of each. The verdict establishes conclusively that the appellant engaged in the sexual exploitation of [the complainant] by the commission of at least two of the particularised acts over a period of not less than three days, and no more. To sentence the appellant on the basis that he committed all of the particularised acts upon which issue was joined is to deprive the requirement of consistency with the verdict of practical content.
Bell J then referred to the R v De Simoni principle and to Kingswell v The Queen (1985) 159 CLR 264. Those principles were inconsistent, her Honour said, with the Director’s submission that it was open to the judge to sentence on her own assessment of the appellant’s conduct.
The other member of the bench, Edelman J, was in dissent.
Therefore there is, with respect, a slight difference in analysis between the plurality and Bell J.
The plurality said that each of the underlying acts of sexual exploitation was capable of forming part of the actus reus of the offence which the jury found proved. It was for the jury, not the judge, to determine what offence was proved. By means of questioning the jury the verdict should have revealed what was the actus reus found proved. As it stood, the judge was not entitled to impose sentence on the footing that the more serious allegations were made out. Therefore the defendant had to be sentenced on the basis most favourable to him.
Bell J said that in the trial the commission of each of the particularised acts was placed in issue. Principle required the sentence to be consistent with the verdict. The verdict was silent as to which of the acts alleged were found proved. In those circumstances, since there could be no demonstrated consistency between verdict and sentence, the defendant had to be sentenced on the basis most favourable to him.
The arguments
In relation to the effect of s 9(2) of the Amending Act Mr B Doyle, counsel for the defendant, argued that while s 9(2) draws a distinction between the trier of fact and sentencing court, in practical terms its real operation is in respect of trials by jury. He submitted that s 9(2)(a) deems the verdict of guilt to have the status of a finding of guilt of all acts of sexual exploitation alleged in the information. He argued that this is to deem that the verdict establishes more than it actually established. He suggested that, subject to s 9(2)(b), the effect is to legislatively alter what can be taken to be the ambit of the jury’s verdict in relation to identification of the elements of the actus reus. To that extent, he put, there is a legislative deeming of guilt as to elements of the composite offence. Again subject to s 9(2)(b), he put that the further consequence was to change the practical content of the sentencing court’s obligation to sentence consistently with the jury’s verdict and not to sentence for an offence which the offender could not – absent jury questioning – be shown to have committed.
In relation to s 9(2)(b), Mr Doyle argued that it confers a discretion on the sentencing judge not to sentence the defendant in respect of all the alleged acts of sexual exploitation, but to determine which acts the judge found proved and sentence only for those. Mr Doyle argued that s 9(2)(c) made it clear that the court need not sentence on the view of the facts most favourable to the defendant. Although Mr Doyle submitted that s 9(2)(b) operated in a discretionary way, he put that even if the respondent’s argument that it was mandatory were accepted, it would not detract from the defendant’s argument that the section was invalid, because the court was being directed to take the verdict as something which it could not be shown to have been.
Counsel argued that s 9(2) worked a significant and essentially retrospective alteration to the manner and outcome of judicial proceedings. In this context the jury was to be seen as a constituent element of the court. The section had the effect of altering an essential feature of the proceedings – that it was for the jury to determine the actus reus – and it did so after the evidence had been led and the verdict received. The section required that a legislatively deemed finding as to the actus reus be substituted and applied, subject only to the judge’s discretion to sentence on a different basis. Counsel argued that the discretion given to the sentencing judge was not such as to ameliorate the legislative alteration to the process. Even if the judge chose to sentence on a basis which was less than the full complement of allegations contained in the information, what would remain would be an alteration to the judicial process, effected during the process itself. In any event, the defendant might well be punished for commission of an actus reus not found to be proved by the jury.
Counsel argued that such a legislatively introduced regime tended to rob the judicial process of the appearance of impartiality and undermine the institutional independence of the court, in this case the District Court, so as to impair its institutional integrity. Therefore the provision is invalid.
The Solicitor-General, Dr Bleby SC, who appeared for the Attorney-General, and whose submissions the Director of Public Prosecutions adopted, argued that s 9 is valid. He put that neither the function conferred by s 9(2), nor its conferral in circumstances where the form of the offence in s 50(1) remained unchanged, was such as to impair the independence of impartiality of the sentencing court, or any other aspect of its institutional integrity, such as it would cease to be a fit repository of federal judicial power.
Dr Bleby argued that the decision in Chiro established that the form of s 50(1) had changed the orthodox position – confirmed in Cheung – that it is for the sentencing judge to find the facts relevant to sentence, so long as those facts were consistent with the verdict. That was because the form of s 50 required proof of the acts of sexual exploitation alleged and required extended unanimity as to which of those acts were proved. This, he put, was a new common law principle. He argued that this demonstrates that it is within the province of Parliament to alter the rules governing the location of the fact-finding function as between judge and jury; always provided that the factual basis for sentence was consistent with the verdict. It was put that, since Chiro countenanced the resentencing of Mr Chiro himself on the basis of a fiction – that he had been found guilty upon proof of the two least serious of the acts alleged – so it was within the power of Parliament to oblige the court to sentence on the basis of a different fiction – that all acts alleged had been found proved – subject to the judge’s discretion to find otherwise. This represented a new common law approach which counsel labelled a “policy position”. It flowed from this, the argument ran, that consistency of verdict could not mean that the acts found by the jury had to be the very ones for which sentence was imposed.
Dr Bleby put that s 9 dealt with sentencing only, not a trial, and was prospective, operating on verdicts already rendered. He acknowledged that the class of persons to whom it applied was capped, but not identifiable. The class could be added to if persons charged before the amendment were found guilty and to be sentenced after the amendment. He noted that the position was comparable with any transitional provision.
It was argued that, whereas Mr Doyle’s analysis of s 9(2) involved separate consideration of the sub-paragraphs, orthodoxy required that they be read together. The phrase “is taken to be, and always to have been”, in s 9(2)(a), did not, contrary to the defendant’s argument, purport to alter or convert the jury’s verdict, which resolved only the question of guilt. It introduced a “hypothetical construct, comparing the verdict of guilt with something it was not”. It did so only as a prelude to the duty imposed in s 9(2)(a). In this context both counsel relied on the following statement of Kirby J in Silbert v Director of Public Prosecutions (WA) (2004) 217 CLR 181 at [43]:
Thirdly, that the provisions complained of are solely a legislative fiction is made clear by the use of the words ‘‘is to be taken to have been’’ (69). The Act makes it plain that the fiction is limited. It is only ‘‘for the purposes of this Act’’. It is not a ‘‘conviction’’ for larger and different purposes of criminal justice and punishment. Of its nature, a legal fiction usually involves acceptance that, in truth and for other purposes, what ‘‘is to be taken to have been’’ the case is not in fact so (70). Accordingly, the limited operation of the impugned provisions is plain. They do not oblige a court, contrary to the truth, to find facts or to adjudge a person criminally guilty on the basis of a legislative conclusion that is not judicially examinable.
That statement echoed a similar one by McHugh J in Re Macks and Others; Ex parte Saint (2000) 204 CLR 158, also cited by Dr Bleby, where in relation to a different provision McHugh J said at [115]:
By s 7(1), s 6 rights and liabilities are enforceable ‘‘as if’’ they were rights or liabilities ‘‘conferred, imposed or affected by a judgment of the Supreme Court.’’ In R v Hughes, this Court said that the use of the phrase ‘‘as if’’ was ‘‘a convenient device for reducing the verbiage of an enactment’’. But the expression always introduces a fiction or a hypothetical contrast. It deems something to be what it is not or compares it with what it is not. In s 7(1), it takes the statutory rights created by s 6 and declares that they are to be enforced in the same way as rights arising under a Supreme Court judgment. Nothing in the federal or State Constitution prohibits the legislature of South Australia from doing so. But s 7(1) does not convert those rights into a judgment. Section 7(1) is valid and, for similar reasons, s 8(2) and (3) are also valid.
(Footnote omitted)
Therefore, Dr Bleby submitted, relying on such statements, those words merely attributed a presumptive factual basis for sentence which was “necessarily within the range of factual bases consistent with the jury’s verdict of guilt”. It was put that the new sentencing rule and the presumptive basis imposed were no less consistent with the jury’s verdict than the fiction involved in the High Court in Chiro allowing sentence to proceed on the basis of the two least serious acts. Section 9(2)(a) removed the implication that the defendant was to be sentenced on the basis of acts found by the jury and imposed an alternative sentencing regime.
Dr Bleby argued that the sentencing judge was obliged to “determine which alleged acts of sexual abuse the sentencing court finds proved” as provided in s 9(2)(b). This was not a matter of discretion. The word “may” was to be seen as empowering, rather than facultative. Counsel put that the provision targeted the mischief arising from the decision in Chiro and had the effect of restoring to the sentencing court its traditional fact finding function.
He submitted that, contrary to the defendant’s argument, the class of persons to whom s 9(2) could apply was not identifiable at the time of enactment. In any event, the mere fact that it could have application to persons already before the court was not, of itself, such as to bring it within the purview of the Kable principle, citing Nicholas v The Queen (1998) 193 CLR 173. Restoration to the court of its traditional sentencing function would not become incompatible with the court’s institutional authority merely because that restoration occurred after conviction and before sentence. Rules regulating the sentencing process could always be changed between a finding of guilt and sentence.
Counsel denied that the provision purported to direct the sentencing court as to the manner and outcome of the exercise of its judicial power. It remained for the court to determine, on the criminal standard, which acts had been committed by the defendant.
Dr Bleby put that the defendant’s complaint that s 9(2)(a) purports to require a court to treat a verdict of guilt as representing findings of fact it does not, is answered by the proper construction and operation of the subsection. Sub-paragraph (a), applicable only to future sentencing tasks, imposes, it was said, no more than a rebuttable factual basis for sentencing, which is necessarily consistent with the verdict of guilt. That presumptive factual basis operates in combination with the remainder of s 9(2) simply to shift from the jury to the sentencing court the function of determining, for sentencing purposes, which acts of sexual exploitation have been proved. The sentencing law applicable to the offence is thereby prospectively altered.
Dr Bleby put that, contrary to the defendant’s argument, s 9(2) does not alter the legal meaning of the verdict, or require the court to treat the verdict as meaning something it may not mean. The verdict remains unchanged and is silent as to which acts were found proved. Therefore, the factual finding by the judge is necessarily consistent with the verdict.
Counsel compared what he put was the “requirement” recognised by Chiro – to sentence for the two least serious acts, unless the jury nominated which acts it found proved, involving treating the verdict as something it was not – with the “requirement” of s 9(2) that the court sentence on the basis that all acts were proved unless the court found otherwise. He submitted that there was an equivalence between the two “requirements”. Each position involved a fiction, but the fiction imposed by ss 9(2)(a) was merely a rebuttable presumption.
In relation to whether s 9(2)(b) was mandatory or discretionary, Dr Bleby argued that reading s 9(2)(a) and (b) together demonstrated that ss (2)(a) provided a rebuttable presumption. Furthermore, if ss (2)(a) indeed deemed a verdict to mean something it was not, then that, of itself, was good reason to construe ss (2)(b) as mandatory.
Consideration
It is instructive to ask the question what does s 9(2) do. The answer can be framed as follows. The sub-section takes a finding of guilt by a jury of a s 50(1) offence – the actus reus of which must be within the particularised acts but is not revealed by the verdict – and deems it to be a finding of guilt (sic) with respect to all the particularised acts. It does so subject to the sentencing court deciding that not all the acts alleged were found proved.
Even if it is assumed that the sentencing judge must, as opposed to may, determine which acts are proved, the provision effects a transfer or reallocation of responsibility for determining the actus reus of the offence from the jury to a combination of the Parliament and the sentencing court.
While there is no Constitutionally enshrined separation of powers at a state level, and no Constitutional right to a trial by jury in relation to a prosecution under a State law, the principle elucidated in Kable v Director of Public Prosecutions NSW (1996) 189 CLR 51 relevantly limits the ways in which a State Parliament may legislate in respect of the powers, functions or processes of a State court. The principle prevents the conferral of a function which would be incompatible with, or repugnant to, its role as a potential repository of the judicial power of the Commonwealth under s 77(iii) of the Constitution. A law which undermines or impermissibly interferes with the institutional integrity of a State court may be invalid on this basis. A State court that exercises federal judicial power must be, and appear to be, independent and impartial and the conditions necessary for the administration of justice which are required for compliance with s 77(iii) and the separation of powers at a federal level are inconsistent with some forms of external control of those courts: Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 at [63]; South Australia v Totani (2010) 242 CLR 1 at [68], [428], [443]; North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569 at [39-40].
It is not easy to identify the circumstances in which a statute will undermine, or impermissibly interfere with the institutional integrity of a State court, so as to be repugnant to the role of that court as a repository of the judicial power of the Commonwealth. In Nth Aust Aboriginal Justice the plurality, comprising French CJ, Kiefel and Bell JJ summarised at 593-595 some of the propositions flowing from Kable and subsequent cases, as follows:
1.A State legislature cannot confer upon a State court a function or power which substantially impairs its institutional integrity, and which is therefore incompatible with its role, under Ch III of the Constitution, as a repository of federal jurisdiction and as a part of the integrated Australian court syste.
2.The term “institutional integrity” applied to a court refers to its possession of the defining or essential characteristics of a court including the reality and appearance of its independence and its impartiality.
3.It is also a defining characteristic of courts that they apply procedural fairness and adhere as a general rule to the open court principle and give reasons for their decisions.
4.A State legislature cannot, consistently with Ch III, enact a law which purports to abolish the Supreme Court of the State or excludes any class of official decision, made under a law of the State, from judicial review for jurisdictional error by the Supreme Court of the State.
5.Nor can a State legislature validly enact a law which would effect an impermissible executive intrusion into the processes or decisions of a court.
6.A State legislature cannot authorise the executive to enlist a court to implement decisions of the executive in a manner incompatible with the court’s institutional integrity or which would confer on the court a function (judicial or otherwise) incompatible with the role of the court as a repository of federal jurisdiction.
7.A State legislature cannot enact a law conferring upon a judge of a State court a non-judicial function which is substantially incompatible with the functions of the court of which the judge is a member.
(Footnotes omitted)
Authorities were cited in support of each proposition. In relation to proposition number two Forge at 76 [63-64] per Gummow, Hayne and Crennan JJ; and Wainohu v New South Wales (2011) 243 CLR 181 at 208 [44] per French CJ and Kiefel J were cited. In support of proposition five International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319 and Wainohu at 210 [46] per French CJ and Kiefel J were cited.
In my opinion propositions numbered two and five have particular relevance in this context. The legislative deeming of the verdict to involve a finding of guilt of all alleged acts, even though subject to the discretion given in s 9(2)(b), seems to me to impact upon the reality and appearance of the court’s independence and impartiality. Given that it is for the jury, as an organ of the court, to determine what elements of the offence are proved, a presumption that all are proved, even overlayed by a judicial discretion to make a fresh determination of the very questions which were addressed by the jury, must detract from the reality and appearance of the court’s independence and impartiality. The same may be said in relation to proposition five. Section 9(2) has the effect of altering the course of a trial that has already been commenced and has reached a conclusion, by the interposition of a legislative form of deeming. Section 9(2) must contemplate that a determination of the jury as to which of the alleged acts are proved is transformed into a different decision made by the judge. In my view this can only occur by way of an impermissible executive intrusion into the processes and decisions of the court by the State legislature. The reallocation from the jury to a combination of the Parliament and the sentencing court of responsibility for the determination of the actus reus, amounting to a retrospective reordering of the court’s processes, amounts to a substantial interference with the judicial process such as to impair the institutional integrity of the court.
While s 9(2) will only affect a small number of cases, including the defendant’s, those will be cases where a verdict has been delivered, but a sentence not imposed. However, the force of s 9 cannot be characterised as being confined to sentence. The provision is concerned with the meaning of the verdict and, retrospectively, lays the verdict open to a fresh interpretation and one quite possibly different from the factual basis on which it originally rested. In that way it works as an alteration to the division of responsibility between judge and jury with respect to the determination of guilt and sentence, part way through the prosecution, constituting an interference in the process of determination of guilt and sentencing in particular cases.
I turn to the main arguments of Dr Bleby. He argued that it is within the province of Parliament to alter the rules concerned with location of the fact-finding function as between judge and jury. While that might be true as a broad proposition, that does not mean, of itself, that Kable principles will not be offended, especially where the alteration is targeted at a capped group of people, many of whom must be identifiable, whose trials, but not sentencing, have concluded.
Dr Bleby compared what he described as the “fiction” involved in the High Court allowing Mr Chiro’s sentence to proceed on the basis of the facts most favourable to him, with the fiction contemplated by s 9(2)(a). In effect, he argued, that the Parliament was simply replacing one fiction with another. In my view the comparison is flawed. The order made by the High Court contemplated, not that the jury’s verdict would be taken to involve a finding that only the two least serious acts were proved, but rather that – it not being known what acts were found proved – the defendant could only be sentenced on the most favourable basis. Although the distinction might be a technical one there is a substantial difference. As Mr Doyle argued, the approach which the High Court required to be taken was not a new principle which could be legislatively changed, but a solution to a problem.
Further, I do not think it is correct to put, as Dr Bleby did, that the amendment simply restores the pre-Chiro position. The structure of common law offences and indeed the offence of trafficking dealt with in Cheung, are to be contrasted with the offence created by s 50(1) of the CLCA. Traditionally, the judge did not play any role in determining what was the actus reus of an offence. The verdict identified it. The judge’s role in sentencing extended only to determining facts surrounding or concerning the actus reus. The decision in Chiro leaves untouched the traditional fact-finding role of the judge for offences not requiring extended unanimity. Offences such as s 50(1) CLCA require, as the decision in Chiro establishes, ascertainment of which underlying acts were found to be proved.
Although I could accept Dr Bleby’s argument that the wording of s 9(2)(a) merely attributes a presumptive factual basis for sentence and does not effect a legislative finding of guilt, I cannot accept the further argument that such a basis is necessarily consistent with the verdict returned, because that seems to deny altogether the force of the decision in Chiro. However, the vice I see is, not the legal fiction created by s 9(2)(a) which is always subject to ss (2)(b), but the power given to the judge by both sub-paragraphs to interpret the verdict in a way which cannot be shown to be consistent with the basis of the verdict and to impose sentence for an offence the actus reus of which it cannot be shown the jury found proved. This does, contrary to Dr Bleby’s argument, purport to alter or convert the jury’s verdict.
Conclusion
In my opinion s 9 of the Amending Act is such as to confer upon the court a function or power which substantially impairs its institutional integrity and effects an impermissible executive intrusion into the processes and decisions of the court. I find that it is invalid.
Therefore the question of law reserved should be answered as follows:
1.No. Section 9(2) of the Statutes Amendment (Attorney-General’s Portfolio) (No 2) Act 2017 (SA) is not valid.
LOVELL J:
I agree with Hinton J.
HINTON J.
Introduction
Section 50(1) of the Criminal Law Consolidation Act 1935 (SA) (the Consolidation Act) provided that an adult person who, over a period of not less than three days, commits more than one act of sexual exploitation of a particular child under the prescribed age[1] is guilty of the offence of persistent sexual exploitation of a child. On 20 January 2017 Stephen Hamra was found guilty by a jury of one count of persistent sexual exploitation of a child. The prosecution led evidence that Mr Hamra touched the complainant’s genitals, placed his penis between the complainant’s legs, caused the complainant to touch his penis and caused the complainant to perform fellatio upon him. Each of those acts was an act of sexual exploitation for the purposes of s 50(1) in that they were of a kind which could be subject of a charge of a sexual offence.[2]
[1] For the purposes of s 50(1), “prescribed age” means (a) in the case of a person who is in a position of authority in relation to the child — 18 years; (2) in any other case — 17 years; Criminal Law Consolidation Act 1935 (SA), s 50(7).
[2] Criminal Law Consolidation Act1935 (SA), s 50(2). The acts alleged constituted either indecent assaults or acts of unlawful sexual intercourse; see Criminal Law Consolidation Act1935 (SA), ss 49 and 56.
Mr Hamra has not as yet been sentenced for this offending.
On 13 September 2017 the High Court delivered its judgment in Chiro v The Queen (Chiro).[3] In Chiro it was determined that a trial judge presiding over the trial of an accused charged with persistent sexual exploitation of a child should, if the jury finds the accused guilty of the charge, ask the jury to specify which of the particularised acts of sexual exploitation the jury was agreed had been proved beyond reasonable doubt. If the trial judge did not do so he or she would not know for the purposes of sentencing the accused which acts constituting the actus reus of the offence had been proved to the satisfaction of the jury to the criminal standard.
[3] (2017) 260 CLR 425.
The judge presiding over Mr Chiro’s trial did not ask the jury which of the acts particularised had been proved to its satisfaction beyond reasonable doubt. Rather, consistent with the then understanding of fact finding relevant to sentencing a person convicted of the persistent sexual exploitation of a child, the judge determined for herself which of the acts alleged had been proven beyond reasonable doubt and sentenced Mr Chiro on that basis. Doing so resulted in a sentence imposed on a factual basis which might not have been consistent with the verdict of the jury and thus not a sentence imposed in consequence of a trial by jury. For this reason the sentence imposed was infected by error and, moreover, was manifestly excessive. The appropriate remedy, the High Court determined, was to sentence Mr Chiro on the version of the facts most favourable to him.
Mr Hamra’s trial was completed before the judgment in Chiro was handed down. The Judge presiding over Mr Hamra’s trial did not ask the jury which of the particularised acts of sexual exploitation they were agreed had been proved beyond reasonable doubt. Accordingly, applying Chiro, Mr Hamra was to be sentenced on the version of the facts most favourable to him.
On 24 October 2017 the Statutes Amendment (Attorney-General’s Portfolio) (No 2) Act 2017 (SA) (the Amendment Act) came into operation. Section 6 of the Amendment Act repealed s 50 of the Consolidation Act and substituted in its place a new offence of maintaining an unlawful sexual relationship with a child. Section 9(1) of the Amendment Act purported to validate any sentence imposed before the commencement of the Amendment Act for the offence of persistent sexual exploitation of a child where the sentencing court had proceeded in the same way as the sentencing judge in Chiro did and contrary to the correct approach as explained by the High Court. Section 9(2) dealt with the situation where a person had been found guilty of the persistent sexual exploitation of a child by a jury that was not asked by the trial judge which of the acts particularised had been proved to its satisfaction beyond reasonable doubt but not yet sentenced. In such circumstances the sentencing court was not required to sentence on the basis most favourable to the offender. Rather under s 9(2) a court was required to sentence on the basis that the jury found all acts particularised in the charge proven beyond reasonable doubt unless the sentencing judge determined which acts of sexual exploitation he or she considered had been proved beyond reasonable doubt, in which case the judge could disregard for the purposes of sentencing any acts he or she considered were not proved beyond reasonable doubt.
On 8 February 2018 the judge who presided over Mr Hamra’s trial and who eventually will sentence Mr Hamra reserved the following question for the consideration of and determination by this Court under s 350(2) of the Consolidation Act:
Is section 9(2) of the Statutes Amendment (Attorney-General’s Portfolio) (No. 2) Act 2017 (SA) valid?
Mr Hamra contends that s 9(2) is invalid and beyond the legislative power of the State in that it offends the principle first enunciated in Kable v Director of Public Prosecutions (NSW) (Kable).[4] I agree. I would answer the question reserved, “No”. My reasons follow.
The Kable principle
[4] (1996) 189 CLR 51.
The constitutional principle enunciated in Kable has undergone considerable refinement since that case was decided. In Attorney-General (NT) v Emmerson (Emmerson) the joint reasons conveniently stated the principle as follows:[5]
The principle for which Kable stands is that because the Constitution establishes an integrated court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a power or function which substantially impairs the court’s institutional integrity, and which is therefore incompatible with that court’s role as a repository of federal jurisdiction, is constitutionally invalid.
[footnotes omitted]
[5] (2014) 253 CLR 393 at [40] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); see also Knight v Victoria (2017) 261 CLR 306 at [5] (The Court); Duncan v Independent Commission Against Corruption (2015) 256 CLR 83 at [16] (French CJ, Kiefel, Bell and Keane JJ); Pollentine v Bleijie (2014) 253 CLR 629 at [42] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
Kable was a case concerning the institutional integrity of the Supreme Court of New South Wales, hence the principle as stated in the passage reproduced above is stated in terms of its application to State Supreme Courts. The principle applies, however, to all courts of the States.
The limitation on State legislative power for which the Kable principle stands arises in the first place because the legislative power conferred by the constitutions of each State, which since federation have owed their existence to s 106 of the Constitution,[6] is expressed by s 106 to be subject to the Constitution and by s 107 to be reduced to the extent of any withdrawal effected by the Constitution. In the second place, because s 77(iii) of the Constitution empowers the Federal Parliament to invest “any court of a State with federal jurisdiction”, it mandates that such body answer the constitutional description, a court of a State. The consequence of this is that a State legislature cannot confer on a court to which s 77(iii) applies a function that is incompatible with, or repugnant to, the role that s 77(iii) contemplates for such a court. Put slightly differently, the courts of the States in which the Federal Parliament may invest federal jurisdiction must at all times be “courts” within the meaning of s 77(iii). In the third place, s 77(iii) contemplates that in the exercise of the judicial power of the Commonwealth no different grade of justice is administered as between federal courts and the courts of the States.[7]
[6] New South Wales v The Commonwealth (1975) 135 CLR 337 at 372 (Barwick CJ).
[7] Condon v Pompano Pty Ltd (2013) 252 CLR 38 at [123] (Hayne, Crennan, Kiefel and Bell JJ) quoting with approval Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 103 (Gaudron J); Wainohu v New South Wales (2011) 243 CLR 181 at [45] (French CJ and Kiefel J), [105] (Gummow, Hayne, Crennan and Bell JJ).
The limitation on State legislative power must, however, accommodate the fact that the separation of powers does not apply in the states.[8] It is not the case then that a court of a State in which the judicial power of the Commonwealth may be invested must mirror in every respect a court created under Ch III of the Constitution.[9] Chapter III creates an integrated national court system, not a uniform national court system.[10] Accepting this, it follows that despite the fact that courts created under Ch III and the courts of the States may exercise the judicial power of the Commonwealth and that, in that regard, in the exercise of federal judicial power no different grade in the administration of justice is contemplated, the courts of the States are nonetheless different creatures which may perform functions that Ch III denies federal courts.[11] Consequently, the conferral of a non-judicial function upon a court of a State will not of itself be enough to trigger the Kable principle. That said, “though the existence of State courts depends on State law, and they remain State courts when co-opted into the federal Judicature, so that the Commonwealth Parliament must take such courts as it finds them”,[12] and though the courts of the States may be invested with non-judicial functions, the Kable principle emphasises that the Constitution nonetheless insists that whatever function is conferred upon a court of a State by State legislation, or howsoever the court is structured, it must not lose its essential character as a court, fit to exercise the judicial power of the Commonwealth. In Forge v Australian Securities and Investments Commission Gummow, Hayne and Crennan JJ explained:[13]
… as is recognised in Kable, Fardon v Attorney-General (Qld) and North Australian Aboriginal Legal Aid Service Inc v Bradley, the relevant principle is one which hinges upon maintenance of the defining characteristics of a “court”, or in cases concerning a Supreme Court, the defining characteristics of a State Supreme Court. It is to those characteristics that the reference to “institutional integrity” alludes. That is, if the institutional integrity of a court is distorted, it is because the body no longer exhibits in some relevant respect those defining characteristics which mark a court apart from other decision-making bodies.
[footnotes omitted]
[8] Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 65 (Brennan CJ), 79 (Dawson J), 92-94 (Toohey J), 103-104 (Gaudron J), 109-110 (McHugh J); Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [69]; Public Service Association and Professional Officers’ Association Amalgamated (NSW) v Director of PublicEmployment (2012) 250 CLR 343 at [57] (Hayne, Crennan, Kiefel and Bell JJ); Condon v Pompano Pty Ltd (2013) 252 CLR 38 at [124] (Hayne, Crennan, Kiefel and Bell JJ).
[9] Condon v Pompano Pty Ltd (2013) 252 CLR 38 at [125]-[126] (Hayne, Crennan, Kiefel and Bell JJ).
[10] Burns v Corbett (2018) 92 ALJR 423 at [20] (Kiefel CJ, Bell and Keane JJ).
[11] K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 at [153] (Gummow, Hayne, Heydon, Crennan and Kiefel JJ) (footnotes omitted).
[12] Burns v Corbett (2018) 92 ALJR 423 at [50] (Kiefel CJ, Bell and Keane JJ).
[13] (2006) 228 CLR 45 at [63].
The defining characteristics of a court are not susceptible of exhaustive statement.[14] In Condon v Pompano Pty Ltd French CJ said:[15]
[14] Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 at [64] (Gummow, Hayne and Crennan JJ); North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 at [30] (McHugh, Gummow, Hayne, Callinan and Heydon JJ).
[15] (2013) 252 CLR 38 at [67]-[68].
The “institutional integrity” of a court is said to be distorted if it no longer exhibits in some relevant aspect the defining characteristics which mark a court apart from other decision-making bodies. The defining characteristics of courts include:
• the reality and appearance of decisional independence and impartiality;
• the application of procedural fairness;
• adherence as a general rule to the open court principle;
• the provision of reasons for the courts’ decisions.
Those characteristics are not exhaustive. As Gummow, Hayne and Crennan JJ said in Forge v Australian Securities and Investments Commission:
“It is neither possible nor profitable to attempt to make some single all-embracing statement of the defining characteristics of a court. The cases concerning identification of judicial power reveal why that is so.”
The defining or essential characteristics of courts are not attributes plucked from a platonic universe of ideal forms. They are used to describe limits, deriving from Ch III of the Constitution, upon the functions which legislatures may confer upon State courts and the commands to which they may subject them. Those limits are rooted in the text and structure of the Constitution informed by the common law, which carries with it historically developed concepts of courts and the judicial function. Historically evolved as they are and requiring application in the real world, the defining characteristics of courts are not and cannot be absolutes. Decisional independence operates within the framework of the rule of law and not outside it. Procedural fairness, manifested in the requirements that the court be and appear to be impartial and that parties be heard by the court, is defined by practical judgments about its content and application which may vary according to the circumstances. Both the open court principle and the hearing rule may be qualified by public interest considerations such as the protection of sensitive information and the identities of vulnerable witnesses, including informants in criminal matters.
[footnotes omitted]
In North Australian Aboriginal Justice Agency Ltd v Northern Territory French CJ, Kiefel and Bell JJ reduced the many statements in the authorities concerning the content of the Kable principle to the following seven propositions:[16]
1. A State legislature cannot confer upon a State court a function or power which substantially impairs its institutional integrity, and which is therefore incompatible with its role, under Ch III of the Constitution, as a repository of federal jurisdiction and as a part of the integrated Australian court system.
2. The term “institutional integrity” applied to a court refers to its possession of the defining or essential characteristics of a court including the reality and appearance of its independence and its impartiality.
3. It is also a defining characteristic of courts that they apply procedural fairness and adhere as a general rule to the open court principle and give reasons for their decisions.
4. A State legislature cannot, consistently with Ch III, enact a law which purports to abolish the Supreme Court of the Stateor excludes any class of official decision, made under a law of the State, from judicial review for jurisdictional error by the Supreme Court of the State.
5. Nor can a State legislature validly enact a law which would effect an impermissible executive intrusion into the processes or decisions of a court.
6. A State legislature cannot authorise the executive to enlist a court to implement decisions of the executive in a manner incompatible with the court’s institutional integrity or which would confer on the court a function (judicial or otherwise) incompatible with the role of the court as a repository of federal jurisdiction.
7. A State legislature cannot enact a law conferring upon a judge of a State court a non-judicial function which is substantially incompatible with the functions of the court of which the judge is a member.
[footnotes omitted]
[16] (2015) 256 CLR 569 at [39]. See also, Crump v New South Wales (2012) 247 CLR 1 at [31] (French CJ).
Expanding on (1)-(3), the Kable principle prohibits a State legislature enacting a law that requires a State court to depart to a significant degree from the ordinary methods and standards of the judicial process[17] and from directing such a court in the performance of the judicial function to arrive at a particular outcome.[18]
[17] Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 98 (Toohey J), 122 (McHugh J); Pollentine v Bleijie (2014) 253 CLR 629 at [42] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319 at [54]-[56] (French CJ), [94]-[98] (Gummow and Bell JJ), [159] (Heydon J); Wainohu v New South Wales (2011) 243 CLR 181 at [68] (French CJ and Kiefel J), [104] (Gummow, Hayne, Crennan and Bell JJ).
[18] South Australia v Totani (2010) 242 CLR 1 at [82] (French CJ); International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319 at [50], [55] (French CJ).
In that same case Gageler J explained:[19]
The principle as explained in Forge operates to invalidate a State or Territory law which confers on a State or Territory court “a power or function which substantially impairs the court’s institutional integrity, and which is therefore incompatible with that court’s role as a repository of federal jurisdiction”.[20] Yet the operation of the principle is not confined to invalidating a law by reference to impairment of institutional integrity in the nature or manner of exercise of a power or function which the law confers on a court.
Cases in which the principle has been applied to hold State laws invalid have included those in which impairment of the institutional integrity of a court has been seen to arise from the nature of the task which a court was required to perform.[21] They have also included cases in which impairment of the institutional integrity of a court has been seen to arise from the nature of the incidents of a function conferred on a person, rather than a court,[22] and by reference to the position in which a court is placed within an overall legislative scheme.[23]
The cases show that a tendency to undermine public confidence in a court is indicative of a law which impairs the institutional integrity of that court.[24] They show that the character of a law as impairing the institutional integrity of a court can also be indicated by a legislative plan which builds on public confidence in that court to bolster what is essentially legislative or executive action, so as metaphorically “to cloak their work in the neutral colors of judicial action”.[25]
In Kable itself, both of those tendencies combined in legislation seen to conscript a court in a legislative plan for the procurement of the continuing imprisonment of an identified individual after the expiration of the sentence which had earlier been imposed by a court for the crime of which he was convicted. The proposition that punitive detention ordinarily exists under our system of government only as a consequence of the judicial adjudication of criminal guilt, as expounded in Lim, was reflected in the reasoning of members of the majority in concluding that the institutional integrity of the court was impaired.[26]
…
A law which confers a power or function on a court which is “repugnant to the judicial process in a fundamental degree” is a law which is for that reason alone incompatible with the institutional integrity of that court.[27] A law which gives to a court a role in a legislative scheme designed to facilitate punitive executive detention must surely be within the same category. The role is antithetical to the existence of the court as an institution for the administration of justice; repugnant in a fundamental degree to the judicial status.
Courts are defined as much by what they don’t do as by what they do and how they do it. Implicit in a tradition which reserves punitive detention presumptively to the judicial power is an understanding that punitive detention imposed in the exercise of judicial power is in consequence of adjudication by a court acting in accordance with a judicial process. Part of what sets courts apart from other institutions within our system of government is that they do not participate in a punitive deprivation of liberty by another arm of government.
[19] North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569 at [122]-[125], [128]-[129].
[20] Attorney-General (NT) v Emmerson (2014) 253 CLR 393 at 424 [40].
[21] Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 at 76 [63], explaining Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319 at 367 [98], 379 [140], 386 [159].
[22] Wainohu v New South Wales (2011) 243 CLR 181 at 208-210 [44]-[47].
[23] South Australia v Totani (2010) 242 CLR 1 at 52 [82], 67 [149], 92-93 [236], 173 [481].
[24] Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 617-618 [102].
[25] South Australia v Totani (2010) 242 CLR 1 at 172 [479].
[26] Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 106-107, 121-122, 131-132. See also Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 611 [77].
[27] International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319 at 379 [140].
From the above it is clear that the Kable principle is a functional principle necessitating an inquiry into the legal and practical operation of the impugned law.[28]
[28] Kuczborski v Queensland (2014) 254 CLR 51 at [231] (Crennan, Kiefel, Gageler and Keane JJ); Wainohu v New South Wales (2011) 243 CLR 181 at [107] (Gummow, Hayne, Crennan and Bell JJ); South Australia v Totani (2010) 242 CLR 1 at [74] (French CJ), [213] (Hayne J); North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 at [14] (Gleeson CJ). Further, constitutional limitations or prohibitions are tested by reference to the practical operation of a law, not their form: Cole v Whitfield (1988) 165 CLR 360 at 401 (The Court).
In the present case Mr Hamra contends that s 9(2) of the Amending Act is repugnant to the judicial process in a fundamental degree. That repugnancy is the result of the combined effect of four factors. First, the section applies to a closed and limited class of individuals. Second, the deemed meaning that s 9(2)(a) attributes to a jury verdict designedly and directly interferes with an organ of the court and thereby with the adjudication and punishment of guilt. Third, if s 9(2)(b) confers a discretion on a sentencing judge, it is open to the judge not to exercise the discretion with the consequence that a person to whom s 9(2) applies is to be sentenced in accordance with the legislatively directed meaning attributed to the verdict. Fourth, even if the third contention is incorrect and a sentencing court must exercise the power conferred by s 9(2)(b), the court is nonetheless required to put to one side all consideration of the jury’s findings. In this regard, insofar as it is possible that the jury was satisfied that less acts of sexual exploitation were proved to the criminal standard than those which the sentencing judge considers have been proven to that standard, the court engages in a process of self-contradiction. I return to these contentions later in these reasons. Before doing so, however, it is necessary, as indicated, to consider the legal and practical effect of s 9(2). That task commences with the construction of the section.
The construction exercise
The construction of a statutory provision begins with the text and ends with the text.[29] In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue Hayne, Heydon, Crennan and Kiefel JJ said:[30]
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
[footnotes omitted]
[29] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ); Thiess v Collector of Customs (2014) 250 CLR 664 at [22] (French CJ, Hayne, Kiefel, Gageler and Keane JJ).
[30] (2009) 239 CLR 27 at [47].
In Certain Lloyd’s Underwriters v Cross French CJ and Hayne J explained that consideration of the context and purpose of a statute was important as doing so ensured that the construction afforded the relevant provision was “consistent with the language and purpose of all the provisions of the statute”.[31] The purpose of a statute or particular provisions is divined from express statements of purpose contained in the statute or by inference from the text and structure of the statute.[32] In this State extrinsic materials may also be resorted to for the purposes of determining the mischief that a legislative provision was intended to address, and, in the light thereof, the meaning of the provision under consideration.[33] That said, the common law does not permit resort to “a ministerial statement, about the effect of a law in force at the time of the statement, as an aid to the interpretation of that law”.[34] Staying with purpose, French CJ and Hayne J added:[35]
[31] (2012) 248 CLR 378 at [24] (emphasis in original) citing Taylor v Public Service Board (NSW) (1976) 137 CLR 208 at 213 (Barwick CJ).
[32] Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378 at [25] (French CJ and Hayne J).
[33] K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 at [51] (French CJ); Australian Education Union v Departmentof Education and Children’s Services (2012) 248 CLR 1 at [33] (French CJ, Hayne, Kiefel and Bell JJ); Hoare v The Queen (1989) 167 CLR 348 at 360-361 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ).
[34] Australian Education Union v Departmentof Education and Children’s Services (2012) 248 CLR 1 at [33] (French CJ, Hayne, Kiefel and Bell JJ).
[35] Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378 at [25]-[26].
Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in others, to recognise that to speak of legislative “intention” is to use a metaphor. Use of that metaphor must not mislead. “[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have” (emphasis added). And as the plurality went on to say in Project Blue Sky:
“Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”
To similar effect, the majority in Lacey v Attorney-General (Qld) said:
“Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts.”
(Footnote omitted.)
The search for legal meaning involves application of the processes of statutory construction. The identification of statutory purpose and legislative intention is the product of those processes, not the discovery of some subjective purpose or intention.
A second and not unrelated danger that must be avoided in identifying a statute’s purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions. As Spigelman CJ, writing extra-curially, correctly said:
“Real issues of judicial legitimacy can be raised by judges determining the purpose or purposes of Parliamentary legislation. It is all too easy for the identification of purpose to be driven by what the particular judge regards as the desirable result in a specific case.”
(Emphasis added.)
And as the plurality said in Australian Education Union v Department of Education and Children’s Services:
“In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose.”
[footnotes omitted]
In this case four further principles need be borne in mind. First, s 22(1) of the Acts Interpretation Act 1915 (SA) commands that where a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred. Second, s 22A(1) of the Acts Interpretation Act 1915 (SA) commands that an enactment and every provision of an enactment is to be construed so as not to exceed the legislative power of the State. The rule of construction is that the Parliament intends “to enact legislation that is valid and not legislation that is invalid”.[36] Third, any enactment that exceeds the legislative power of the State is nevertheless a valid enactment to the extent which it does not exceed that power.[37] Fourth, statutes should be construed, where constructional choices are open, so that they do not encroach, or encroach as little as possible, upon fundamental rights and freedoms at common law.[38] Here the cautionary words of Gageler and Keane JJ in Lee v NSW Crime Commission should always be kept in mind:[39]
Application of the principle of construction is not confined to the protection of rights, freedoms or immunities that are hard-edged, of long standing or recognised and enforceable or otherwise protected at common law. The principle extends to the protection of fundamental principles and systemic values. The principle ought not, however, to be extended beyond its rationale: it exists to protect from inadvertent and collateral alteration rights, freedoms, immunities, principles and values that are important within our system of representative and responsible government under the rule of law; it does not exist to shield those rights, freedoms, immunities, principles and values from being specifically affected in the pursuit of clearly identified legislative objects by means within the constitutional competence of the enacting legislature.
The principle of construction is fulfilled in accordance with its rationale where the objects or terms or context of legislation make plain that the legislature has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a legislative determination that the right, freedom or immunity is to be abrogated or curtailed. The principle at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked. The simple reason is that “[i]t is of little assistance, in endeavouring to work out the meaning of parts of [a legislative] scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve”.
[footnote omitted]
[36] Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629 at [28] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).
[37] Acts Interpretation Act 1915 (SA), s 22A(2).
[38] Potter v Minahan (1908) 7 CLR 277 at 304 (O’Connor J); Bropho v WesternAustralia (1990) 171 CLR 1 at 18 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ); Coco v The Queen (1994) 179 CLR 427 at 436-437 (Mason CJ, Brennan, Gaudron and McHugh JJ); Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [58] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ); Lee v NSW Crime Commission (2013) 251 CLR 196 at [307]-[314] (Gageler and Keane JJ).
[39] (2013) 251 CLR 196 at [313]-[314].
I turn to the mischief that s 9(2) was intended to address.
The mischief s 9(2) was intended to address — Chiro
The Statutes Amendment (Attorney-General’s Portfolio) (No 2) Bill 2017 (SA) was introduced in the House of Assembly on 9 August 2017. The Bill as introduced did not include what became Part 4 of the Amending Act which includes s 9. Rather amendments to the Bill to insert Part 4 were moved by the government in the Legislative Council on 19 October 2017.[40] The debate on the motion that the Bill as amended be read a second time makes plain that Part 4 was intended to address the consequences of the High Court’s decision in Chiro. The note appearing in the Amending Act immediately following s 9(3) also makes plain the mischief that s 9 of the Amending Act was intended to address. The note states:
Except as otherwise provided in subsection (3), this section negates the effect of the determination of the High Court in Chiro v The Queen [2017] HCA 37 (13 September 2017).
[40] South Australia, Parliamentary Debates, Legislative Council, 19 October 2017 at 8029.
The note does not form part of the Amending Act.[41] Nonetheless, it may be treated as extrinsic material to which regard may be had for the purposes of discerning the mischief that s 9 was intended to address in accordance with the principle enunciated above. As the mischief to which s 9 was aimed was the abolition of the effect of Chiro, a close analysis of the judgments in that case is warranted.
[41] Acts Interpretation Act 1915 (SA), s 19(2). No express provision to the contrary was included in the Statutes Amendment (Attorney-General's Portfolio) (No 2) Act 2017 (SA).
As mentioned, Mr Chiro, like Mr Hamra, was convicted of one count of the persistent sexual exploitation of a child contrary to s 50(1) of the Consolidation Act.[42] Mr Chiro was a schoolteacher.[43] The complainant was one of his students. The offending commenced with a kiss described as “a quick peck on the lips” when the complainant was in year 9 and, over time, became more intimate progressing to include the digital penetration of the complainant by Mr Chiro and the complainant masturbating and fellating him.[44] The particulars of the offence as charged alleged some six unlawful sexual acts;[45] kissing, touching on the vagina, touching on the breasts, digital penetration, causing the complainant to touch his penis and the insertion of his penis into the complainant’s mouth. These acts amounted to either indecent assaults or acts of unlawful sexual intercourse.[46]
[42] Chiro v The Queen (2017) 260 CLR 425 at [2] (Kiefel CJ, Keane and Nettle JJ).
[43] Chiro v The Queen (2017) 260 CLR 425 at [2] (Kiefel CJ, Keane and Nettle JJ).
[44] Chiro v The Queen (2017) 260 CLR 425 at [2] (Kiefel CJ, Keane and Nettle JJ).
[45] Chiro v The Queen (2017) 260 CLR 425 at [3] (Kiefel CJ, Keane and Nettle JJ); Criminal Law Consolidation Act 1935 (SA), ss 50(2) and (12).
[46] Chiro v The Queen (2017) 260 CLR 425 at [7] (Kiefel CJ, Keane and Nettle JJ); Criminal Law Consolidation Act 1935 (SA), ss 49 and 56.
At Mr Chiro’s trial the trial judge in her summing up directed the jury, consistent with the judgments of this Court in R v Little[47] and R v M, BJ,[48] that it could not convict Mr Chiro unless the members of the jury were agreed that the same two or more acts of sexual exploitation had been proved beyond reasonable doubt. It would appear that this direction and the judge’s directions on the particularised acts of sexual exploitation as amounting to either indecent assaults or acts of unlawful sexual intercourse, prompted the jury to ask whether it would be required to return verdicts on the particular offences. Defence counsel submitted that a special verdict should be taken. Following this Court’s judgment in R v N, SH the trial judge declined and a general verdict was taken.[49] Mr Chiro was convicted. Thereafter in sentencing Mr Chiro the judge held that she was satisfied beyond reasonable doubt that he had committed each and every one of the acts of sexual exploitation in relation to which the complainant gave evidence and proceeded to sentence him on that basis.
[47] (2015) 123 SASR 414.
[48] (2011) 110 SASR 1.
[49] [2010] SASCFC 74.
On appeal to the Court of Criminal Appeal Mr Chiro argued, amongst other things, that his conviction was void for uncertainty, the uncertainty being that in the absence of a special verdict the Court could not determine which acts of sexual exploitation the jury had determined were proved beyond reasonable doubt. Further, and in the alternative, Mr Chiro appealed against his sentence. He submitted that, not knowing what acts of sexual exploitation the jury had agreed were proved beyond reasonable doubt, he should be sentenced on the basis of his having committed the least grave acts.
The Court of Criminal Appeal dismissed both the appeal against conviction and the appeal against sentence. For present purposes it is unnecessary to set out the Court of Criminal Appeal’s reasons for the dismissal of those appeals save that in relation to the appeal against sentence the Court considered that the usual rules for the determination of the factual basis for sentence applied and thus it was for the trial judge to determine which acts of sexual exploitation had been proved beyond reasonable doubt.
Mr Chiro was granted special leave to appeal against both his conviction and sentence. The arguments advanced in the High Court were not dissimilar to those made before the Court of Criminal Appeal. It is unnecessary to deal with the High Court’s dismissal of the appeal against conviction save to observe that the Court rejected the contention that the trial judge should have taken a special verdict. As to the appeal against sentence, it was argued that since the trial judge did not take a special verdict there was a real chance that Mr Chiro had been sentenced on “the basis of having committed a greater number of and more serious acts of sexual exploitation than the jury were satisfied were proved beyond reasonable doubt”.[50] In reply the Crown submitted, consistent with the approach of the Court of Criminal Appeal, that “just as in any other case where it cannot be determined from a verdict whether a jury has found one way or the other as to facts that may be pertinent to sentencing, it was correct for the judge to find those facts herself”.[51]
[50] Chiro v The Queen (2017) 260 CLR 425 at [26] (Kiefel CJ, Keane and Nettle JJ).
[51] Chiro v The Queen (2017) 260 CLR 425 at [27] (Kiefel CJ, Keane and Nettle JJ).
Here it may be observed that the Crown relied upon the authority of Cheung v The Queen (Cheung).[52] Relevantly, in Cheung Gleeson CJ, Gummow and Hayne JJ said:[53]
When an accused person is tried upon indictment before a judge and jury, the role of the jury is to decide whether the accused is guilty or not guilty of the charge or charges laid in the indictment. That involves determining the issue or issues joined between the prosecution and the accused. Such issue or issues are defined by the terms of the indictment, and by the plea. If the accused is found guilty, then it is the responsibility of the judge to determine the appropriate sentence. That will normally involve a discretionary decision, subject to any statutory constraints such as a specified maximum penalty.
The decision as to guilt of an offence is for the jury. The decision as to the degree of culpability of the offender’s conduct, save to the extent to which it constitutes an element of the offence charged, is for the sentencing judge. If, and in so far 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.
[52] (2001) 209 CLR 1.
[53] Cheung v The Queen (2001) 209 CLR 1 at [4]-[5].
Gleeson CJ, Gummow and Hayne JJ also referred, with approval, to the New South Wales Court of Appeal’s summary of principles in R v Isaacs.[54] They said:[55]
In Isaacs the Court of Criminal Appeal summarised certain well-established principles concerning the law and practice of sentencing in New South Wales as follows (omitting references to authority):
“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 …
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 …
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 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 …”
[footnote omitted]
[54] (1997) 41 NSWLR 374 at 377-378 (Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ).
[55] Cheung v The Queen (2001) 209 CLR 1 at [14].
Whilst Kiefel, Bell and Keane JJ observed:[119]
In Cheng v The Queen, Gaudron J observed that to emphasise trial by jury as a protection of the liberty of the individual is apt to overlook the importance of the institution of the jury to the administration of criminal justice more generally. Her Honour’s observation echoed Deane J’s analysis in Brown. His Honour emphasised the benefit to the community of having the determination of guilt in serious cases made by a representative body of ordinary and anonymous citizens. This view was adopted by the joint reasons in Katsuno v The Queen.
It is not to the point to observe, as the applicant did, that the great majority of criminal cases are determined by courts of summary jurisdiction. Public interest in, and concern about, the administration of criminal justice is commonly focused on the prosecution of serious crime in the higher courts. The verdict of the jury has unique legitimacy. As the Director submitted, the determination of guilt by jury protects the courts from controversy and secures community support for, and trust in, the administration of criminal justice. As the Director also submitted, were the command of s 80 subject to exception based on a court’s assessment of the “interests of justice” criterion, it is likely that its application would vary between individual judges and, perhaps, between jurisdictions.
[footnotes omitted]
[119] (2016) 258 CLR 203 at [116]-[117].
Gageler J referred to the history of the jury in New South Wales as “part of a larger struggle for self-government”.[120] He added:[121]
It was much less about the civil right of a member of the populace to be tried by jury than it was about the political right of a section or enlarged section of the populace to sit on a jury. It took place against the background of recognition by supporters and opponents of the introduction and expansion of trial by jury alike of the insight to which Alexis de Tocqueville gave contemporaneous expression when he wrote that the institution of the jury “places the people, or at least a class of the people in the judgment seat” and “in fact, therefore, places the direction of society in the hands of the people, or of the class from which the juries are taken”. De Tocqueville’s insight was taken up as a theme of the first major academic work on trial by jury, published soon afterwards in the United Kingdom by William Forsyth.
Writing extra-judicially on the topic of the jury system in Australia in 1936, Evatt J referred to the study by Forsyth. He said that “[i]t would seem that in modern times the jury system is to be regarded as an essential feature of real democracy” and that “[t]he mere right (or duty) to put a piece of paper in a ballot-box once every three years is not proof of the reality of self-government”.
Lord Devlin gave expression to the same understanding thirty years later when he described the jury within the common law tradition as a “little parliament” serving to ensure a measure of democratic participation, and therefore democratic legitimacy, not in the making of criminal law but in its administration. Lord Devlin later went on to develop that theme:
“The jury is the means by which the people play a direct part in the application of the law. It is a contributory part. The interrelation between judge and jury, slowly and carefully worried out over several hundred years, secures that the verdict will not be demagogic; it will not be the simple uninhibited popular reaction. But it also secures that the law will not be applied in a way that affronts the conscience of the common man. Constitutionally it is an invaluable achievement that popular consent should be at the root not only of the making but also of the application of the law. It is one of the significant causes of our political stability.”
Lord Devlin’s explanation of the democratic role of the jury was described in a publication prepared under the auspices of the Australian Institute of Judicial Administration as identifying “the central themes which underpin jury ideology”: “the jury involves community participation and lay involvement; the verdict arises out of a democratic understanding between judge and jury, beyond populism and demagogy; the jury ensures the application of the law consonant with the community conscience; the democracy of the legislative process is maintained in its courtroom application through the jury; and this protects the body politic”. The extent to which that deep-seated ideology conforms to contemporary practice is not the present concern. The present concern is that the applicant’s
argument fails to accommodate it at all.
[footnotes omitted]
[120] (2016) 258 CLR 203 at [129].
[121] (2016) 258 CLR 203 at [129]-[132].
Nettle and Gaudron JJ referred to s 80 as imposing a “limitation on judicial power”[122] and quoted Brennan J in Brown v The Queen where he referred to s 80 as entrenching “an essential constituent of any court exercising jurisdiction to try a person charged on indictment with a federal offence”.[123]
[122] (2016) 258 CLR 203 at [174] (footnote omitted).
[123] (1986) 160 CLR 171 at 197.
In this State the availability of trial by jury for felonies and now indictable offences reflects a decision made in the earliest days of the province of South Australia regarding the organisation of government and the exercise of power that continues to be adhered to.[124] The participation of ordinary members of the community in the administration of criminal justice enhances our democracy, ensures respect for the rule of law and legitimises the judicial process and the exercise of judicial power.
[124] The first grand and petty juries were empanelled in this State in 1837; see R M Hague, Hague's History of the Law in South Australia 1837-1867 (Barr Smith Press: Adelaide, 2005).
Section 9(2) alters the nature of the participation of the community in the administration of justice. In relation to those proceedings to which s 9(2) applies, the community ceases to have any involvement in the determination of the particular acts of sexual exploitation for which the offender is to be punished.
The parties’ submissions
At the heart of counsel for Mr Hamra’s submissions was the contention that s 9(2) worked a significant and essentially retrospective alteration to the manner and outcome of the trial of a defendant to whom it applied. At trial it was for the jury to determine which acts of sexual exploitation were proved beyond reasonable doubt. That finding, manifest in the jury’s verdict, was important to sentencing. In this regard, counsel referred to the twin common law sentencing principles that punishment imposed in consequence of a jury convicting a defendant must be consistent with the jury’s verdict, and, cannot exceed what is proportionate to that offending and only that offending. In Chiro, he submitted, the joint reasons dealt with the question of how to apply these principles where the legal content of a general verdict was not necessarily congruent with the legal content of the questions submitted to the jury for determination. For the participants in the joint judgment the question was not whether the common law principles had been abrogated, but how to remain faithful to them when confronted by an offence in relation to which a finding of guilt could be made upon proof to the requisite standard of less than all acts of sexual exploitation particularised. Section 9(2) presented a legislatively imposed method of dealing with the same issue. That is to say, both s 9(2) and the judgment in Chiro operated within the framework of the two common law sentencing principles to which reference has already been made.
The problem with s 9(2) was, however, that the jury had already performed the task of determining for which acts of sexual exploitation a defendant was to be punished. Despite this s 9(2)(a) was a direction to the sentencing court to treat the verdict as having a particular legal content irrespective of its true legal content. Section 9(2)(a) did not simply identify a factum upon which a particular consequence operated, it dictated an answer to the question which the jury had already answered.
Counsel for Mr Hamra conceded that the directed answer contained in s 9(2)(a) may equate with the jury’s conclusion, but he emphasised that s 9(2)(a) was not concerned with whether the directed answer did or did not so equate.
Next counsel for Mr Hamra submitted that the discretion vested in the sentencing court by s 9(2)(b) did not qualify or undo the legislative alteration to the trial and sentencing process for two reasons; first, the deeming effect of s 9(2)(a) will only be undone to the extent that the sentencing court finds acts not proved beyond reasonable doubt. That outcome may still differ from the conclusion arrived at by the jury. Here it was submitted that by conditioning the exercise of any discretion in that way, there is yet further alteration to the judicial process. Second, the entire process is discretionary. Thus, for those defendants affected by s 9(2) one aspect of the trial by jury for which they elected is altered and substituted for a conditional and discretionary decision-making process by a different organ of the court. That substituted process results in the defendant being sentenced on a different basis to that which Chiro holds applicable unless the sentencing judge decides to give effect to his or her own determination by disregarding acts of sexual exploitation not found proved. The process results in the defendant being sentenced in accordance with a different regime to that which applied when the trial was commenced and concluded, and punished for acts of sexual exploitation not found proved to the satisfaction of the jury to the criminal standard. Indeed, the effect may be to result in punishment for acts not found proved by either the jury or the sentencing judge.
From the sentencing court’s viewpoint, the judge is required to decide whether and to what extent to give effect to a legislative judgment or, alternately, to his or her own judgment notwithstanding that the judge had conducted a trial on the basis that the jury was to determine guilt and, in doing so, the acts of sexual exploitation in relation to which the defendant was to be punished. This placed the judge in an invidious position of deciding between two alternatives both of which would contradict the conduct of the trial.
Counsel then turned to the authorities and, in particular, those where the Kable principle had been successfully invoked to render State legislation invalid. By analogy with the circumstances in Wainohu v New South Wales (Wainohu), he submitted that s 9(2)(a) operated no differently in effect to s 13(2) of the Crimes (Criminal Organisations Control) Act 2009 (NSW), in that it permitted the sentencing court to make orders based upon deemed factual conclusions for which there were no reasons provided.[125] Referring to International Finance Trust Co Ltd v NSW Crime Commission (International Finance) he submitted that the fact that s 9(2) provided for the possibility of an adjudicative hearing conducted in the normal way was not necessarily enough to save the provision.[126] Further, the vice in International Finance was the obligation to proceed ex parte on the application of the executive. In the present case counsel attempted to draw a parallel with International Finance in the direction contained in s 9(2)(a). Turning to South Australia v Totani (Totani) he submitted that similar to a declaration made under s 14(1) of the Serious and Organised Crime (Control) Act 2008 (SA), s 9(2)(a) required a sentencing court to act upon deemed findings of fact that were judicially unexaminable.[127] Whilst the legislature can choose any factum it wishes as triggering a legislative consequence, the choice of the factum cannot be one that subjects a court in reality or appearance to direction from the legislature as to the content of judicial decisions. In the present case the legislative deeming required the court to give the jury’s verdict a meaning or content that might be contrary to the actual conclusion arrived at by the jury.
[125] (2011) 243 CLR 181.
[126] (2009) 240 CLR 319.
[127] (2010) 242 CLR 1.
Counsel for Mr Hamra submitted that his argument did not fail if, contrary to his submission, s 9(2)(b) was not discretionary but imposed a duty on the sentencing court. It remained the case, he submitted, that s 9(2) impermissibly interfered with the judicial function. The jury had made findings on the question that the sentencing court was subsequently required by the legislature to inquire into afresh (assuming s 9(2)(b) imposed a duty) from a starting point of attributing to the verdict a content or meaning which might not accord with the jury’s conclusions. In this regard s 9(2) restricted a “court’s free and independent determination of an issue of fact in the litigation in such a way as to amount to an unconstitutional interference with the exercise of judicial power”.[128] In this connection counsel submitted that Silbert v Director of Public Prosecutions (WA) (Silbert)[129] was distinguishable in that the factum chosen, the death or absconding of the respondent, was not false and not a prior judicial act to which was attributed a deemed meaning, and the consequence attached to that factum did not amount to an interference with a prior judicial act. By contrast in the present case the sentencing court is, subject to s 9(2)(b), required to impose punishment on the basis of a legislatively deemed finding of fact which is at odds with the fundamentals of the judicial process.
[128] Anthony Mason, ‘Comment’ (2008) 30 Sydney Law Review 95 at 96.
[129] (2004) 217 CLR 181.
The thrust of the Solicitor-General’s submission was that s 9(2) was a sentencing rule that left the verdict unaffected. It was, in effect, a rule of evidence and procedure that sought to return fact finding in sentencing to the sentencing judge. That the outcome may be a conclusion at odds with the jury verdict was not offensive. The order made by the High Court in disposing of Chiro could similarly be criticised. In either instance the defendant is punished for acts which the jury did not necessarily agree were proved. A “process simply designed to avoid manifest excess, is equally and oppositely amenable to engineering manifest inadequacy”, he submitted. In this connection he added that consistency with the verdict could not be taken as meaning consistency with the acts found proved. He emphasised that s 9(2) was directed to remedying the problem highlighted in Chiro by merely removing the implication arising from s 50(1) of the Consolidation Act that a person can only be sentenced on the basis of acts found proved by the jury.
More particularly, the Solicitor-General submitted that s 9(2)(b) was beneficial legislation and, consequently, should be construed as mandatory in its application. For the reasons I have already given, I agree. Accepting this, when s 9(2)(a) is read in the context of s 9(2)(b) the consequent procedure did not result in a directed outcome. Rather it provided for a process bearing all the hallmarks of the ordinary judicial process. That it was of limited application was the consequence of its transitional nature.
The Solicitor-General accepted that the sentencing task is tethered to the verdict in that those aspects of the proceeding resolved by the verdict (or where applicable the plea) supply the boundary that governs sentencing. But matters not so resolved remain amenable to modification. In this regard he appeared to treat the verdict as not speaking to the acts of sexual exploitation which the jury found proved. At this level of abstraction, s 9(2) did not interfere with the verdict and, accordingly, there was no basis for concluding that the District Court would cease to be a fit repository for the exercise of federal judicial power. All it was required to do was to determine the factual basis for sentence (consistent with the jury’s verdict), where the actus reus is one in respect of which the jury was required (for determining guilt) to be unanimous. It was submitted that Chiro itself stood as authority for the proposition that the Parliament was competent to designate as between judge and jury the fact-finding functions relevant to the determination of guilt and sentence.
Does s 9(2) offend the Kable principle?
The question is whether s 9(2) requires or empowers the District Court to do something that is substantially inconsistent or incompatible with the continuing subsistence in every aspect of that Court’s judicial role, of its defining characteristics as a court. In my view, construing s 9(2)(b) as I have, the operation of s 9(2)(a) does not result in a directed outcome. Section 9(2)(a) operates as a starting point that will always be ameliorated by s 9(2)(b) if less than all acts of sexual exploitation particularised are not proven to the satisfaction of the sentencing court beyond reasonable doubt. Further, although as a matter of practical reality s 9(2) will likely only apply to a small number of people, it is a law of general application that is capable of having an ongoing application. Its likely limited application does not result in the sentencing court performing a function that is repugnant to or incompatible with the institutional integrity of that court.
In my view critical to the resolution of the question posed in the paragraph immediately above and the question reserved is the issue of whether s 9(2) merely takes the jury’s verdict as a factum triggering a future consequence, or, impermissibly interferes with the adjudgment and punishment of criminal guilt by the District Court such as to offend the Kable principle.
In Australian Building Construction Employees’ and Builders Labourers’ Federation v The Commonwealth Gibbs CJ, Mason, Brennan Deane and Dawson JJ said:[130]
It is well established that Parliament may legislate so as to affect and alter rights in issue in pending litigation without interfering with the exercise of judicial power in a way that is inconsistent with the Constitution.
“Chapter III contains no prohibition, express or implied, that rights in issue in legal proceedings shall not be the subject of legislative declaration or action.”
(Reg. v. Humby; Ex parte Rooney.) So, in Nelungaloo Pty. Ltd. v. The Commonwealth, the validity of the Wheat Industry Stabilization Act (No. 2) 1946 (Cth) was upheld, notwithstanding that the Act validated an order for the acquisition of wheat, the validity of which was in issue in the proceedings.
It is otherwise when the legislation in question interferes with the judicial process itself, rather than with the substantive rights which are at issue in the proceedings. Liyanage v. The Queen was such a case where the legislation attempted to circumscribe the judicial process on the trial of particular prisoners charged with particular offences on a particular occasion and to affect the way in which judicial discretion as to sentence was to be exercised so as to enhance the punishment of those prisoners.
[footnotes omitted]
[130] (1986) 161 CLR 88 at 96.
Australian Education Union v Fair Work Australia (AEU)[131] was a case where it was contended that amendments to the Workplace Relations Act 1996 (Cth) impermissibly interfered with the exercise of judicial power in that the amendments sought to overcome the holding in Australian Education Union v Lawler (Lawler).[132] French CJ, Crennan and Kiefel JJ commenced their treatment of the issue by noting that the Parliament of the Commonwealth cannot direct the courts as to the manner and outcome of the exercise of judicial power.[133] The same limitation applies with respect to State Parliaments.[134] Their Honours then referred to Quick and Garran and the excerpt from Thomas Cooley’s Constitutional Limitations to which they referred. They said:[135]
The AEU relied upon passages in The Annotated Constitution of the Australian Commonwealth by Quick and Garran in which the authors referred to Thomas Cooley’s Constitutional Limitations written in 1868, and the following passage from that text:
“But the legislative action cannot be made to retroact upon past controversies, and to reverse decisions which the courts, in the exercise of their undoubted authority, have made; for this would not only be the exercise of judicial power, but it would be its exercise in the most objectionable and offensive form, since the legislature would in effect sit as a court of review to which parties might appeal when dissatisfied with the rulings of the courts.”
(Citation omitted.)
Quick and Garran themselves wrote:
“The simple rule would seem to be that, just as the legislature cannot directly reverse the judgment of the court, so it cannot, by a declaratory law, affect the rights of the parties in whose case the judgment was given.”
The last proposition would be too broad if understood as stating a simple test for the validity of legislation affecting pending or completed litigation. We agree with Gummow, Hayne and Bell JJ that it did not. If a court exercising federal jurisdiction makes a decision which involves the formulation of a common law principle or the construction of a statute, the Parliament of the Commonwealth can, if the subject matter be within its constitutional competence, pass an enactment which changes the law as declared by the court. Moreover, such an enactment may be expressed so as to make a change in the law with deemed operation from a date prior to the date of its enactment. Section 26A was such a law. Its constitutional vice was said to lie in its effect upon the consequences of the orders made by the Full Court of the Federal Court in Lawler.
[footnotes omitted]
[131] (2012) 246 CLR 117.
[132] (2008) 169 FCR 327.
[133] Australian Education Union v Fair Work Australia (2012) 246 CLR 117 at [48].
[134] Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 at [39] (Gummow, Hayne, Heydon and Kiefel JJ).
[135] Australian Education Union v Fair Work Australia (2012) 246 CLR 117 at [50].
It is to be noted that the propositions stated by Cooley are not disputed by French CJ, Crennan and Kiefel JJ, rather the breadth of Quick and Garran’s statement of the “simple rule” is questioned. In AEU the impugned section did not decide the question of the validity of the Australian Principals Federation’s purported registration. Rather, invalidity as had been judicially determined in Lawler was accepted by the provision.[136] The Parliament took that invalidity and gave to it a new consequence.
[136] (2008) 169 FCR 327.
The decision of the United States Supreme Court in Plaut v Spendthrift Farm Inc as referred to by French CJ, Crennan and Kiefel JJ stands in contrast.[137] There the impugned legislation mandated the reinstatement of claims previously dismissed on the basis that they were out of time. French CJ, Crennan and Kiefel JJ observed:[138]
That case concerned legislation which mandated the reinstatement by federal courts of claims dismissed because they had not been brought within a statutory limitation period subsequently extended by the same legislation. The legislation was directed at judicial proceedings. Scalia J, delivering the opinion of the majority, said:
“Having achieved finality … a judicial decision becomes the last word of the judicial department with regard to a particular case or controversy, and Congress may not declare by retroactive legislation that the law applicable to that very case was something other than what the courts said it was.”
(Emphasis in original.) Putting to one side consideration of differences in constitutional context, Plaut is of no assistance to the AEU. It concerned a statute directed to the reinstatement of proceedings which had been dismissed. It did not enunciate a more general rule that any legislation affecting the underlying foundation of a judicial decision is invalid. That much was made clear in relation to prospective relief under an existing injunction by the later decision of the Supreme Court in Miller v Frenchin which the Court said that:
“when Congress changes the law underlying a judgment awarding prospective relief, that relief is no longer enforceable to the extent it is inconsistent with the new law. Although the remedial injunction here is a ‘final judgment’ for purposes of appeal, it is not the ‘last word of the judicial department’. The provision of prospective relief is subject to the continuing supervisory jurisdiction of the court, and therefore may be altered according to subsequent changes in the law.”
(Citation omitted.)
[footnotes omitted]
[137] 514 US 211 (1995).
[138] Australian Education Union v Fair Work Australia (2012) 246 CLR 117 at [51].
In their judgment Gummow, Hayne and Bell JJ stated that it is important in this area of discourse to “consider whether or to what extent the impugned law amounts to a legislative direction about how specific litigation should be decided”.[139] They continued:[140]
That is, as one author has written, a balance must be struck between the recognition that the Parliament may change the law in a way that has an effect on pending proceedings (a proposition that has been described as “the changed law rule”) and the recognition that the Parliament cannot direct the courts as to the conclusions they should reach in the exercise of their jurisdiction (a proposition that has been described as “the direction principle”). But again no decision is called for in this case about how such a balance should be struck in respect of legislation that affects pending litigation.
[footnotes omitted]
[139] Australian Education Union v Fair Work Australia (2012) 246 CLR 117 at [87].
[140] Australian Education Union v Fair Work Australia (2012) 246 CLR 117 at [87].
The fact that the impugned provision in AEU did not dissolve or reverse judicial orders was significant to the conclusion.
In a criminal prosecution the controversy between the state and the individual is defined by the charges. The judicial power is engaged in the resolution of that controversy in the conduct of the trial of the charge and, if the accused is convicted, the imposition of punishment. These sequential steps are, as I have attempted to demonstrate, inextricably linked — the individual can only be punished for the offences of which he or she was found guilty. As the Solicitor-General said, a trial resulting in a conviction and the consequent imposition of punishment are tethered.
In Mr Hamra’s case the judicial power has been exercised to quell the first stage of the controversy. The jury verdict was accepted by the trial judge and has been entered in judgment. The result of the exercise of judicial power was that Mr Hamra was found guilty and is liable to be punished by the State for his contravention of s 50(1) of the Consolidation Act. Putting to one side s 9(2) and the Amending Act, Chiro is authority for the proposition that his liability to punishment is limited to those acts forming the actus reus of the offence as found by the jury to have been proved and only for those acts. In Nicholas v The Queen, Brennan CJ remarked that “[t]he finding of facts is a curial determination of the actual existence or occurrence of the acts, matters and things on which criminal liability for the offence charged depends”.[141] In Mr Hamra’s case that curial determination has occurred on the question of what acts, of which there must be a minimum of two committed no less than three days apart, he committed and for which he is liable to be punished. In my view, s 9(2) requires, in effect, that the exercise be repeated. In that sense this case is not unlike Plaut v Spendthrift Farm Inc in that the Parliament commands that a controversy resolved in the exercise of judicial power be re-opened and retried.
[141] (1998) 193 CLR 173 at [19].
It is true that in a sense s 9(2) leaves the verdict intact. However, that is to focus on form and overlook substance. In the case of a verdict of guilt returned on a charge of persistent sexual exploitation of a child, the verdict has a content or meaning despite the fact that without questioning the jury it will not be known (assuming more than two acts of sexual exploitation are particularised). To the extent that undertaking the exercise prescribed in s 9(2) results in a conclusion that certain acts were proved to the satisfaction of the sentencing court beyond reasonable doubt, that task is, as I have said, a repeat of the task undertaken at trial. Further the outcome may differ to the true content of the verdict.
I reject the Solicitor-General’s submissions that, bearing in mind that the resolution applied in Chiro may have the same consequence, this is of no consequence. First, the approach in Chiro does not involve any repeated exercise of judicial power. Second, that approach ensures that the punishment imposed cannot exceed that which is proportionate to the jury’s findings.
Further, when Mr Hamra pleaded not guilty and put himself upon the country, the judicial process invoked included the protections to which I have referred. Those protections, amongst other things, ensured that he could only be punished by the State for offences of which the jury, either unanimously or by statutory majority, found him guilty. In the case of the offence created by s 50(1) of the Consolidation Act, that meant the process protected him from punishment for any two or more acts of sexual exploitation committed over a period of not less than three days unless the jury, unanimously or by statutory majority, agreed such acts to have been proved beyond reasonable doubt. Subsequently, s 9(2) of the Amending Act instructs the judicial power to, in effect, ignore those protections and their exercise, and to, effectively, repeat the exercise without affording Mr Hamra the same protections so as to avoid the legal consequence attaching to the initial exercise of judicial power.
That s 9(2) seeks to overcome the outcome in Chiro is plain. The intention is to ensure that a person convicted by a jury of the persistent sexual exploitation of a child in circumstances where the jury is not asked which acts of sexual exploitation particularised in the charge it agreed were proven, is not sentenced on the version of the facts most favourable to them unless that version coincides with the findings of the sentencing court beyond reasonable doubt. The practical effect is that the initial exercise of judicial power, which sets the boundary to the subsequent exercise of judicial power to punish, is, in that respect, dispensed with.
Earlier in these reasons I have referred to the importance of the participation of ordinary members of the community in the administration of criminal justice to the legitimacy of the judicial process and the exercise of judicial power. In my view that legitimacy is substantially undermined where a law directs a court that has adjudged, after a trial by jury, the extent of an accused’s liability to punishment, to put that adjudgment aside, save in form, and repeat the exercise without a jury and the protections a jury provides in order that a different basis for punishment be determined. The measure may be popular, but its pursuit is obtained at a high price for the administration of criminal justice.
AEU and Plaut v Spendthrift Farm Inc concerned the intersection of laws and the exercise of judicial power in constitutional contexts different to that in which the Kable principle operates. Nonetheless, in my view, there can be little greater threat to the institutional integrity of the District Court than a law of the State that requires that Court to re-try a question that has already been resolved by the Court because the outcome as determined in accordance with the law is unpalatable to the legislature.
For these reasons, in my view the function conferred by s 9(2) draws the District Court into a process antithetical to the exercise of judicial power and is incompatible with that Court’s constitutionally mandated position.
Conclusion and orders
I would answer the question reserved, “No”.
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