QUESTION OF LAW RESERVED (NO 1 OF 2018)

The Full Court of the Supreme Court of South Australia considered a question of law reserved concerning the validity of legislation enacted in response to the High Court's decision in *Chiro v The Queen*. The defendant, Stephen John Hamra, had been convicted by a jury of persistent sexual exploitation of a child under section 50(1) of the *Criminal Law Consolidation Act 1935* (SA). The jury returned a general verdict of guilty, and the sentencing was adjourned.

The legal issue before the Full Court was the validity of section 9(2) of the *Statutes Amendment (Attorney-General’s Portfolio) (No 2) Act 2017* (SA). This provision was introduced to address the implications of *Chiro v The Queen*, which held that in such cases, sentencing must proceed on the basis of the facts most favourable to the defendant if the jury's specific findings were not ascertained. Section 9(2) purported to deem a guilty verdict as a finding that all alleged acts of sexual exploitation were proved, while also allowing the sentencing court to disregard acts not proven beyond reasonable doubt, thereby negating the *Chiro* principle.

The Court reasoned that while state parliaments are not bound by a strict constitutional separation of powers, the principle established in *Kable v Director of Public Prosecutions NSW* and subsequent cases limits the extent to which state legislatures can legislate in ways that impair the institutional integrity of state courts. The Court found that section 9(2) conferred a function or power upon the sentencing court that substantially impaired its institutional integrity and constituted an impermissible executive intrusion into the court's processes. This was because the provision effectively allowed the court to interpret a jury's verdict in a manner inconsistent with its basis, potentially leading to sentencing for an offence whose actus reus the jury had not demonstrably found to be proved.

Consequently, the Full Court answered the question of law reserved in the negative. It held that section 9(2) of the *Statutes Amendment (Attorney-General’s Portfolio) (No 2) Act 2017* (SA) was invalid. The sentencing of the defendant was therefore to proceed in accordance with the law as it applied prior to the enactment of section 9(2).