R v B, L K - [2016] SADC 92

District Court of South Australia
(Criminal)
R v B, L K
[2016] SADC 92
Reasons for Ruling of His Honour Judge Beazley (ex tempore)
27 July 2016
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - PRIMA FACIE CASE OR CASE TO ANSWER
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
Ruling upon submission by the accused, at the close of the case for the prosecution, that he has no case to answer in respect of the charge of Persistent Sexual Exploitation of a Child - discrete submission of law. Accused submitted that upon his construction of s 50 of the Criminal Law Consolidation Act 1935 (SA), 'an act of sexual exploitation' is one that cannot be particularised.
As the four acts alleged by the prosecution were all particularised, the accused submitted that they could not constitute acts of sexual exploitation.
Held: Submission of no case to answer is rejected.
Criminal Law Consolidation Act 1935 (SA) ss 50(1), 50(2), 50(4)(a), (b) & (c), 50(5) and 50(7); The Second Reading Speech of the Attorney General as to the Criminal Law Consolidation (Rape and Sexual Offences) Amendment Bill (House of Assembly Hansard 25/10/2007) pp 1468, 1473-1474, referred to.
S v The Queen (1989) 168 CLR 266; R v SLJ (2010) 24 VR 372; R v C, G (2013) 117 SASR 162; KRM v The Queen (2001) 206 CLR 221; R v Johnson [2015] SASCFC 170; R v Little [2015] SASCFC 118; R v M, BJ (2011) 110 SASR 1; KBT v The Queen (1997) 191 CLR 417; R v T, WA (2014) 118 SASR 382; R v Livingstone (2011) 109 SASR 380; R v Bilick & Starke (1984) 36 SASR 321, discussed.

R v B, L K
[2016] SADC 92
Introduction

The accused is charged with one count of Persistent Sexual Exploitation of a Child, pursuant to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (the Act).
At the close of the case for the prosecution, on 27 July 2016, counsel for the accused, Ms Luu, submitted that there was no case to answer.
The submission was restricted to a discrete point of law, namely the proper construction of s 50 of the Act and, in particular, ‘an act of sexual exploitation’.
The submission raises an important question of law, namely whether the prosecution must proceed with charges for sexual offences when those charges are fully particularised, rather than a general charge such as that in s 50(1) of the Act.
I delivered brief ex tempore reasons for rejecting that submission, and the trial proceeded.
At the request of the solicitor for the accused, I detail the reasons for that determination.
The charge
The accused was arraigned on an Information presented on 26 July 2016. He pleaded not guilty to the sole count of Persistent Sexual Exploitation of a Child. The specific charge and the particulars to that charge (as amended) are:
Statement of Offence
Persistent Sexual Exploitation of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935.)
Particulars of Offence
[LKB], over a period of not less than three days between the 22^nd day of January 2000 and the 31^st day of July 2002 at Baudin Beach, and Browns Beach, committed more than one act of sexual exploitation of [MB], a person under the age of 17 years.
It is further alleged that the conduct comprising the ongoing acts of sexual exploitation included:
(a)inserting his finger or fingers into [MB’s] vagina, on more than one occasion;
(b)licking [MB’s] vagina, on one occasion;
(c)attempting to insert his penis into [MB’s] vagina on one occasion;
(d)touching [MB] on the vagina on one occasion.
The prosecution opening
In her opening address to the jury, counsel for the prosecution had identified four specific events at which, it would be alleged, one or more of the specific acts of sexual exploitation had been committed by the accused. They were identified as a piggyback ride; in the accused’s kitchen; in the accused’s bedroom; and at an event at Browns Beach:
·The piggyback incident was particularised as the first of these events, which had occurred when MB was aged five years and on an occasion when a barbecue was taking place at her mother’s home at Baudin Beach. The alleged act of sexual exploitation was a finger being placed in MB’s vagina.
·The kitchen incident was particularised as the accused pulling off MB’s pants, touching her on the vagina and placing his finger or fingers inside her vagina.
·The bedroom incident was particularised as having occurred about 12 months after the kitchen incident, at which time the accused had placed MB on his bed, licked her on the vagina and tried to place his penis inside her vagina.
·The Browns Beach incident was particularised as touching her on the vagina, at a time when MB had accompanied her mother, the accused and other family members on a camping trip.
The evidence from the complainant as to the four alleged acts
There were some significant inconsistencies between the particulars on the Information, the prosecution opening and her statements made out of court, on the one hand, and the evidence of the complainant in court, on the other.
In 2002, she had provided a statement to the police in very limited terms as to the alleged incident involving the piggyback ride, which had occurred two years previously; the kitchen incident; and the bedroom incident. She had made no mention of the Browns Beach incident until a few days before the commencement of this trial. She explained that it was not until 2012 that she had some ‘flashbacks’ which had enabled her to give further detail as to the first three events.
In her evidence, she made no mention of the accused having attempted to place his penis into her vagina in respect of the bedroom incident, or at all. There was therefore no evidence at all of that alleged act of sexual exploitation.
I repeat that the Browns Beach alleged incident was brought to the attention of the police a few days before trial. In her evidence, she asserted that the accused had placed his finger inside her vagina.
That evidence was inconsistent with what she had told the police, namely that he did not insert his finger in her vagina. This version was also inconsistent with the prosecution opening, and the particulars on the Information.
The Act
In order to appreciate the submissions of the accused, it is necessary to set out the relevant terms of s 50 of the Act.
50—Persistent sexual exploitation of a child
(1)An adult person who, over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age is guilty of an offence.
Maximum penalty: Imprisonment for life.
(2)For the purposes of this section, a person commits an act of sexual exploitation of a child if the person commits an act in relation to the child of a kind that could, if it were able to be properly particularised, be the subject of a charge of a sexual offence. [My emphasis]
(3)     If—
(a)     at any time when an act of sexual exploitation of a child was allegedly committed the child was at least 16 years of age; and
(b)     the defendant proves that he or she believed on reasonable grounds that the child was of or over the prescribed age at that time,
the act of sexual exploitation is not to be regarded for the purposes of an offence against this section.
(4)Despite any other Act or rule of law, the following provisions apply in relation to the charging of a person on an information for an offence against this section:
(a)     subject to this subsection, the information must allege with sufficient particularity— [My emphasis]
(i)the period during which the acts of sexual exploitation allegedly occurred; and
(ii)    the alleged conduct comprising the acts of sexual exploitation;
(b)     the information must allege a course of conduct consisting of acts of sexual exploitation but need not—
(i)allege particulars of each act with the degree of particularity that would be required if the act were charged as an offence under a different section of this Act; or
(ii)identify particular acts of sexual exploitation or the occasions on which, places at which or order in which acts of sexual exploitation occurred;
(c)     the person may, on the same information, be charged with other offences, provided that any sexual offence allegedly committed by the person—
(i)in relation to the child who is allegedly the subject of the offence against this section; and
(ii)during the period during which the person is alleged to have committed the offence against this section,
must be charged in the alternative.
(5)A person who has been tried and convicted or acquitted on a charge of persistent sexual exploitation of a child may not be convicted of a sexual offence against the same child alleged to have been committed during the period during which the person was alleged to have committed the offence of persistent sexual exploitation of the child.
(6)     …
(7)     In this section—
…
sexual offence means—
(a)     an offence against Division 11 (other than sections 59 and 61) or sections 63B, 66, 69 or 72; or
(b)     an attempt to commit, or assault with intent to commit, any of those offences; or
(c)     a substantially similar offence against a previous enactment.
(8) …
The accused’s submissions
Ms Luu directed her submissions, principally, to s 50(2) of the Act, and, in particular, to the construction of the words ‘an act of sexual exploitation of a child’. It is plain that one of the elements of the offence to be proved by the prosecution is that the accused had committed more than one act of sexual exploitation (as defined).
She submitted that there is clearly a distinction between ‘an act of sexual exploitation’, on the one hand, and a ‘sexual offence’, on the other. The latter is defined in s 50(7) of the Act as an offence against Division II of the Act, whereas, in s 50(2), an ‘act of sexual exploitation’ is one that could, if it were properly particularised, be the subject of a ‘sexual offence’.
She submitted that as the four acts which are relied upon by the prosecution are properly particularised as to location, the type of act and her age at the time, they could be the subject of a ‘sexual offence’. Accordingly, they could not be acts of sexual exploitation for the purpose of s 50(1) of the Act.
She referred to s 50(4)(c) of the Act in aid of her submission, noting that Parliament had enabled the Director of Public Prosecutions to specifically charge, as alternatives, those offences which can be particularised.
She also referred to the Second Reading Speech of the Attorney-General in respect of the charge of Persistent Sexual Exploitation of a Child, in which it was said:[1]
The current offence of persistent sexual abuse was enacted to overcome problems such as those identified by the High Court in the case of S v The Queen and by the South Australian Court of Criminal Appeal in R v S … Because the evidence given of the alleged course of conduct was not sufficiently related to the particular charges, in that the child could not identify particular occasions and link them with particular counts, an appeal against conviction was allowed, and an acquittal entered …
The new offence has the same aim as the current offence: to punish the persistent sexual abuse of a child, and not just the sexual acts that can be identified with enough particularity to be charged as specific offences in themselves …
The new offence focusses on acts of sexual exploitation that comprise a course of conduct (persistent sexual exploitation) rather than a series of separately particularised offences …
The Bill provides that those parts of the course of conduct that can be charged as specific offences against the Act may be charged on the same information as the charge of persistent sexual exploitation of a child, as alternatives to that charge. Importantly, it prevents a person who is convicted of a charge of persistent sexual exploitation being convicted or punished for the same conduct twice. [My emphasis]
[1] The Criminal Law Consolidation (Rape and Sexual Offences) Amendment Bill 2007 (Hansard – House of Assembly), 25/10/2007 pp 1468, 1473-1474.
Ms Luu submitted that as the Director of Public Prosecutions could have charged the four acts as ‘sexual offences’, it follows that they could not be ‘acts of persistent sexual exploitation’. She submitted that this construction was consistent with the decision of the Court of Criminal Appeal in R v C, G.[2]
[2] (2013) 117 SASR 162.
Discussion
In KRM v The Queen,[3] Kirby J described similar legislation to that in s 50(1) of the Act as designed to overcome the problem, ‘even impossibility, in most cases of repeated sexual offences committed by an adult against a person when a child, for the victim of such offences to remember, and to be able to particularise, the dates or exact circumstances involved.’
[3] (2001) 206 CLR 221
The scope and effect of s 50(1) of the Act has been the subject of a number of decisions of the Court of Criminal Appeal in recent times. In particular, in R v Johnson,[4] the Court noted a number of difficulties with the subject section. The Court said, at [2]:
The section has been the subject of judicial interpretation … If the evidence rises no higher than a general statement such as that given in this case, even though the jury may be satisfied that there occurred numerous acts of sexual exploitation over a number of years, but it is impossible to identify two or more acts so that the conclusion can be reached that the jury, either unanimously or by majority, agreed on the same two or more acts, then the defendant is entitled to an acquittal. As the reasons of Peek J demonstrate, the operation of s 50 of the CLCA can produce the perverse paradox that the more extensive the sexual exploitation of a child, the more difficult it can be proving the offence …
The Act, as interpreted in Little[5] and M, BJ,[6] requires the jury to be satisfied of the same two or more acts … the provision, as it exists in South Australia, in our view, does not reflect the intention of the legislature, as indicated in the Second Reaching Speech.
We consider that if it is the intention of the legislature to create an offence of persistent sexual exploitation involving the maintenance of a sexual relationship with a child, then consideration should be given to amending s 50 along similar lines to the Queensland provision.
[4] [2015] SASCFC 170.
[5] R v Little [2015] SASCFC 118.
[6] R v M, BJ (2011) 110 SASR 1.
In R v C, G (supra) a different coram distinguished s 50(1), from the Queensland provision, noting that s 50(1) did not require the particularity of that identified by the High Court in KBT v The Queen.[7]
[7] (1997) 191 CLR 417.
At [82]-[83] the Court said:
The defendant submitted that in order to find an offence contrary to section 50 of [the Act], it was necessary … to identify, and the Judge to find, either the date on which the separate sexual offences were committed or alternatively the occasion with sufficient particularity to separate each occasion from the other. We reject that contention. It is contrary to the express provisions of section 50(4)(b) [of the Act] as earlier extracted.
It was necessary for the evidence to establish, and the Judge to find, acts comprising sexual offences committed over a period of not less than three days. The Judge did this by identifying specific types of acts in each case … It was not necessary that the evidence establish, or the Judge find, specific, uniquely identified occasions on which those acts took place.
[My emphasis]
To similar effect is the decision in R v T, WA.[8]
[8] (2014) 118 SASR 382.
In none of those cases was the subject question of construction directly addressed.
Those cases, of course, were concerned with whether there was a need for more particularity. They are to be contrasted with the accused’s submission that if the acts are fully particularised, then the Director of Public Prosecutions cannot treat them as acts of ‘sexual exploitation’ but must proceed with them as ‘sexual offences’.
In R v Livingstone,[9] Vanstone J, with whom White and Kelly JJ concurred, said at [26]-[29]:
In discussing the nature of the charge the judge correctly noted that the section creating the offence does not require each act of sexual exploitation to be particularised to the extent that would be necessary were that act charged as a specific offence under a different section.
In relation to this count the learned trial judge seems to have taken the view that because the first two occasions of sexual assault claimed by V could have been particularised to the extent required by s 56 [of the Act] those two acts stood outside the terms of the charge … During the appeal hearing the court was told that this analysis was not part of any submission of the prosecution and neither was it a position taken by the defence ... those two acts was quite specific and … could have been the subject of charges of indecent assault ...
In any event, the point I wish to make is that, if the judge took the view that an ability to fully particularise an incident meant that such an incident could not form part of the conduct comprising the acts of sexual exploitation for the purpose of s 50, then I respectfully disagree with him. In my view there is no reason why a charge against s 50 cannot be made up of conduct which can be adequately particularised as well as conduct which cannot. [My emphasis]
[9] (2011) 109 SASR 380.
While the comments by her Honour were clearly obiter dicta, in my opinion they are not merely persuasive but, with respect, clearly correct.
In the subject case, the accused submits that all of the conduct is adequately particularised, and therefore it is distinguishable from the facts in Livingstone’s case. The subject case is one which has the common feature of difficulty in remembering the timing of events with great clarity. The evidence was that the complainant’s family moved house on many occasions over a short period. The Browns Beach event only came to light a few days before trial after a delay of 14 years. It is an example where a complainant appears to provide further particulars of an event.
I do not accept that a charge of Persistent Sexual Exploitation of a Child laid on an Information, when little detail is available, stands to be dismissed because more information is remembered at trial. Clearly, some particularity is required, as detailed in s 50(4)(a) and (b) of the Act, and in R v Johnson (supra).
Section 50(2) does not expressly provide that particularised acts must be the subject of a charge of a sexual offence. It simply provides that it could be. There is, in my opinion, no basis to apply the maxim generalia specialibus non derogant to limit the scope of s 50(1) to only acts which cannot be adequately particularised.
It is, with respect, one thing to say that not enough particularity is provided, while it is quite another thing to say that too much particularity is provided. Further, while an act of sexual exploitation may be insufficiently particularised to constitute a sexual offence, it does not follow that a sexual offence does not also constitute an act of sexual exploitation. It may indeed be the quintessential act of sexual exploitation. At the trial of a delayed or historical charge, the evidence may turn out to be stronger such as to prove a sexual offence, or be weaker so that it would not make out a sexual offence if it had been charged in the alternative.

In my opinion, the prosecution can elect to proceed either with specific charges, or pursuant to s 50(1). In the event that an accused is acquitted, that is the end of the matter pursuant to s 50(5) of the Act. This issue is most likely to arise in the case of multiple acts in an historical setting. In the majority of cases, the prosecution will proceed with specific sexual offences, because of the hurdles in s 50(1) where a jury must be agreed as to the two specific acts and that they were committed not less than three days apart.
Conclusion
In my opinion, the submission of no case to answer on this discrete point must be rejected. I make no comment as to the state of the evidence in this trial, in light of the aforementioned inconsistencies.[10]
[10] R v Bilick & Starke (1984) 36 SASR 321.