R v Abdulla - [2010] SASC 52

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ABDULLA
[2010] SASC 52
Judgment of The Court of Criminal Appeal
(The Honourable Justice Bleby, The Honourable Justice Gray and The Honourable Justice Anderson)
11 March 2010
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
CRIMINAL LAW - PROCEDURE - VERDICT - OTHER MATTERS
CRIMINAL LAW - PROCEDURE - COURSE OF EVIDENCE, STATEMENTS AND ADDRESSES - ADDRESSES - FINAL ADDRESS OF COUNSEL FOR CROWN
FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE LEGISLATION - CRIMES AND OFFENCES BY CHILDREN - JURISDICTION OF CHILDREN'S COURTS - SOUTH AUSTRALIA
Appeal against conviction for rape - information alleged offence took place after accused became an adult – cross-examination of the complainant raised possibility that alleged offence took place whilst accused was a youth – at close of the prosecution case defence counsel applied for a stay of proceedings seeking to have the charge dealt with by the Youth Court – application declined by trial Judge and special verdict from jury sought.
Consideration of jurisdiction of District Court and Youth Court – whether District Court had jurisdiction to enter a judgment – consideration by jury of accused’s age – consideration of what burden of proof jury had to be satisfied of with respect to accused’s age.
Consideration of questions put to jury in seeking a special verdict – whether special verdict appropriate in the circumstances – consideration of appropriate standard of proof in answering questions.
Consideration of prosecutor’s address and trial Judge’s summing up – whether prosecutor’s comments on complainant’s evidence appropriate – whether adequate directions made by trial Judge.
Held (per Bleby J, Anderson J agreeing): Appeal dismissed – jury properly directed to assess accused’s age at time of offence on the balance of probabilities as a matter going to the District Court’s jurisdiction – trial Judge’s directions appropriate in the circumstances of the questions put to jury in seeking a special verdict – prosecutor’s comments in closing address appropriate in the circumstances.
Held (per Gray J, dissenting): Appeal allowed - jury misdirected when asked to determine the age of the defendant at the time of the alleged offence on the balance of probabilities - substantial consequences flowing from age of defendant at time of offence - date of offence material particular requiring proof beyond reasonable doubt - consideration of materiality of particulars - age of defendant as matter going to the District Court's jurisdiction also to be established beyond reasonable doubt - questions posed to jury characterised as special questions not special verdicts - no power in Court to accept return of majority answer by jury to special questions.
Criminal Law Consolidation Act 1935 (SA) s 48, s 354(2), s 277(1); Young Offenders Act 1993 (SA) s 4, s 16, s 17, s 17A, s 23, s 29, s 57; Summary Procedures Act 1921 (SA) Part 5; Juries Act 1927 (SA) s 57, referred to.
Thompson v The Queen (1989) 169 CLR 1, applied.
Palmer v The Queen (1998) 193 CLR 1, distinguished.
The Queen v Pfitzner (1976) 15 SASR 171; R v Liddy (2002) 81 SASR 22; R v Sluczanowski (2008) 256 LSJS 277, discussed.
R v Spanos (2007) 99 SASR 487; R v Dudley (1884) 14 QBD 273; R v Brown [1949] VLR 177; Woolmington v Director of Public Prosecutions [1935] AC 462; Johnson v Miller (1937) 59 CLR 467; R v McDonald (1995) 65 SASR 322; R v Wilkes (1948) 77 CLR 511; Mraz v The Queen (No 2) (1956) 96 CLR 62; WGC v The Queen (2007) 233 CLR 66; Ayles v The Queen (2008) 232 CLR 410; Kirk v Industrial Relations Commission (NSW) (2010) 84 ALJR 154; John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508; De Romanis v Sibraa [1977] 2 NSWLR 264; KRM v The Queen (2001) 206 CLR 221; R v Stringer (2000) 116 A Crim R 198; Hackwill v Kay [1960] VR 632; Environment Protection Authority v Sydney Water Corporation Ltd (1997) 98 A Crim R 481; R v Dossi (1918) 13 Cr App Rep 158; R v Jacobs [1993] 2 Qd R 541; R v H (1995) 83 A Crim R 402; R v Radic (2001) 122 A Crim R 70; R v VHP (Unreported, NSWCCA, 7 July 1997); R v Westerman (1991) 5544 A Crim R 353; Courtie v The Queen [1984] AC 463; Kingswell v The Queen (1985) 159 CLR 264; R v Palaga (2001) 80 SASR 19; A, MC v Police (2008) 102 SASR 151; R v Kringle [1953] Tas SR 52; R v Bourne (1952) 36 Cr App Rep 125; Cunningham v Ryan (1919) 27 CLR 294; Mayor and Burgesses Devizes v Clark (1835) 111 ER 506; Jackson v The Queen (1976) 134 CLR 42; Otis Elevators Pty Ltd v Zitis (1986) 5 NSWLR 171; Russell v Victorian Railways Commissioners [1948] VLR 118; Phillips v Ellinson Bros Pty Ltd (1941) 65 CLR 221; Cunningham v Ryan [1919] 27 CLR 294; Cheatle v R (1993) 177 CLR 541; MacKenzie v The Queen (1996) 190 CLR 348; S v The Queen (1989) 168 CLR 266, considered.

R v ABDULLA
[2010] SASC 52
Court of Criminal Appeal: Bleby, Gray and Anderson JJ
BLEBY J.
Introduction

The appellant appeals against his conviction in the District Court after a trial by jury of one count of rape. The grounds of appeal concern two issues. The first is the taking of a special verdict by the trial Judge as to whether an act of intercourse occurred, and if so, whether at the time the accused was over the age of 18. The second concerns part of the prosecutor’s address to the jury said to reverse the onus of proof and the alleged inadequacy of the trial Judge’s directions in respect of that issue.
The facts
The appellant was charged on information with the following offence:
Statement of Offence
Rape. (Section 48 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Gilbert William Vincent Abdulla between the 24th day of January 2003 and the 10th day of April 2006 at the cemetery at Gerard, had anal sexual intercourse with [the male complainant], without his consent.
The maximum penalty for rape is imprisonment for life.
The appellant was born on 23 January 1985. He thus turned 18 on 23 January 2003. It was the prosecution case that there was only one offence which occurred at a time after the appellant turned 18.
In his evidence the complainant was unable to be specific about the date on which the alleged rape occurred. In examination-in-chief he described the time when it occurred by reference to other events, the dates of which were established. That evidence was all consistent with the alleged rape having occurred within the period specified in the Information. It was only in cross-examination that some doubt was cast on that by the complainant’s concession that the alleged rape may have occurred by reference to other events that occurred at some time before the appellant turned 18.
After the close of the prosecution case and after he had indicated that the appellant would call no evidence, counsel for the appellant made an application in the absence of the jury to stay proceedings as an abuse of process on the ground that the appellant was deprived of procedural fairness by failing to have the charge dealt with by the Youth Court. In particular, he was denied the possibility of being sentenced upon principles binding the Youth Court rather than principles relevant to the sentencing of an adult in the District Court.
The trial Judge refused the application and decided to seek a special verdict from the jury. Towards the end of the summing up the jury were handed, by way of an aide-memoire, written questions that they would be asked, depending upon the answers given at each stage. The written questions were as follows:
VERDICT
Question 1
Are you satisfied beyond reasonable doubt that an act of sexual intercourse took place as alleged by the complainant?
If NO     à     Verdict (not guilty)
If YES    à     question 2
Question 2
Are you satisfied on the balance of probabilities that the accused was over the age of 18 years at the time?
If NO     à     no verdict required
If YES    à     Verdict (Guilty or not guilty)
Verdict Do you find the accused guilty or not guilty
In the course of summing up to the jury the Judge said:
In this case there is a preliminary matter which you will need to decide. That is because there is some evidence which might lead you to find that if an act of sexual intercourse took place at all, it happened before the accused had turned 18, before he was an adult. I will come back to discuss the evidence on that issue later.
The reason that the question of the accused’s age is important is because, as you will appreciate, only an adult can be tried in this court. If you were to be satisfied beyond reasonable doubt that an act of sexual intercourse took place between the complainant and the accused, but were not satisfied that at that time the accused had reached the age of 18, then this matter would have to go to another court to be dealt with. As I said, I will return to discuss that issue in greater detail.
The Judge then explained the elements of the crime of rape and continued:
However, ladies and gentlemen, you may well think that the real issue in this case is whether you are satisfied beyond a reasonable doubt that the act of sexual intercourse, which is alleged to have occurred at the cemetery, happened at all.
That was indeed the principal issue in the case. The Judge continued:
I return to the preliminary question which must be decided. That question is whether the accused was over the age of 18 years at the time that the alleged event occurred. As I said earlier, if the accused was not over the age of 18 years at the time he needs to be dealt with in another court. You will recall that the accused was born on 23 January 1985.
The prosecution has the onus of establishing the accused was over 18, however the prosecution has the onus of proving the age of the accused on a lesser onus of proof. The prosecution must satisfy you on the balance of probabilities that the accused was over 18. That is, on the basis that is more probable than not that he was over 18 at the time.
That is the only issue that is to be decided on the lower standard of proof. The prosecution must prove everything else beyond reasonable doubt and in particular has the onus of proving each of the elements of the offence beyond reasonable doubt.
In considering that preliminary issue, therefore, and in determining whether you are satisfied that the accused was over the age of 18 years, you will need to consider whether you are satisfied beyond reasonable doubt that the event took place at all. That is so, because if you are not satisfied beyond reasonable doubt that an act of intercourse took place at all it would not be possible for you to make any finding as to whether the accused was over the age of 18 years at the time.
So, you will need to consider whether, on all the evidence, you are satisfied beyond reasonable doubt that an act of intercourse took place. You will then need to consider whether on all the evidence you are satisfied that at the time the accused was over the age of 18 years.
The Judge then explained the questions that would be asked as they subsequently appeared in the written aide-memoire.[1] He concluded:
If the answer to the first question is yes, you will need to consider whether you are satisfied, on the balance of probabilities that the accused was over the age of 18 years at the time. If you are so satisfied you would go on to consider the remaining elements of the charge of rape and deliver your verdict as to whether or not you are satisfied beyond reasonable doubt that the accused is guilty.
If you are not satisfied that the accused was over 18 at the time, then the matter will be dealt with in another court and you would not need to consider the ultimate question as to whether or not you are satisfied beyond reasonable doubt that the accused is guilty.
[1] Set out above, at [6].
After the aide-memoire was handed to the jury the Judge said:
Again, they are notes which are a summary and an aid to recollection. What I say to you now is the direction you should follow.
When you return to deliver your verdict the foreperson of the jury, who you will have to appoint if you have not already, will be asked the first question: ‘Are you satisfied beyond reasonable doubt that an act of sexual intercourse took place as alleged by the complainant?’. The foreperson will answer either ‘Yes’ or ‘No’.
If the answer is ‘No’, that is ‘We’re not satisfied beyond reasonable doubt that the act of sexual intercourse took place’, you will be asked for your verdict as to whether you find the accused guilty or not guilty. Because the prosecution will, in those circumstances, have failed to satisfy you beyond a reasonable doubt of an essential ingredient of the offence, your verdict will, of necessity, be one of not guilty.
If your answer is ‘Yes’, that is ‘We are satisfied beyond a reasonable doubt that an act of sexual intercourse took place as alleged by the complainant’, you will be asked ‘Are you satisfied that at the time the accused was over the age of 18?’. If your answer to that question is ‘No’, that will be the end of the matter, and the accused will be dealt with in another court.
If your answer is ‘Yes’, you will be asked to deliver your verdict as to whether you find the accused guilty or not guilty, bearing in mind that you will have considered whether or not the prosecution has proved all of the elements of the offence beyond reasonable doubt.
The jury retired for over four hours before returning with a verdict. The taking of the verdict followed the written form of the questions as follows:
ASSOCIATE:     In relation to question one, are you unanimously agreed upon your verdict?
FOREPERSON:    No.
ASSOCIATE:     Are 10 or more of you agreed upon your verdict for a majority verdict?
FOREPERSON:    Yes.
ASSOCIATE:     Are you satisfied beyond reasonable doubt that an act of sexual intercourse took place as alleged by the complainant?
FOREPERSON:    Yes.
ASSOCIATE:     Is that the verdict of 10 or more of you?
FOREPERSON:    Yes.
ASSOCIATE:     In relation to question 2, are you unanimously agreed upon your verdict?
FOREPERSON:    Yes.
ASSOCIATE:     Are you satisfied on the balance of probabilities that the accused was over the age of 18 years at the time?
FOREPERSON:    Yes.
ASSOCIATE:     Do you find the accused guilty or not guilty?
FOREPERSON:    Guilty.
ASSOCIATE:     Is that the verdict of you all?
FOREPERSON:    Yes.
Counsel for the prosecution then pointed out to the Judge that the Associate had not actually said, “On the charge of rape, do you find him guilty or not?”. The questions were then put to the jury in the following form:
ASSOCIATE:     In relation to the offence of rape, do you find the accused guilty or not guilty?
FOREPERSON:    Guilty.
ASSOCIATE:     Is that the verdict of you all?
FOREPERSON:    Yes.
Counsel then raised a further question as to whether the final verdict was a majority verdict or not. The Judge then took the final verdict again in the following form:
ASSOCIATE:     Members of the jury, in relation to the offence of rape, are you unanimously agreed upon your verdict?
FOREPERSON:    No.
ASSOCIATE:     Are 10 or more of you agreed upon your verdict for a majority verdict?
FOREPERSON:    Yes.
ASSOCIATE:     Sorry, in relation to the offence of rape, do you find the accused guilty or not guilty?
FOREPERSON:    Guilty.
The relevant statutory provisions
Subject to one irrelevant exception, the Young Offenders Act 1993 (SA) applies to any offence alleged to have been committed by a youth.[2] “Youth” is defined as meaning:[3]
a person of or above the age of 10 years but under the age of 18 years and, in relation to proceedings for an offence or detention in a training centre, includes a person who was under the age of 18 years on the date of the alleged offence
[2] Young Offenders Act 1993 s 4.
[3] Young Offenders Act 1993 s 4.
Section 16 of the Young Offenders Act provides:
16—Where charge is to be laid
(1)Subject to this section, if a youth is to be charged with an offence to which this Act applies, the charge must be laid before the Court.
(2)The DPP may, instead of laying a charge of an offence against a youth before the Court, lay the charge before the Magistrates Court if—
(a)     the youth is charged with a major indictable offence; and
Note—
See also section 102 of the Summary Procedure Act 1921.
(b)     the DPP is of the opinion that the youth poses an appreciable risk to the safety of the community and should, therefore, be dealt with in the same way as an adult.
For the purposes of the Young Offenders Act “the Court” means the Youth Court of South Australia.[4]
[4]    Young Offenders Act 1993 s 4.
It can be seen from s 16(2) of the Young Offenders Act that there is an avenue for commencing proceedings in the Magistrates Court, in which case Part 5 of the Summary Procedure Act 1921 (SA) relating to committal for trial applies, and the Magistrates Court, if of the opinion that the youth poses an appreciable risk to the safety of the community, may commit the youth for trial or sentence to the Supreme Court or the District Court, and in any other case to the Youth Court.[5]
[5] Young Offenders Act 1993 s 17A.
There is another avenue by which proceedings, although commenced in the Youth Court, may nevertheless end up in the Supreme Court or the District Court. Section 17(3) of the Young Offenders Act relevantly provides:
17—Proceedings on charge laid before Youth Court
…
(3)If—
…
(b)     the offence with which the youth is charged is an indictable offence and the youth, after obtaining independent legal advice, asks to be dealt with in the same way as an adult; or
(c)     the Court or the Supreme Court determines, on the application of the DPP or a police prosecutor, that the youth should be dealt with in the same way as an adult because of the gravity of the offence, or because the offence is part of a pattern of repeated offending,
the Court will conduct a preliminary examination of the charge, and may commit the youth for trial or sentence (as the case requires) to the Supreme Court or the District Court.
If the matter remains in the Youth Court there are limitations on the sentencing powers of the Youth Court, both as to the nature and period of detention,[6] and as to certain other limitations and qualifications. These limitations and qualifications do not apply if the youth is sentenced as an adult in the Supreme Court or the District Court.
[6]    Young Offenders Act 1993 s 23.
Even though a youth may be committed for trial in the Supreme Court or the District Court, he or she may nevertheless be dealt with as a youth. Section 29(1) of the Act provides:
29—Sentencing youth as an adult
(1)Subject to this Act, where a youth is committed to the Supreme Court or the District Court for trial, and is found guilty on trial in that court, or is committed to the Supreme Court or the District Court for sentence, that court, on sentencing the youth, may—
(a)     deal with the youth as an adult; or
(b)     make any order in relation to the youth that may be made by the Youth Court on sentencing a youth; or
(c)     remand the youth to the Youth Court for sentencing.
Finally s 57 of the Young Offenders Act provides:
57—Determination of a person's age
(1)A court, family conference, or police officer will, in determining the age of a person for the purpose of this Act, act on the best evidence or information that is reasonably available but, in the absence of any such evidence or information, may itself estimate the age of the person.
(2)If, in any proceedings before a court, it becomes apparent to the court that the person the subject of those proceedings should, by reason of age, be dealt with in some other court, the court may remand that person to appear in the appropriate court.
Grounds of appeal

The grounds of appeal, as amended, relating to the special verdict procedure adopted by the trial Judge are as follows:
1.The learned trial judge erred in relation to the court’s jurisdiction to hear and determine the charge.
1A.There is an appreciable risk of a miscarriage of justice having occurred in relation to the jury being asked to give a special verdict by reason of:
1A.1 the jury misunderstanding question 1; and/or
1A.2 the participation in and agreement to a unanimous verdict in relation to question 2 by that juror or those jurors who formed the minority in relation to question 1.
In relation to ground 1 the appellant challenged the power of the Court to require a special verdict in these circumstances. Alternatively, if a special verdict was permissible, it was argued that the jury should have been directed that the standard of proof borne by the prosecution in relation to the appellant’s age was beyond reasonable doubt. Although not mentioned in the ground of appeal, the appellant, in his written outline of argument, submitted that s 57 of the Juries Act 1927 (SA) relating to majority verdicts had no application to a special verdict. However, that argument was not pressed at the hearing because the answer to question 2 relating to the accused’s age was unanimous and the majority verdict on question 1 was ultimately subsumed in the permitted final majority verdict of “guilty”. In those circumstances I consider that the point does not arise for consideration on this appeal.
Whether a special verdict was appropriate
Section 354(3) of the Criminal Law Consolidation Act 1935 (SA) acknowledges the existence and possibility of special verdicts at common law but says no more about them. Some general propositions relating to special verdicts were stated in R v Spanos[7] by Debelle J[8] and by Layton J.[9] The use of special verdicts is discretionary on the part of the trial Judge and is usually required for determination of a particular fact or facts on which a question of law, and hence the general verdict in a criminal case, will depend.[10]
[7] [2007] SASC 409, (2007) 99 SASR 487.
[8] Ibid [2], 488-489.
[9] Ibid [33], 496-497.
[10] See for example R v Dudley (1884) 14 QBD 273; R v Brown [1949] VLR 177, 183.
It is a device particularly appropriate for resolution of a question relating to the jurisdiction of the court. In Thompson v The Queen[11] the jurisdiction of the ACT Supreme Court to hear a charge of murder depended on whether the death occurred within the Territory or the cause of death happened within the Territory. The bodies of the victims had been found in a burnt out car just within the border between the Territory and New South Wales whence the car had come. The appellant alleged that it had not been proved beyond reasonable doubt that either the cause of death or the deaths themselves had occurred within the ACT. In their joint judgment Mason CJ and Dawson J, with whom Gaudron J agreed, said:[12]
Clearly it will be desirable to seek a special verdict upon the issue of jurisdiction if it is raised. That course was not taken in the present case and a verdict of guilty was returned, but a special verdict indicating lack of jurisdiction will be relevant, if for no other reason, in the event of a further prosecution in a jurisdiction where the defence of autrefois acquit or double jeopardy may be raised. The scope of such a defence was not explored in argument and we refrain from further comment upon it. The special verdict should be sought before any general verdict is taken and if it establishes lack of jurisdiction the jury should thereupon be discharged without taking a general verdict.
[11] (1989) 169 CLR 1.
[12] Ibid 15.
In this case the question of the District Court’s jurisdiction had not been raised at any time prior to the trial. It only arose when the appellant sought to take advantage of a concession by the complainant as to a possibility extracted during the course of cross-examination which, if correct, would have conferred jurisdiction on the Youth Court. The question of the jurisdiction of the District Court to hear the charge thus arose. In the circumstances, it was entirely appropriate for the trial Judge to seek a special verdict relating to the age of the accused at the time when the alleged act of sexual intercourse took place, if indeed the jury was satisfied that it had taken place.
There can be little doubt that an enquiry into a person’s age at the time of an alleged offence could be conducted by way of a voir-dire hearing in the absence of or before empanelment of a jury. Particularly is that so where the date of the offence is not in dispute and the enquiry relates to the accused’s age at the time. Here, however, there was no doubt as to the accused’s age at any given time. The question in issue was when the alleged offence occurred, if it occurred at all. The question whether it was proved to have occurred at all had to be determined by the Court before the question of when it occurred, and hence the Court’s jurisdiction to hear the charge, could arise. That first question was ultimately a jury question. It was therefore quite appropriate for the Judge to adopt the course he did, particularly when the issue did not even arise until well into the evidence being led before the jury.
The appropriate standard of proof
In Thompson v The Queen[13] Mason CJ and Dawson J, with whom Gaudron J agreed, decided that the standard of proof applicable to the establishment of the jurisdiction of a criminal court was proof on the balance of probabilities. Brennan J agreed, but considered that there was an exception. He said:[14]
If the conduct charged is an offence on one side of the border but not on the other or, in one forum, exposes the offender to punishment of a higher order than in another, locality is a fact on which liability to punishment depends. In such a case, the Woolmington[15] rule must apply in all its protective rigour.
[13] Ibid.
[14] Ibid 30.
[15] Woolmington v Director of Public Prosecutions [1935] AC 462.
Deane J also agreed but went a little further and held that where locality is a necessary ingredient of the crime, proof of the locality must be established beyond reasonable doubt.[16] However, his Honour did not consider locality to be an ingredient of the crime in that particular case. Deane J also noted that there was “obviously something to be said for the view that proof beyond reasonable doubt should be required in any case where the maximum penalty upon conviction is greater in the location of the trial than under the law of another possible location”.[17]
[16] Thompson v The Queen (1989) 169 CLR 1, 36.
[17] Ibid 38.
It is true that the Court in Thompson was only immediately concerned with the standard of proof as to the establishment of jurisdiction based on the locality of the crime, but in my view the reasoning of the majority is equally applicable to the establishment of jurisdiction based on any other ground.
Mason CJ and Dawson J considered that in the absence of binding authority and compelling precedents from other jurisdictions, the question was to be answered by reference to fundamental principle.[18]
[18] Ibid 11.
Their Honours continued:[19]
The issue of guilt is necessarily determined within a particular jurisdiction. But the issue cannot be determined unless the prosecution establishes the authority of the jurisdiction to enter judgment. This issue, namely, whether the offence was committed within the jurisdiction, is distinct from that of guilt, namely, whether the elements of the offence are made out. Proof of jurisdiction is a prerequisite of guilt but otherwise it is not an element in proof of the commission of the offence except in those cases in which the offence is so defined that commission of it in a place or locality is made an element of the offence charged. Proof of the commission of the offence must be demonstrated beyond reasonable doubt. But this does not mean that proof of the existence of jurisdiction must first be established beyond reasonable doubt.
… The fundamental principle [proof of an accused’s guilt beyond reasonable doubt] is not offended if the facts essential to the existence of jurisdiction in the court to enter judgment are required to be established according to the civil standard of proof. That is a discrete question which may be left to a jury upon the lesser standard of proof without diverting them from the standard which they are otherwise required to apply in determining guilt or innocence. …The policy or purpose which underlies the fundamental principle is sufficiently served and the protection of the accused adequately assured if the criminal standard of proof is applied to all the facts relied upon to make out the elements of the offence. To apply that standard to the proof of facts establishing the jurisdiction of the trial court would extend the protection of an accused person to the point of entitling him to an acquittal on the ground that the prosecution could not prove beyond reasonable doubt that the offence was committed in one State or Territory rather than another, even though, if jurisdiction were assumed, the circumstances would be such as to show beyond reasonable doubt that the accused committed the offence charged.
[19] Ibid 12-13.
In my opinion those observations are equally applicable to the determination of a question of jurisdiction relating to the time of the commission of an offence and the age of an accused at that time.
Particulars as to when the alleged offence occurred were not, in this case, fundamental to the charge, such that it required proof beyond reasonable doubt. As Bray CJ said in the The Queen v Pfitzner:[20]
Whether the date alleged in an information is vital to the charge must depend on the circumstances. So long as it is clear that the controversy turns on the events of a certain occasion, it may not matter if the date of that occasion is misstated if the occasion itself is clearly identified and both parties have directed their cases towards it.
[20] (1976) 15 SASR 171, 185.
Likewise, in R v Liddy[21] Mullighan J said:[22]
[21] [2002] SASC 19, (2002) 81 SASR 22.
[22] Ibid [256], 93-94.
It is well established that the dates in particulars of a charge are not to be regarded as an element of the offence or even as a material matter unless it is an essential part of the offence: R v Dossi (1918) 13 Cr App R 158; R v Pfitzner (1976) 15 SASR 171; McDermott v The Queen (1987) 45 SASR 335; R v Jacobs [1993] 2 Qd R 541; Hartley v The Queen (unreported, Court of Criminal Appeal, SA, Full Court, No 294 of 1994, 6 September 1994); G v R (unreported, Court of Criminal Appeal, SA, Full Court, No 13 of 1995, 4 April 1995); R v H (1995) 83 A Crim R 402 and R v McDonald (1995) 65 SASR 322. In Pfitzner Wells J said (at 192):
"Particulars in an information tend to belie their own name. They are an aid, but can never be more than an aid, to determining what exactly the defence is called on to answer."
In Johnson v Miller (1937) 59 CLR 467 at 489 Dixon J observed:
"For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge."
However, there may be cases where even though the particulars of when an offence is alleged to have been committed is not an element of the offence, it may be material to the integrity of the criminal process: R v H (at 76). I adhere to what I said in McDonald (at 330):
"However, as was acknowledged in Pfitzner, the circumstances of the case, including the forensic issues raised at the trial such as alibi or lack of opportunity, may make the date vital."
In this case there was only one event alleged. Alibi was not an issue. An amendment of the dates contained in the particulars could probably have been made without causing any injustice to the accused. In those circumstances the only relevance of the age of the accused at the time of the offence went to the jurisdiction of the court able to hear the matter. In my opinion, it was properly treated by the trial Judge as a matter to be determined on the balance of probabilities. It did not become an issue fundamental to the charge merely because it raised a question as to the jurisdiction of the District Court to hear the charge.
If proof of the time of the offence required proof beyond reasonable doubt, it is conceivable that the jury could have answered Question 2, “No”, in which case no verdict would be taken and the prosecution could only have proceeded thereafter in the Youth Court. The same question would no doubt arise before the Youth Court judge who would then have to be satisfied beyond reasonable doubt that the offence occurred while the appellant was a youth. If the evidence remained the same the Judge might well fail to be satisfied beyond reasonable doubt that the offence was committed while the appellant was a youth. An issue estoppel would therefore arise[23] whereby neither Court could convict even though both were satisfied beyond reasonable doubt that the offence had been committed. That could only bring the criminal justice system into disrepute. It is a result that should be avoided if at all possible. An answer by either court on the balance of probabilities would resolve the question once and for all without compromising a proper finding of guilty or not guilty according to law.
[23] See R v Wilkes (1948) 77 CLR 511, 518-519 Dixon J; Mraz v The Queen (No 2) (1956) 96 CLR 62.
There is also evidence of a parliamentary intention that proof of such an issue beyond reasonable doubt is not required. Section 57 of the Young Offenders Act has already been set out. Subsection (1) applies to the determination of a person’s age by a court, a family conference or a police officer. Each is required to act “on the best evidence or information that is reasonably available” and, in the absence of such information, to estimate the age of the person. That is hardly consistent with a requirement of proof beyond reasonable doubt.
Those judges who expressed the majority view in Thompson v The Queen[24] did not see fit to address the question whether the determination of the factual issue relating to the jurisdiction of the court could affect the penalty to be imposed. It did not form part of their reasoning. Although the sentencing powers of the District Court are greater for this offence than would be the powers of the Youth Court, the trial of the guilt or innocence of an accused in one court or the other does not necessarily determine which Court and according to what criteria the youth will be sentenced. In some cases, the Youth Court may be bypassed altogether if the DPP forms the necessary opinion referred to in s 16(2) of the Young Offenders Act. In other circumstances, if proceedings are commenced in the Youth Court, a youth may nevertheless be committed for trial in the Supreme Court or the District Court pursuant to s 17(3) of the Young Offenders Act. Furthermore, if the trial of a youth does take place in the Supreme Court or the District Court, the option exists in accordance with s 29(1) of the Young Offenders Act for the youth to be sentenced in the Youth Court or for the trial court to make any order that the Youth Court may make. Therefore, the question of penalty, if it has any bearing at all on the standard of proof required of a fact going to the jurisdiction of the Court, can have little or no influence on the standard of proof applicable in this case.
[24] (1989) 169 CLR 1, Mason CJ, Dawson and Gaudron JJ.
Section 57(2) of the Young Offenders Act would suggest that possible penalty differences are not relevant in determining the onus of proof. The requirement to remand to the appropriate court only arises if it becomes apparent that by reason of age the accused should be dealt with in another court.
In my opinion, the trial Judge correctly directed the jury as to standard of proof that should be applied in answering the second question.
The form of the questions
It was argued that the form of the questions was confusing and did not properly allow for the possibility of a majority verdict in answering question 1. The Judge’s directions to the jury were reasonably clear. In respect of question 1, the jury would reasonably have understood that they were only concerned with whether an act of intercourse had taken place and not with any question of consent. The additional qualification in the question “as alleged by the complainant” might, on its face, include a qualification as to the date of the alleged act of intercourse. However, taken in the context of the whole of the case and the oral directions of the trial Judge, question 1 could only have been taken by the jury to raise the question whether an act of sexual intercourse of the type alleged by the complainant took place. Question 2 dealt discretely with the time of the alleged act, as distinct from its happening. I do not consider that there was any confusion in question 1, although in hindsight it could have been more satisfactorily worded.
The fact that there was a majority verdict in the answer to question 1 and a unanimous verdict in answer to question 2 might suggest an inconsistency on the part of one or two jurors who were not satisfied beyond reasonable doubt that an act of sexual intercourse had taken place at all. However, in my view the way the questions were answered merely demonstrates that the jury applied their collective mind separately to the question whether they were satisfied beyond reasonable doubt that the event had happened, and, if it did happen, whether on the balance of probabilities it happened when the accused was over 18. There is nothing incongruous about a juror or jurors who dissented in the answer to question 1 proceeding to answer question 2 and agreeing in that answer with their colleagues on the assumption that the majority was correct and would be accepted in their answer to question 1.
With hindsight, the wording of both questions could have been improved, but I do not consider that their asking in the form directed constituted a miscarriage of justice or signalled any misunderstanding on the part of the jury of the questions asked.
To move from the answer to question 2 to question 3 as posed in the aide-memoire and as asked by the associate when the jury was delivering its verdict, was, in my opinion, an error. The question did not identify the charge and the jury was not asked whether they had reached their verdict unanimously or by majority.
However, in the circumstances, there could be little doubt about the identity of the charge the subject of question 3. In any event, all doubts were ultimately removed by the Judge directing the correct questions to be asked before the jury was discharged. The answers given were consistent with the answers given to question 1.
I would reject grounds 1 and 1A of the Amended Grounds of Appeal.
The prosecutor’s address and the judge’s summing up
As is not unusual in cases of this nature, the reliability of the complainant’s evidence was attacked by counsel for the accused. During the course of his address to the jury on the reliability of the complainant, the prosecutor made the following comment:
It was suggested to him that he had just made up his story, just made it up, that 'you just told the police whatever popped into your head'. It is sometimes suggested that 'Look, it's easy to make up these things and difficult for someone to defend it', but is it really so easy? Is it just a small step to just make up something like that? Consider what it is that the defence are really suggesting here, that [the complainant] sits around and all of a sudden decides 'Well look, I'm going to decide that Gilbert Abdulla raped me. I'm going to tell them quite dishonestly and maliciously that he put me on the bonnet of a car and he raped me, invent a story start to finish'. Makes it all up, provides a written statement to the police, signs it and provides more statements to the police. This is starting when he's a 12-year-old boy. He's required to come to court and he's cross-examined. Do you really think that this is just something that is easy, that you just make that up as it was suggested to him? Did he give you that impression, that he was just here just telling a whole pack of lies?

It was submitted, for the appellant, that those comments were improper as they amounted to the prosecutor posing the rhetorical question, “Why should the complainant lie?”. It was submitted, based on the authority of Palmer v The Queen[25] that such a submission was impermissible.
[25] [1998] HCA 2, (1998) 193 CLR 1.
In Palmer, during a trial for sexual offences against a child aged 14, the accused was asked in cross-examination whether he could suggest any reason why the complainant would invent allegations against him. The accused was unable to suggest such a reason. It was held by a majority[26] that the complainant’s account gained no legitimate credibility from the evidence that the accused could not suggest a motive for her to lie. It was held that a miscarriage of justice may have occurred because of the prejudicial effect that, in the circumstances of the case, the asking of the question may have had.
[26] Brennan CJ, Gaudron, Gummow and Kirby JJ, McHugh J dissenting.
In their joint judgment Brennan CJ, Gaudron and Gummow JJ said:[27]
If it were permissible generally to cross-examine an accused to show that he has no knowledge of any fact from which to infer that the complainant has a motive to lie, the cross-examination would focus the jury's attention on irrelevancies, especially when the case is "oath against oath". In such a case, to ask an accused the question: "Why would the complainant lie?" is to invite the jury to accept the complainant's evidence unless some positive answer to that question is given by the accused.
[27] Ibid [8], 7.
That case, and others like it, related to the cross-examination of the accused and his expressed inability to suggest a motive for the complainant to lie. It did not relate to a suggestion by counsel as to how the jury should approach the evidence of the complainant.
The complaint in this case was that the prosecutor, in posing the rhetorical question, invited the jury to accept the complainant’s evidence in the absence of some positive answer to that question from the accused. However, the prosecutor’s submission to the jury was not based on any evidence or lack of evidence of the accused, but on the suggested lack of integrity of the complainant.
The complainant’s evidence was attacked on the basis of the numerous inconsistencies in his evidence and his statements given to the police. It had been suggested that he made the story up and was prepared to say whatever “popped into his head”. The prosecutor had invited the jury to view the inconsistencies in his evidence and his responses to questions in the light of his age, his limited education, the nature of the allegations and the nature of the courtroom environment. What was said by the prosecutor in the impugned passage was an attempt to test the theory that the complainant was prepared to give evidence implicating the accused without concern for the consequences of his actions. It was appropriate for the prosecutor to invite the jury to consider the circumstances under which the complainant came to court in assessing his truthfulness as a witness. The prosecutor was doing no more than drawing attention to the fact that, rather than saying whatever came into his head at the time, he was not coming along to court to tell his story for the first time, but had been through a substantial pre-trial process of having to recite his story and recall the relevant events. It was in the light of that that the prosecutor invited members of the jury to consider whether, in giving his evidence, he was merely making things up.
In any event, I consider that there was an adequate direction by the trial Judge as to where the onus of proof lay. The jury were directed that they should not speculate as to why the accused did not give evidence, and that at all times the burden of proof lay upon the prosecution. In the course of that direction the Judge said:
It is the prosecution which must prove its case beyond a reasonable doubt. The accused, as I have said, does not have to prove anything.
He does not, for example, have to prove any motive on the part of the complainant to make things up. There may be many reasons why people make things up and you should not speculate about that. Again the accused does not have to prove anything.
This was not a case where it was necessary to warn the jury that if they rejected the suggestion that the complainant had a motive to lie, it did not mean that the prosecution case was strengthened.[28] The direction was consistent with what was considered appropriate in R v Sluczanowski where Duggan J (with whom Doyle CJ and Anderson J agreed) said:[29]
A direction not to speculate as to whether the complainant had a motive for making false allegations is appropriate if made in response to a prosecution submission along the lines of the rhetorical question “Why should the complainant lie?” However, it is inappropriate when put as a general proposition in a case where, as here, there was evidence which required the jury to consider whether the complainant had a particular reason for making false allegations.
[28] Cf R v Sluczanowksi [2008] SASC 185, [42], (2008) 256 LSJS 277, 283.
[29] Ibid [49], 284.
If there was any danger that the jury might have reasoned in an impermissible way as a result of the comments by the prosecutor, in my view it was removed by the direction of the trial Judge.
I would reject this ground of appeal.
Conclusion
It follows that, for these reasons, I would dismiss the appeal.
GRAY J.
This is an appeal against conviction.
Introduction
The defendant and appellant, Gilbert William Vincent Abdulla, was convicted by majority jury verdict of the crime of rape following a trial in the District Court.
It was common ground at trial that the defendant turned 18 years on 23 January 2003. The laying of the information followed a committal proceeding. The information was laid in the District Court charging the defendant as an adult. It is relevant to record that the particulars provided in the information alleged a date range[30] during which it was asserted the offence occurred, commencing the day after the defendant attained his majority.
[30] The particularisation of a date range is permissible. As Gummow J pointed out in WGCv The Queen (2007) 233 CLR 66 at [8]:
What then is conveyed in s 49(4) [of the Criminal Law Consolidation Act 1935 (SA)] by the term "the date"? In answering that question it would be inappropriate to begin with what might follow from the general proposition that in reckoning time by days ordinarily the law takes no account of fractions of a day. A solar day of twenty-four hours is a division of time. Here, what is to be construed is the statutory expression "the date". It is true that in popular usage "date" may identify a particular day on the calendar. But the term "the date" encompasses more than that, including both a particular point in time at, and a period of time within which, an event or transaction occurs.
The information and particulars were as follows:
Statement of Offence
Rape. (Section 48 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Gilbert William Vincent Abdulla between the 24^th day of January 2003 and the 10^th day of April 2006 at the cemetery at Gerard, had anal sexual intercourse with [VS], without his consent.
Before coming to discuss the issues arising on the appeal, it is convenient to summarise the respective cases of the prosecution and defence.
The Prosecution Case
The prosecution case was that some time between 24 January 2003 and 10 April 2006, the defendant raped the complainant. The defendant was said to be 18 years of age or older.
At the time of the alleged incident, the complainant resided with a relative, spending some time in Barmera and some time in the Aboriginal community, Gerard, near Barmera. The relative with whom the complainant resided was also the defendant’s aunt. According to the complainant, the offence of rape took place when he was living at the house in Gerard. He gave evidence that he was at home watching the animated film “Madagascar”. The complainant was asked by his relative to attend to an errand. The defendant offered to give him a lift in his vehicle. The complainant accepted. According to the complainant, after both he and the defendant entered the vehicle, the defendant drove to the cemetery rather than attending to the errand. On arriving at the cemetery, the defendant told the complainant to get out of the vehicle, which he did. The defendant pulled the complainant’s and his own pants down and proceeded to rape the complainant. It was said that the defendant grabbed the complainant, pushed him over the bonnet of the vehicle and had anal sexual intercourse with him without his consent. The complainant alleged that as the conduct occurred, he wriggled to the side to try to avoid the defendant, but was not successful, as the defendant had a firm grip of his neck and right shoulder and was holding him down. The complainant gave evidence that the conduct caused him pain and he was screaming and swearing and telling the defendant to get off. The rape was said to go on for some time before the defendant stopped. According to the complainant, the rape stopped as the defendant heard a vehicle approaching. The defendant re-entered the vehicle and drove off and the complainant proceeded to walk to the house at Gerard. The complainant gave evidence that when he arrived home, the end of the movie “Madagascar” was playing. The complainant said that he went to bed while others watched the movie “Underworld Evolution”.
The Defence Case
The defendant’s case was that no sexual conduct took place at all. The defendant did not give evidence and called no evidence.
During closing address, counsel for the defendant emphasised a number of inconsistencies in the complainant’s evidence as to when the alleged incident took place, and whether it took place at all. It was said that these inconsistencies impacted on the honesty and reliability of the complainant. The inconsistencies and variations of the complainant’s evidence were said to undermine the complainant’s credibility so fundamentally, that proof beyond reasonable doubt of the events charged was not possible. It was said that the complainant’s evidence was so unreliable that the jury could never be satisfied of the truth or accuracy of it. Counsel contended that the incident could not have happened in the way described by the complainant, and this was significant in assessing the veracity of the totality of the complainant’s account.
Inconsistencies in the evidence of the complainant included variations in the sequence of the alleged events. By a statement provided to the police in 2006, the complainant asserted that when the defendant took him to the cemetery and told him to get out of the vehicle, he locked the door and was forcibly removed from the vehicle before the rape occurred. This statement contrasted with that given in evidence where the complainant described a voluntary exit from the vehicle. Similarly, the complainant’s evidence that he walked home after the rape, contrasted with his earlier statement to the effect that they both re-entered the vehicle. In his evidence, the complainant said that on his return to the house at Gerard he went to bed while others watched “Underworld Evolution”. In his earlier statement, the complainant had suggested that he watched the movie before going to bed later.
Counsel highlighted inconsistencies in relation to the release of the movies “Madagascar” and “Underworld Evolution” and when the rape was alleged to have occurred. Having regard to the date of release of those two films, they could not have been viewed on the same occasion. Counsel emphasised that “Underworld Evolution” was not released until after the complainant had ceased to live at Gerard. Other discrepancies as to when the incident occurred included the time of year and whether it was hot or cold and the linking of the incident to a time prior to an occasion on which a friend cut his leg and required stitches. Further inconsistencies related to the vehicle said to be driven on the night of the incident and when the defendant had obtained that vehicle.
During the course of cross-examination, answers given by the complainant suggested that the alleged incident the subject of the charge had occurred at a date earlier than the period alleged in the information and at a time when the defendant was under the age of 18 years:
Q.Your best estimate as to when this incident occurred, you said you were nearly 10, is that right.
A.Yep.
Q.And you think you might have been in grade 4.
A.Yeah.
Q.Is there a chance you might have been in grade 3.
A.Probably.
…
The answers in the above extract are significant. If the complainant was in grade three at the time of the alleged offence, the date of the offence would have been 2002, at which time the defendant had not attained the age of 18 years. The following interchange gave rise to the same difficulty as to the date of the incident:
Q.When this incident that you’ve described happened with [the defendant], you say you were at a house in [street name].
A.Yes.
Q.Who was living in the house at that time.
A.[the complainant’s aunt], [a number of others], [the complainant], [the complainant’s brothers], [the defendant] and [the defendant’s girlfriend].
Q.Is that it.
A.And I think their first son.
Q.You say you think; you’re not sure about that.
A.Nup.
Q.Might it have been before their first son was born.
A.Yeah.
…
The defendant’s first son was born in January 2003, 14 days before the defendant’s eighteenth birthday. This evidence also raised a question as to whether the defendant was under the age of 18 at the time of the alleged offence.
The above evidence gives rise to questions as to the materiality of the date range particularised, the need to amend, the prejudice to the defendant and finally the related question of the jurisdiction of the Court. The inconsistencies arising from this evidence stand alongside the other inconsistencies referred to above.
Issues Arising
On appeal, the defendant contended that errors of law had occurred in the approach taken by the trial Judge to the question of jurisdiction. It was said that the challenge to jurisdiction that arose should have been determined by the Judge alone and not left to the jury’s determination. It was further argued that an error of law occurred in regard to the standard of proof when establishing jurisdiction. It was complained that it was inappropriate for the Judge to have sought a special verdict from the jury on that topic.
Alternatively, it was contended that when taking the special verdict, it was not open to accept a majority verdict and any special verdict had to be unanimous. It is to be noted that this complaint was not pressed at the hearing of the appeal. However, the issue is fundamental and relates to the power of the Court. It is akin to a challenge to jurisdiction.
A further complaint was advanced concerning what were said to be improper comments by the prosecutor during final addresses and the failure of the Judge to provide directions to overcome the resultant prejudice that might otherwise arise. I do not wish to add to the reasons of Bleby J on this issue.
The complaints advanced on appeal raise difficult and complex issues. Did the date of the alleged offence, as an issue going to jurisdiction, require proof beyond reasonable doubt? Was the date of the alleged offence a material averment, calling for proof beyond reasonable doubt? Insofar as questions were left to be determined by the jury, should the process be properly characterised as requiring a determination of fact by the jury, that is, the answer to a special question, rather than a returning of a special verdict?
Preliminary Observations
Adult or Young Offender
On the laying of the information, the defendant was confronted by the allegation that he, as an adult, committed the offence of rape. If found guilty he faced life imprisonment. If on the other hand, he was charged as a young offender with the offence of rape and was subject to proceedings in the Youth Court, he faced a maximum punishment of detention for three years. The determination of whether, if the offence was established, he was an adult or youth at the time of the offence, was referable to the date or date range on or within which it was said that the alleged offence of rape occurred. From the defendant’s point of view, he faced a real and substantial prejudice if tried as an adult. The punishment regime on any view was dramatically different. To apply the test posed by Bray CJ in Pfitzner,[31] the defendant faced “real prejudice” as a consequence. Other significant consequences also arose. Had the proceeding involved a trial in the Youth Court, it would have been by Judge alone with different provisions as to suppression, evidence and other matters. These matters are the subject of detailed discussion later in these reasons.
[31] The Queen v Pfitzner (1976) 15 SASR 171 at 186.
Section 57 Young Offenders Act
On the hearing of the appeal, it was contended that the question of jurisdiction should not have been addressed through questions to the jury. Attention was drawn to section 57 of the Young Offenders Act 1993 (SA).[32] It was argued that the Judge should have acted under this section. Whether or not this course was open to the Judge does not need to be decided in the present appeal. All members of the High Court in Thompson[33] considered that the taking of a special verdict was an appropriate procedure. In these circumstances, the process followed by the trial Judge in the present case, was open to him.
[32]Section 57 of the Young Offenders Act 1993 (SA) provides:
(1)A court, family conference, or police officer will, in determining the age of a person for the purpose of this Act, act on the best evidence or information that is reasonably available but, in the absence of any such evidence or information, may itself estimate the age of the person.
(2)If, in any proceedings before a court, it becomes apparent to the court that the person the subject of those proceedings should, by reason of age, be dealt with in some other court, the court may remand that person to appear in the appropriate court.
[33] Thompson v The Queen (1989) 169 CLR 1.
The Role of an Information
In Ayles,[34] Gummow and Kirby JJ set out the role fulfilled by an information in South Australia and traced the relevant statutory provisions and rules relating to informations and the amendment of informations in the following terms:
[34] Ayles v The Queen (2008) 232 CLR 410 at [20].
In South Australia, the information fulfils the same role as a presentment or indictment does in other States, and in South Australia the term does not exclusively connote summary proceedings. The history of the use of the information in summary proceedings to specify the alleged offence was traced by Jordan CJ in Ex parte Walker; Re Goodfellow. The centrality of the information to criminal procedure in South Australia may be seen in s 275(1) of the CLCA:
Any person may be put upon his trial at any criminal sessions of the Supreme Court or District Court, for any offence, on an information presented to the Court in the name and by the authority of the Director of Public Prosecutions.
Likewise, s 284(1) of the CLCA provides that it is the information to which the accused pleads guilty or not guilty, thereby initiating the trial:
Any person arraigned on any information who pleads not guilty thereto shall, by that plea, without any further form, be taken to have put himself upon the country for trial; and the court shall, in the usual manner, proceed to the trial of that person accordingly.
That is, it is upon the information that the criminal defendant is tried, and in conjunction with the defendant's plea it delimits the area of contest at the trial.
[Footnotes omitted - emphasis added]

Similar views were expressed by Hayne and Heydon JJ in WGC:[35]
It may readily be accepted that, as Callinan J said in Cheung v The Queen, counts in an information "should be framed with all such specificity as to time, place, and circumstance as is possible". As Callinan J pointed out in Cheung, identifying the time at which an offence occurred may be important in fixing punishment. Sexual offences against young persons may well provide examples of cases in which the criminality of an offender may be assessed differently according to the age of the victim. But the chief reason to insist upon specificity in the framing of counts in an information is to ensure a fair trial. It is for the prosecution to identify as precisely as possible the charge that is preferred against an accused person. And the particulars that are given of an offence are to be framed with that purpose at the forefront of consideration.
[Footnotes omitted - emphasis added]
[35] WGCv The Queen (2007) 233 CLR 66 at [127].
In Kirk v Industrial Relations Commission (NSW)[36] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ adopted the oft cited statement of Dixon J in Johnson v Miller[37] when explaining the rationale of requiring sufficient particularity:
The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge[38]. In John L Pty Ltd v Attorney-General (NSW)[39],it was explained that the older cases established that an information could be quashed as insufficient in law if it failed to inform the justices of both the nature of the offence and the manner in which it had been committed[40]. In more recent times the rationale of that requirement has been seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet[41]. The common law requirement is that an information, or an application containing a statement of offences, "must at the least condescend to identifying the essential factual ingredients of the actual offence"[42]. These facts need not be as extensive as those which a defendant might obtain on an application for particulars[43]. In Johnson v Miller, Dixon J considered that an information must specify "the time, place and manner of the defendant's acts or omissions"[44]. McTiernan J referred to the requirements of "fair information and reasonable particularity as to the nature of the offence charged"[45].
[36] Kirk v Industrial Relations Commission (NSW) (2010) 84 ALJR 154 at [26].
[37] Johnson v Miller (1937) 59 CLR 467 at 486.
[38] Johnson v Miller (1937) 59 CLR 467 at 489 (Dixon J).
[39] John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508.
[40] John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 at 519.
[41] John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 at 519.
[42] John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 at 520.
[43] De Romanis v Sibraa [1977] 2 NSWLR 264 at 291-292, referred to in John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 at 520.
[44] Johnson v Miller (1937) 59 CLR 467 at 486.
[45] Johnson v Miller (1937) 59 CLR 467 at 501; and see Smith v Moody [1903] 1 KB 56 at 60.
Amendments to an Information
If during the course of a trial, the evidence differs materially from the information as particularised, the usual course of action is the amendment of the information. The Court will, in the ordinary course, grant leave to amend unless the amendment cannot be made without causing material prejudice and consequent injustice.
In Ayles,[46] Gummow and Kirby JJ considered the situation of a variance between particulars and evidence and observed:
At common law, there was no power to amend an indictment otherwise than by returning it to the grand jury that found it; by contrast, and as explained by Lord Mansfield, an information (using the term in its historical sense) could be amended more readily, being framed by an officer of the Crown and not being found upon the oath of a grand jury. The inflexibility of the rules governing the technical requirements of indictments coupled with the extremely limited scope for amendment had a tendency, in the words of Sir James Fitzjames Stephen, to "mitigate, though in an irrational, capricious manner, the excessive severity of the old criminal law". Thus, prisoners might escape the consequences of their crimes by taking successful objections to the terms of the indictment presented against them.
Nineteenth century statutory reform in England to change this state of affairs culminated in the Indictments Act 1915 (UK). This modified the procedure for amendment of indictments. Section 5 of that Act, which is replicated in the law of each Australian State, found its way into the law of South Australia as s 281 of the CLCA, which is headed "Objections to informations, amendments and postponement of trial". The breadth of the range of permissible amendments under that section and its equivalents has often been emphasised in the case law. It may be accepted that an amendment to an information may add counts, substitute an applicable statutory offence for an inapplicable one, or vary the particularised dates of offending. The question, in the present case, is whether any such addition or substitution has been effected according to law.
Sub-section (2) of s 281 of the CLCA states:
When before trial, or at any stage of a trial, it appears to the court that any information is defective or that there is any variation between any particular stated therein and the evidence offered in proof thereof, the court shall make such order for the amendment of the information as the court thinks necessary to meet the circumstances of the case unless, having regard to the merits of the case, the required amendment cannot be made without injustice.
In the present case, the information as originally presented revealed both a "variation between any particular stated therein and the evidence offered in proof thereof", because the date of offending supported by the evidence was different from that particularised on the information, and a "defect", being the misdescription of the offence in question. The first matter was partially corrected by the amendment to the particulars made on the second day of the trial, although it remains to be seen whether the second attempt at amendment succeeded in completing the correction. Likewise, it remains to be seen whether the second matter (namely the misdescription of the offence) was effectively corrected by the purported amendment that is now in dispute on this appeal.
[Emphasis added]
[46] Ayles v The Queen (2008) 232 CLR 410 at [22]-[24].
In WGC Kirby J considered the significance of the failure of the prosecution to seek an amendment of an information or particulars:[47]
… In default of any amendment by the prosecutor of the information or of the particulars, the trial judge should have told the jury that, to find the appellant guilty it was necessary for them to be satisfied unanimously beyond reasonable doubt that the offences had happened in 1986 and that, for the purpose of reaching such verdicts, proof that the offences occurred in 1986 was an essential ingredient of the accusation which the prosecution had to prove. If, contrary to proper practice and the terms of the information and particulars, the judge permitted the prosecutor to rely on uncharged acts in 1989, it was then necessary for the judge to give like directions to the jury on the prosecutor's obligation to prove the 1989 offences beyond reasonable doubt and to reach their conclusion unanimously on that footing before proceeding to consider the defence which the appellant sought to raise, in that event, under s 49(4).
In the present proceeding no application was made to amend the particulars to the information.
[47] WGCv The Queen (2007) 233 CLR 66 at [69].
Jurisdiction: Materiality
In the circumstances of the present proceeding, although the focus of the argument on the hearing of the appeal concerned the issue of jurisdiction, the materiality of the date range particularised is a critical enquiry. This is illustrated by the decision of the High Court in Thompson.[48] In that case Gaudron J, when considering a challenge to jurisdiction and the applicable onus of proof, contrasted the circumstance where the jurisdictional issue, in that case - locality - was an element of the offence charged, with the circumstance where locality was no more than a jurisdictional fact. Gaudron J observed:[49]
…I wish to add only the observation that proof of jurisdiction is proof of the occurrence of some act or omission within the jurisdiction, that act or omission being selected by the law as the condition of its operation upon the acts or omissions said to constitute the offence charged. Locality, in this sense, may be contrasted with locality as an element of the offence charged, as, for example, in the case of an offence which is constituted by acts or omissions in a public place. In the latter case, locality is an essential element of the offence and as such may be decisive of criminality; in the former case, locality is decisive only of the operation of the law and of the jurisdiction of the courts charged with administering that law to enter judgment. The issue of jurisdiction is thus a discrete issue and distinct from the issue of guilt which depends upon the elements of the offence charged being made out.
[48] Thompson v The Queen (1989) 169 CLR 1 at 39.
[49] Thompson v The Queen (1989) 169 CLR 1 at 39.
A comparable issue arises in the present proceeding whether the defendant at the time of the offence was a youth or an adult. This question arises from a consideration of the date of the alleged incident. The specific question is whether the date of the alleged offence, as particularised, is a vital particular or merely a discrete issue. As a consequence, an enquiry as to materiality of the particularised date of the offending should be undertaken before considering the date range’s consequent impact on jurisdiction and the associated questions raised.
Materiality
The topic of the materiality of particulars to an information and whether such particulars need to be proved beyond reasonable doubt has been the subject of extensive judicial comment over many decades. This has arisen because of the real prejudice that defendants may face in criminal proceedings. The authorities address a multitude of different circumstances and, as a consequence, provide only general guidance.
In WGC, Kirby J recorded the general rule with respect to materiality:[50]
General rule: non-materiality: Generally, the date of an offence, whether specified in the formal document containing the charge or in separate particulars, is not treated as a material fact which the prosecution must prove beyond reasonable doubt in order to make good its accusation. So much was stated by Atkin J in R v Dossi, although his Lordship acknowledged that there were exceptions to the general rule:
From time immemorial a date specified in an indictment has never been a material matter unless it is actually an essential part of the alleged offence. "And although the day be alleged, yet if the jury finds him guilty at another day, the verdict is good, but then in the verdict it is good to set down on what day it was done, in respect of the relation of the felony; and the same law is in the case of an indictment" ... Thus, though the date of the offence should be alleged in the indictment, it has never been necessary that it should be laid according to truth unless time is of the essence of the offence. It follows, therefore, that the jury were entitled, if there was evidence on which they could come to that conclusion, to find the appellant guilty of the offence charged against him, even though they found that it had not been committed on the actual day specified in the indictment.
Because of the position at common law, there was in Dossi (as is often the case) no need to invoke the broad statutory powers of the kind commonly given to courts to amend indictments in the course of a trial.
…
Exceptional circumstances presented by the occasional difficulty of establishing the precise birth date of some alleged victims of such offences can be readily met. The issue of the age of the alleged victim is one of fact to be proved to the requisite satisfaction of the jury as an ingredient of the offence. Similarly, the appellant did not contest, nor could he, the length of the period of time encompassed in the particulars of the counts of the information (being the entire month of February). However, there must be limits to any such imprecision, given that the essential character of the offences provided for in s 49 vary by specific reference to the age of the alleged victim as at the date of the offence alleged by the prosecution. In some trials, the date of an offence may be immaterial. In the appellant's trial, from the start, it was not.
[Footnotes omitted]
[50] WGCv The Queen (2007) 233 CLR 66 at [43]-[44], [59].
A review of relevant authority allows the recording of a number of broad principles that assist in the determination of the issues arising on this appeal:
·The rule established for criminal trials in Australia is one which requires a high degree of specificity in the accusations, charges and evidence proffered by the prosecution.[51] The critical application of this rule is in relation to criminal pleadings.
[51] KRM v The Queen (2001) 206 CLR 221 at [96]. Kirby J observed:
The normal rule is that a person, accused of a criminal offence, is entitled to be informed not only of the "legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge". Unlike some other systems of criminal trial, that of the common law is disinclined to permit the conviction of an accused person upon "inexact proofs, indefinite testimony, or indirect inferences". In harmony with this fundamental postulate, the rule established for criminal trials in Australia is ordinarily one which requires a high degree of specificity in the accusations, charges and evidence proffered by the prosecution.
·There is a need for defendants to know the case which they have to meet, to be supplied with proper particulars and not to be confronted with a new case at trial.[52]
[52] R v Stringer (2000) 116 A Crim R 198 at [131] (Smart AJ).
·A defendant is entitled to be apprised not only of the legal nature of the offence charged, but also of the particular act, matter or thing alleged as a foundation of the charge.[53]
[53] Johnson v Miller (1937) 59 CLR 467 at 489, adopted by the High Court in Kirk v Industrial Relations Commission (NSW) (2010) 84 ALJR 154 at [26] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ).
·Primary reasons for adequate particularity are that the rules of procedural fairness are to be followed so that the defendant is able to prepare a defence so as to ensure a fair trial; that the jury will all reach a decision with respect to the same incident; and to avoid a conviction being bad for duplicity.[54]
[54] R v Liddy (2002) 81 SASR 22 at 94 (Mullighan J); S v The Queen (1989) 168 CLR 266 at 275, where Dawson J commented on the importance of specific allegations and emphasised that an accused is not to be prejudiced in providing a defence by the inability of the prosecution to observe the rules of procedural fairness:
The occasions upon which the offences alleged took place were unidentified and the applicant was, in effect, reduced to a general denial in pleading his defence. He was precluded from raising more specific and, therefore, more effective defences, such as the defence of alibi. Because the occasions on which he was alleged to have committed the offences charged were unspecified, he was unable to know how he might have answered them had they been specified. It is not to the point that the prosecution may have found it difficult or even impossible to make an election because of the generally unsatisfactory evidence of the complainant. An accused is not to be prejudiced in his defence by the inability of the prosecution to observe the rules of procedural fairness.
·One purpose of the dates in an information is to deliberately identify particular alleged acts which constitute the relevant crimes and to exclude all other occasions on which similar acts may have occurred constituting other crimes.[55]
[55] R v Stringer (2000) 116 A Crim R 198 at [34] (Adams J).
·The statutory regime dealing with the content of informations and the need for particulars are to be found in section 277(1) of the Criminal Law Consolidation Act 1935 (SA) and rule 4(3) in Schedule 3 of that Act.[56]
[56] See discussion in Ayles v The Queen (2008) 232 CLR 410 at [20]-[24].
·Ordinarily, there is a clear distinction drawn between the elements of an offence and particulars of it. Usually failure by the prosecution to prove a particular is not fatal to the prosecution case.[57]
[57] Environment Protection Authority v Sydney Water Corporation Ltd (1997) 98 A Crim R 481 at 484.
·Exceptions arising from statute have been acknowledged in many cases. For example, where a statute provides that an information for offences of the relevant kind is to be laid within a certain time frame, the date will be rendered material and part of the essence of the offence.[58]
[58] See for example Hackwill v Kay [1960] VR 632 at 634-635; see also WGC v The Queen (2007) 233 CLR 66 at [46] (Kirby J).
·Likewise, in sexual offences where the age of the alleged victim is an essential element of the charge, courts have concluded that allegations as to time may be rendered material.[59]
·The consequence of providing particulars is governed by the significance to be attached to them in the circumstances of the case. This requires attention to be given to the terms of any statutory provision stating the offence in question. It also requires attention to the way the particular trial was conducted.[60]
·In certain circumstances it would be prejudicial to the defendant for the prosecution to depart from its particulars or to seek to make out a case substantially different from that particularised.[61]
·Those circumstances may arise out of the nature of the evidence in a particular case, and may make it unfair or oppressive to an accused person for the prosecution to be permitted to depart from its particulars. Such circumstances may also arise from the manner in which the trial has been conducted.[62]
·Dates or date ranges in particulars of a charge are generally not to be regarded as an element of the offence or even as a material matter unless they are an essential part of the offence.[63]
·Time may be of the essence of the offence when an act is criminal only if done within a certain time of some other act or event. The following are examples: when it is an essential ingredient of a particular offence that certain consequences should follow a particular act; when it is an essential ingredient of a particular offence that the act alleged was committed between certain hours of the day or night, and; when the prosecution for a particular offence must be commenced within a certain time of the commission of the criminal act alleged.[64]
·Regardless of whether time is an element of the offence or of essence to the offence, the circumstances of the case, such as forensic issues raised at the trial, including alibi or lack of opportunity, may make the date vital.[65] In such circumstances, even though the particulars of when an offence is alleged to have been committed are not an element of the offence, the proof of the date or date range alleged may be material to the integrity of the criminal process. As Derrington J observed in Jacobs:[66]
Apart from the exceptions which have been mentioned, it is going too far to say that the time alleged in the indictment may become an element of the offence. Rather the correct view is that the nature of the allegations in the Crown case may be such that the prosecution is fixed to a certain date and it would be wrong to countenance any departure from that point when it is especially relevant to proof, alibi or the like.
[Emphasis added]
[59] See for example WGC v The Queen (2007) 233 CLR 66 at [47] (Kirby J).
[60] WGC v The Queen (2007) 233 CLR 66 at [45] (Kirby J).
[61] Environment Protection Authority v Sydney Water Corporation Ltd (1997) 98 A Crim R 481 at 484 (Gleeson CJ):
[T]here may be circumstances arising out of the nature of the evidence in a particular case, or manner in which the case is being conducted, which will make it unfair or oppressive to an accused person to permit the Crown to depart from its particulars. Subject to that qualification, however, what the Crown needs to establish in order to obtain a conviction are the essential facts alleged in the indictment or the summons. Failure to establish a particular is not fatal.
[62] See generally The Queen v Pfitzner (1976) 15 SASR 171.
[63] R v Dossi (1918) 13 Cr App Rep 158.
[64] R v Stringer (2000) 116 A Crim R 198 at [20]; Halsbury’s Laws of England, 4^th ed 2006 reissue, 11(3) at [1215].
[65] The Queen v Pfitzner (1976) 15 SASR 171 at 185. The following observations of Bray CJ have been cited with approval in many later authorities:
Whether the date alleged in an information is vital to the charge must depend on the circumstances. So long as it is clear that the controversy turns on the events of a certain occasion, it may not matter if the date of that occasion is misstated if the occasion itself is clearly identified and both parties have directed their cases towards it: cf Page v Butcher [1957] SASR 165. But obviously if a man is charged with committing an offence on Saturday and comes prepared with an alibi for Saturday, he cannot be convicted of committing the offence on Friday or Sunday, unless perhaps the information is amended and the trial adjourned to enable him to meet the new case. If authority is needed for so obvious a proposition, it will be found in Wright v Nicholson [1970] 1 WLR 142; [1970] 1 All ER 12; (1970) 54 Cr App R38.
[66] R v Jacobs [1993] 2 Qd R 541 at 544.

At trial counsel for the defendant said that there was no power to take a majority special verdict and that, in any event, the question of jurisdiction was to be decided beyond reasonable doubt and not on the balance of probabilities. As earlier observed, the argument in regard to the power to take a majority special verdict was not pressed on the appeal. However, as a question of the power of the Court has been raised, I consider that this Court should address the question.
Generally, a jury will be asked no more than to bring in a general verdict.[104] At common law a jury has always had the right to bring in a special verdict, but the judge has no power to compel them to do so.[105] At common law, special verdicts ought only to be found in the most exceptional circumstances.[106] This common law position has been eroded by statutes in a number of Australian states which not only empower the judge to ask questions of fact of the jury by way of statutory “special verdicts”, but mandate that the jury answer questions, which are permissibly put.[107]
[104] R v Bourne (1952) 36 Cr App Rep 125.
[105] Archbold, Criminal Pleading Evidence in Practice (2007) at para 4-465; Cunningham v Ryan (1919) 27 CLR 294 at 297-298; see also Mayor and Burgesses ofDevizes v Clark (1835) 111 ER 506.
[106] R v Bourne (1952) 36 Cr App Rep 125 at 127.
[107] See generally Otis Elevators Pty Ltd v Zitis (1986) 5 NSWLR 171.
A foundation of the jury system at common law is the right of the jury to bring in a general verdict. In Brown,[108] Barry J defined a “special verdict” in the following terms:
…special findings by the jury in answer to questions propounded by the Judge do not amount to the same thing as a special verdict. A special verdict is a finding by the jury of particular facts which raise a question of law, accompanied by a statement by the jury of their verdict in the light of the determination by the Court of the question of law.
[108] R v Brown [1949] VLR 177 at 183, adopted in Jackson v The Queen (1976) 134 CLR 42 at 53 (Murphy J). For further discussion see Otis Elevators Pty Ltd v Zitis (1986) 5 NSWLR 171; see also R v Spanos (2007) 99 SASR 487.
Special verdicts are recognised by section 354(3) of the Criminal Law Consolidation Act[109] in the context of the powers of the Full Court on appeal but, unlike some other States,[110] there is no specific statutory provision in this State for the taking of special verdicts. Accordingly, common law principles apply.[111]
[109] Section 354(3) of the Criminal Law Consolidation Act 1935 (SA) provides:
Where on the conviction of the appellant the jury has found a special verdict and the Full Court considers that a wrong conclusion has been arrived at by the court before which the appellant has been convicted on the effect of that verdict, the Full Court may, instead of allowing the appeal, order such conclusion to be recorded as appears to the Court to be in law required by the verdict and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law.
[110] See for example: Criminal Procedure Act 2004 (WA) section 113; Criminal Code 1899 (Qld) section 624; Criminal Code (NT) section 369; Supreme Court Act 1970 (NSW) section 90.
[111] R v Spanos (2007) 99 SASR 487 at 496 (Layton J, with whom Nyland J agreed).
Generally, a special verdict is constituted when the jury only finds the material facts, thus limiting the province of the jury, and leaving the judge to enter the conclusions that follow at law from those answers. Further and historically however, the term ‘special verdict’ has been used in the context of damages in civil cases, verdicts with respect to not guilty by reason of insanity, circumstances of aggravation, and jurisdiction.
A special verdict is not returned by the mere answering of questions.[112] In some proceedings a judge will ask a series of questions to which the jury can provide answers. Alone, the answers do not constitute a verdict, either general or special. The observations of O’Bryan J in Russell v Railways Commissioners[113] are apposite:
His Honour there appears to be using the expression “special verdict” as equivalent to answers to questions, but though the expression is, I think, sometimes used to cover answers to questions, mere answers to questions are not, in my opinion, a verdict at all.
I am fortified in the view which I have expressed by what was said by Griffith C.J. in Brown v Lizars, [1905] 2 CLR 837, at p 838, and by Dixon and Evatt JJ, in Edmond Weil Incorporated v Russell, [1936] 56 CLR 34, at pp 46, 47, and by Dixon J in McDonnell & East Ltd v McGregor, [1936] 56 CLR 50, at pp 55, 56.
The learned writer of the title “verdict” in the Encyclopaedia of the Laws of England, vol 12, distinguishes between a special verdict and a jury’s answers in a civil case to questions arising in the pleadings and put to them by the Judge.
As was pointed out by Dixon J in McDonnell & East Ltd v McGregor, even where the parties have agreed to specific questions, the strict course is to obtain, under direction, a general verdict in accordance with the finding and to enter judgment upon the verdict. But the formality of requiring the jury to return a verdict may be dispensed with if there be no objection.
It is quite clear that, with the consent of the parties to an action, which consent may be express or implied, the Judge may invite the jury to answer questions, the answers to which may entitle one or the other side to a verdict and judgment, though, even in such a case, the strictly correct course is then to direct the jury to bring in a general verdict for the party entitled thereto on the answers as given. When, in such a case, a general verdict is not taken, the parties and the jury are to be taken as agreeing to the Court recording that verdict which follows in law from their answers. But it is a very different case if one of the parties objects to questions being asked and demands a general verdict, and the jury then, not being instructed that it may return a general verdict, or how they should go about their deliberations on a general verdict, simply answer questions put to them and never finally return a general verdict. In such a case the jury’s answers are not, in my opinion, a verdict or a special verdict either at common law or by statute…
[112] Russell v Victorian Railways Commissioners [1948] VLR 118 at 131; R v Brown [1949] VLR 177 at 183.
[113] Russell v Victorian Railways Commissioners [1948] VLR 118 at 131-132.
It is noted that in a jury trial, a judgment cannot be entered unless a verdict precedes it.[114]
[114] Russell v Victorian Railways Commissioners [1948] VLR 118 at 128 (Gavan Duffy J); Phillips v Ellinson Bros Pty Ltd (1941) 65 CLR 221 at 228-229 (Rich J); Otis Elevators Pty Ltd v Zitis (1986) 5 NSWLR 171.
There has been considerable debate in the authorities over the proper characterisation of the posing of a special question to a jury or the taking of a special verdict. The authorities are replete with generalisations and a lack of clear discussion as to the difference between the two. Generally, when specific questions of fact alone are raised for the jury’s determination, the process is characterised as a special question. The mere answering of questions is not a special verdict because the ultimate fact, the guilt or innocence of the accused, must be capable of being found in a verdict.[115]
[115] R v Brown [1949] VLR 177.
Special verdicts and special questions were considered by this Court in Spanos.[116] In her reasons, Layton J drew the following propositions from the case law:
•An accused has a prima facie right to a general verdict, but a jury has the right to return either a general verdict or special verdict;[117]
•Whether by way of general verdict or special verdict, in criminal trials both types of verdict are directed to the ultimate issue, namely whether the accused is guilty or not guilty of the offence(s);[118]
•A special verdict, absent statutory provisions, arises in circumstances in which a jury, after making findings on specific facts, are uncertain as to whether such findings would, in law, amount to the offence.[119] A special verdict is thus a combination of jury findings accompanied by a verdict in the light of a determination made by the court as to the legal consequences of the findings.[120] In such a situation, the Judge directs a jury to return the relevant verdict, as a matter of the application of the law;
•There appears to be a difference between the application of special verdicts and special questions in criminal law, as distinct from civil law. In civil cases there is greater flexibility of their use than is the case in criminal law.[121] For example in defamation actions, questions may be directed to a jury to “elucidate subordinate questions of fact, the answers to which are component parts in the steps to be taken by the jury in performing its functions, on the way to reaching its general verdict”.[122] However, South Australia does not have civil jury trials;
•Whether a special verdict process applies is a question for the exercise of the trial Judge’s discretion. A court will rarely interfere with the exercise of that discretion and if it does, it should only be upon established grounds.[123]
[116] R v Spanos (2007) 99 SASR 487.
[117] Russell v Victorian Railways Commissioners [1948] VLR 118 at 121-122 (Gavan Duffy J), 130 (O’Bryan J); Cunningham v Ryan [1919] 27 CLR 294 at 297 (Isaacs J).
[118] R v Brown [1949] VLR 177 at 179 (Lowe J) and cases cited therein.
[119] R v Brown [1949] VLR 177 at 183; Russell v Victorian Railways Commissioners [1948] VLR 118 at 130.
[120] R v Brown [1949] VLR 177; Russell v Victorian Railways Commissioners [1948] VLR 118 at 130.
[121] See Otis Elevators Pty Ltd v Zitis (1986) 5 NSWLR 171.
[122] See Otis Elevators Pty Ltd v Zitis (1986) 5 NSWLR 171 at 183.
[123] See Otis Elevators Pty Ltd v Zitis (1986) 5 NSWLR 171 at 183.
In the present proceeding, the jury were asked two questions, the second of which related to the issue of jurisdiction. A written memorandum in the following terms was provided to the jury as an aide memoire:
Question 1
Are you satisfied beyond reasonable doubt that an act of sexual intercourse took place as alleged by the complainant?
If NO → Verdict (not guilty)
If YES → question 2
Question 2
Are you satisfied on the balance of probabilities that the accused was over the age of 18 years at the time?
If NO → no verdict required
If YES → Verdict (Guilty or not guilty)
The issues arising were further complicated by the manner in which the issues for determination by the jury were posed. It is convenient at this point to set out from the transcript what occurred:
ASSOCIATE:     In relation to question one, are you unanimously agreed upon your verdict?
FOREPERSON:    No.
ASSOCIATE:     Are 10 or more of you agreed upon your verdict for a majority verdict?
FOREPERSON:    Yes.
ASSOCIATE:     Are you satisfied beyond reasonable doubt that an act of sexual intercourse took place as alleged by the complainant?
FOREPERSON:    Yes.
ASSOCIATE:     Is that the verdict of 10 or more of you?
FOREPERSON:    Yes.
ASSOCIATE:     In relation to question 2, are you unanimously agreed upon your verdict?
FOREPERSON:    Yes.
ASSOCIATE:     Are you satisfied on the balance of probabilities that the accused was over the age of 18 years at the time?
FOREPERSON:    Yes.
ASSOCIATE:     Do you find the accused guilty or not guilty?
FOREPERSON:    Guilty.
ASSOCIATE:     Is that the verdict of you all?
FOREPERSON:    Yes.
HIS HONOUR:    Ladies and gentlemen, thank you very much for the obviously diligent approach that you have taken to a very important task that you’ve been given.
[COUNSEL PROSECUTION]:        Your Honour, did your associate actually say ‘On the charge of rape, do you find him guilty or not?’. I know that’s what we are all here for, but I do not think it was actually said.
HIS HONOUR:    Perhaps we had better do that.
ASSOCIATE:     In relation to the offence of rape, do you find the accused guilty or not guilty?
FOREPERSON:    Guilty.
ASSOCIATE:     Is that the verdict of you all?
FOREPERSON:    Yes.
HIS HONOUR:    As I was saying, thank you for the very important role that you have played in the administration of justice. The jury forms an essential part of our system of justice and I appreciate that you have been required to give up a great deal of your time. I’m not sure whether there are any further matters.
…
[COUNSEL PROSECUTION]:        I don’t mean to be a stick in the mud here but the first question, ‘Are you satisfied beyond a reasonable doubt that an act of sexual intercourse took place as alleged by the complainant’ was a majority verdict?
HIS HONOUR:    Yes.
[COUNSEL PROSECUTION]:        And I think what needs to be put to the jury ‘On the question of the charge itself, firstly, are you unanimous in your verdict?’.
HIS HONOUR:    That was put?
[COUNSEL PROSECUTION]:        I don’t know that that was actually asked.
HIS HONOUR:    We will ask it again.
[COUNSEL PROSECUTION]:        I’m sorry, I just want to be clear, in case there is some complaint about this at some other time.
FOREPERSON:    We didn’t give unanimous.
[COUNSEL PROSECUTION]:        I wonder if we could clear that up as to the verdict itself.
HIS HONOUR:    We might take that again.
ASSOCIATE:     Members of the jury, in relation to the offence of rape, are you unanimously agreed upon your verdict?
FOREPERSON:    No.
ASSOCIATE:     Are 10 or more of you agreed upon your verdict for a majority verdict?
FOREPERSON:    Yes.
ASSOCIATE:     Sorry, in relation to the offence of rape, do you find the accused guilty or not guilty?
FOREPERSON:    Guilty.
It is to be observed that the answer given by the jury to question one is not determinative of guilt. It leaves open the possibility of the bringing in of a general verdict. Thus, the answer to the question is not a verdict. It represents a factual finding that may then lead to a verdict. On analysis of the above authorities, the answer to question one was not the bringing in of a special verdict, but the mere answer to a special question.
The second question asked of the jury in the present proceeding “are you satisfied on the balance of probabilities that the accused was over the age of 18 years at the time”, is again, in my view, a special question being asked of the jury. This question addresses a fact that may be described as a jurisdictional fact. It does not represent a special verdict in itself.
Section 57 of the Juries Act 1927 (SA) provides for majority verdicts and is in the following terms:
(1)     Subject to subsection (2), where a jury, having retired to consider its verdict, has remained in deliberation for at least 4 hours and the jurors have not then reached a unanimous verdict—
(a)if a sufficient number agrees to enable the jury to return a majority verdict—a majority verdict will be returned; but
(b)     otherwise—the jury may be discharged from giving a verdict.
(2)     No verdict that an accused person is guilty of murder or treason can be returned by majority.
(4)     In this section—
majority verdict means—
(a)where the jury, at the time of returning its verdict, consists of 12 jurors—a verdict in which 10 or 11 jurors concur;
(b)where the jury, at the time of returning its verdict, consists of 11 jurors—a verdict in which 10 jurors concur;
(c)where the jury, at the time of returning its verdict, consists of 10 jurors—a verdict in which 9 jurors concur,
and by majority has a corresponding meaning.
Majority verdicts are a creature of statute. The common law requires that a jury verdict be unanimous, and this requirement extends to Commonwealth offences.[124] In some states in Australia there is provision for a jury to bring in a majority verdict, but the conditions in which such a verdict can be taken differ from state to state.
[124] Cheatle v R (1993) 177 CLR 541 where it was held that section 80 of the Commonwealth Constitution adopts the common law requirement of unanimity.
It is to be noted that the way in which the jury were invited to answer the special questions and to return their general verdict raises further matters of considerable difficulty. As excerpted above, the first question posed to the jury was in the following terms: “Are you satisfied beyond reasonable doubt that an act of sexual intercourse took place as alleged by the complainant?”. Posing the question in these terms raises ambiguity and difficulty. The wording of the question does not specify the extent of the allegation. The complainant alleged that an act of sexual intercourse took place, in a particular manner, at a particular location, accompanied by particular circumstances and during a varying date range. Were the jury to understand the question to include the issue of consent? The allegations of the complainant by the end of his evidence encompassed a date range extending over a period of some four years, encompassing a time when the defendant was under the age of 18 years. The terms of the question put to the jury did not refer to the date range appearing in the particulars to the information.
The terms of question two also raise ambiguity and difficulty. That question was in the following terms: “are you satisfied on the balance of probabilities that the accused was over the age of 18 years at the time?”. An immediate difficulty is to understand the reference to “at the time”, when it is to be recalled that the particulars refer to a date range over a possible three years, but the complainant’s evidence extended that period to almost four years.
It is clear that the Judge posed these questions as special questions for the jury on which answers were sought. The Judge did not seek special verdicts, despite referring to them as such. This leads to the further difficulty as to the taking of the majority decision on a special question.
The provisions in South Australia for the taking of majority verdicts represent an erosion of common law rights otherwise protected by section 80 of the Constitution, and as a consequence, applying conventional principles of statutory construction, a narrow interpretation would be accorded to the statute. The posing of a special question is not the seeking of a verdict. It represents the exercise of common law powers, and in these circumstances, the obtaining of a majority opinion was not open.[125]
[125] Cf Archbold Criminal Pleading Evidence and Practice, 2007, when considering section 17 of the Juries Act 1974 (UK), a practice direction is extracted, and relevantly provides, at [4-433 - 4-434]:
Section 17 will, of course, apply also to verdicts other than “Guilty” or “Not Guilty”, e.g. to special verdicts under the Criminal Procedure (Insanity) Act 1964, verdicts under that Act as to fitness to be tried, and special verdicts on findings of fact. Accordingly in such cases the questions to jurors will have to be suitably adjusted.
It is my conclusion that there was no power in the Court to accept the return by the jury of a majority answer to the special questions and to proceed to act on a majority answer to the first question. It follows that for this reason the trial miscarried and the conviction recorded should be set aside.
A Further Matter
The defendant raised one further matter of complaint in the following terms:
There is an appreciable risk of a miscarriage of justice having occurred in relation to the jury being asked to give a special verdict by reason of:
the jury misunderstanding question 1; and/or
the participation in and agreement to a unanimous verdict in relation to question 2 by that juror or those jurors who formed the minority in relation to question 1.
In the present proceeding, question two is directly linked to question one, by the words “at the time”. There is an inconsistency between the majority answer to question one and the unanimous answer to question two. The minority of one or two jurors who did not answer question one in the affirmative acted inconsistently when they answered question two in the affirmative. This was in direct contravention of the direction of the trial Judge in summing up, that this should not happen. The Judge directed the jury as follows:
In considering that preliminary issue, therefore, and in determining whether you are satisfied that the accused was over the age of 18 years, you will need to consider whether you are satisfied beyond reasonable doubt that the event took place at all. That is so, because if you are not satisfied beyond reasonable doubt that an act of intercourse took place at all it would not be possible for you to make any finding as to whether the accused was over the age of 18 years at the time.
So, you will need to consider whether, on all the evidence, you are satisfied beyond reasonable doubt that an act of intercourse took place. You will then need to consider whether on all the evidence you are satisfied that at the time the accused was over the age of 18 years.
[Emphasis added]

One explanation for the inconsistency may lie in the minority of one or two who did not answer question one in the affirmative, approaching question two hypothetically and asking themselves if I did think that sexual intercourse took place as alleged, was the accused over 18 at the time? However, it is unlikely that this is the explanation, having regard to the explicit direction of the trial Judge as identified above. Another possible explanation for the inconsistent answers may be found in the invitation to the jury to consider each question against a different onus of proof.
The question of inconsistency of verdicts was discussed by the High Court in MacKenzie,[126] where Gaudron, Gummow and Kirby JJ observed:
The argument that two or more jury verdicts are inconsistent (or, as sometimes described repugnant or illogical) ordinarily arises, in the context of criminal trials, when it is suggested that a conviction resting upon one of the verdicts is thereby demonstrated to be unsafe or unsatisfactory. In civil trials, the problem of inconsistency or incompatibility has often arisen where special verdicts are taken on questions, resulting in the argument that the respective answers cannot logically stand together. Faced with submissions of inconsistency between jury verdicts, courts must reconcile their commitment to conflicting objectives. On the one hand, there is the respect due to the jury as the "constitutional" tribunal for resolving disputed factual questions. This principle is reinforced by the determination of the courts not to permit interrogation of juries as to their grounds for decision. The verdict, accepted in open court, is sufficient. Of its nature, it cannot and does not expose the reasoning of the jury. For reasons of history, institutional integrity and finality of trials, courts have long been reluctant to undermine jury verdicts or to infer from them that the jurors, drawn from the community, have done otherwise than their duty as committed to them by law .
On the other hand, whilst ordinarily a jury is as inscrutable as the Sphynx, sometimes, by a series of verdicts or, where permitted, answers to questions posed by the judge, there is placed on the public record an insight into the jury's thinking. This does not arise unlawfully or irregularly. If the result of this insight is to cast doubt upon the verdict under consideration, because logically it cannot stand together with another verdict, the court is then confronted by a problem of justice. The high respect paid to jury verdicts is reinforced by a general appreciation of their usual correctness. However, where, in a particular case, doubt is cast upon the verdict, an appellate court, invited to do so, must determine whether it should intervene. In a criminal appeal, it must decide whether the conviction based upon the verdict which is impugned is unsafe or unsatisfactory.
[Footnotes omitted]
[126] MacKenzie v The Queen (1996) 190 CLR 348 at 365.
The answers to question one and two display confusion on the part of the jury as to the proper approach to be taken to their function in answering the special questions, and there exists an internal inconsistency between these answers. Whether or not such an inconsistency can justify interference with a general verdict was discussed by the New South Wales Court of Appeal in Otis Elevators Pty Ltd v Zitis.[127] The Court held that despite not being able to “wish away” the answers the jury gives to questions, unless the questions are left to the jury in summing up and the answers thereto are inconsistent with the general verdict, the general verdict will not be set aside. McHugh JA relevantly observed:[128]
In my opinion a general verdict cannot be set aside as the result of a jury's answer to a question unless the question was one of those left to the jury in the summing-up: Arnold v Jeffreys; Mack v Elvy; Barnes v Hill. Moreover, the answer to the question must be necessarily inconsistent with the general verdict. I do not think that it is enough that the answers are or may be inconsistent with each other unless the answer on which the appellant relies is also necessarily inconsistent with the general verdict. No case establishes that a new trial should be ordered because answers are inconsistent with each other but not with the verdict. The whole of the jury's process of reasoning is not exposed. Inconsistency in answers per se establishes no more than the jury would appear to have made a mistake in reaching its verdict. Since ex hypothesi the error is not inconsistent with the verdict, no new trial need be ordered.
[127] Otis Elevators Pty Ltd v Zitis (1986) 5 NSWLR 171.
[128] Otis Elevators Pty Ltd v Zitis (1986) 5 NSWLR 171 at 203.
Although there may be no ultimate inconsistency with the general verdict, these matters together with my earlier conclusions, lead in my view, to the appeal being allowed.
Conclusion
Having regard to the foregoing reasons I would allow the appeal, set aside the conviction and remit the matter to the District Court. It would then be open to the Director of Public Prosecutions to decide what course should be taken with regard to the further prosecution of this information.
ANDERSON J. I agree that the appeal should be dismissed for the reasons given by Bleby J.