R v DU
[2018] ACTSC 281
•12 October 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v DU |
Citation: | [2018] ACTSC 281 |
Hearing Date: | 3 August 2018 |
DecisionDate: | 12 October 2018 |
Before: | Burns J |
Decision: | See [70]-[71] |
Catchwords: | CRIMINAL LAW – whether the indictment filed by the Crown results in double jeopardy – whether this Court can and should take steps to rectify that situation CHILD SEXUAL OFFENCES – Committed for trial on six charges of engaging in sexual intercourse with a young person who was under the applicant’s special care – ex officio charge alleging that the applicant maintained a sexual relationship with the young person – six acts which form the basis of the charges under s 55A of the Crimes Act 1900 (ACT) are the same six acts which the Crown relies upon as the basis for the charge under s 56 of the Crimes Act – application for a stay STATUTORY INTERPRETATION – interpretation of subsections 56(8) and (9) – legislative history – s 92EA of the Crimes Act 1900 (ACT) – legislature sought to address common law requirement that offences be particularised to an extent that may make prosecution of child sexual offences problematic – whether the previous offence permitted the prosecution to proceed on a charge of maintaining a sexual relationship and specific charges based upon the same alleged acts – consideration of other jurisdictions – issue estoppel – Model Provision recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse - difficulty prosecution authorities experience in prosecuting cases of persistent sexual abuse of children – introduction of persistent child sex abuse offences HUMAN RIGHTS – Human Rights Act 2004 (ACT) s 24 – “an offence” – whether the term is to be construed narrowly or to be given a broader interpretation – European jurisprudence COMMON LAW – pleas in bar – autrefois convict – autrefois acquit – availability of a stay of proceedings in appropriate cases to prevent abuse of process or double punishment |
Legislation Cited: | Crimes Act 1900 (ACT) ss 55A, 56, 92EA (repealed), pt 3 Crimes Act 1900 (NSW) ss 33, 110 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, (entered into force 23 March 1976) 999 UNTS 171, Article 14(7) |
Cases Cited: | Franz Fischer v Austria (European Court of Human Rights, Third Section, Application No 37950/97, 29 May 2001) |
Texts Cited: | Commonwealth, Royal Commission Royal Commission into Institutional Reponses to Child Sexual Abuse, Criminal Justice Report (2017) Explanatory Statement, Crimes Legislation Amendment Bill (No 2) 2017 (ACT) |
Parties: | DU (Applicant) The Queen (Respondent) |
Representation: | Counsel Mr K Archer (Applicant) Mr J White (Respondent) |
| Solicitors Capital Lawyers (Applicant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCC 15 of 2018 |
BURNS J:
The issue in the present application is whether the indictment filed by the Crown results in double jeopardy to the applicant and, if so, whether this Court can and should take steps to rectify that situation. As was observed in Pearce v The Queen [1998] HCA 57; 194 CLR 610, the term ““double jeopardy” is not always used with a single meaning”. The present case is no exception; in the present case the applicant complains of being in jeopardy of being charged twice with the same offence (double prosecution) and of being punished twice for the same offence (double punishment).
The applicant, DU, was committed for trial on 9 February 2018 on six charges of engaging in sexual intercourse with a young person (BT) who was under the applicant’s special care, contrary to s 55A of the Crimes Act 1900 (ACT) (Crimes Act). Each such charge alleged an offence on a specific date within the period commencing 15 March 2017 and ending 31 March 2017.
On 22 March 2018 the Crown filed an indictment containing multiple charges, including the six charges under s 55A on which the applicant was committed for trial. For convenience, I will refer to these charges as the specific offences. The indictment contains other charges. Of particular relevance to the present application is Count 1, an ex officio charge alleging that between 26 February 2017 and 31 March 2017 the applicant maintained a sexual relationship with BT, she being a person of 16 years of age and under his special care.
Count 1 is a charge contrary to s 56 of the Crimes Act, which presently provides:
56 Maintaining sexual relationship with young person or person under special care
(1)A person who is an adult and who maintains a sexual relationship with a young person or a person under the special care of the adult is guilty of an offence.
Maximum penalty: imprisonment for 25 years.
(2) For subsection (1), an adult maintains a sexual relationship with a young person or a person under the special care of the adult if on 2 or more occasions and over any period the adult engages in a sexual act with that person.
(3) For subsection (2)—
(a) the period, or any part of the period, may be before the amendment day; and
(b) 1 or more of the sexual acts may have occurred before the amendment day.
(4) For a person to be convicted of an offence against subsection (1), the trier of fact must be satisfied beyond reasonable doubt that a sexual relationship existed.
(5) However, in a proceeding for an offence against subsection (1), there is no requirement for—
(a) the prosecution to allege the particulars of a sexual act that would be necessary if the act were charged as a separate offence; or
(b) the trier of fact to be satisfied of the particulars of a sexual act that it would need to be satisfied of if the act were charged as a separate offence if the trier of fact is satisfied the nature and character of a person’s conduct was consistent with a sexual act; or
(c) if the trier of fact is a jury—members of the jury to agree on which sexual acts constitute the sexual relationship.
(6) In a proceeding for an offence against subsection (1), the prosecution is required to allege the particulars of the period of the sexual relationship.
(7) For an offence against this section that occurred wholly or in part before the amendment day, when imposing a sentence a court must consider the maximum penalty before the amendment day for—
(a) an offence against this section; and
(b) an offence constituted by a sexual act alleged to constitute the sexual relationship.
(8) A person may be charged on a single indictment with, and convicted of and punished for, both—
(a) an offence against subsection (1); and
(b) 1 or more sexual offences committed by the person against the same young person or person under the special care of the person during the alleged period of the sexual relationship.
(9) Except as provided by subsection (8), a person cannot be convicted of an offence—
(a) against subsection (1) if the person has already been convicted or acquitted of an offence constituted by 1 or more of the sexual acts alleged to constitute the sexual relationship; or
(b) constituted by a sexual act in relation to a young person or person under the special care of the person if the sexual act is alleged to have occurred during the period for which the person has already been convicted or acquitted of an offence against subsection (1) in relation to the young person or person under their special care.
(10) For subsection (9), a person is taken not to have been convicted of an offence if the conviction is quashed or set aside.
(11) The Criminal Code, chapter 2 (other than the immediately applied provisions) does not apply to an offence against this section.
(12) For this section and to remove any doubt, any sexual act alleged to constitute a sexual relationship must constitute, or have constituted (if particulars of the time and place at which the act took place were sufficiently particularised), an offence at the time the act occurred.
(13) In this section:
amendment day means the day the Crimes Legislation Amendment Act 2018, section 4 commenced.
employer, of a person, includes someone authorised to—
(a) decide or vary the terms of the person’s employment; or
(b) end the person’s employment.
foster carer—see the Children and Young People Act 2008, section 518 (2).
health service—see the Human Rights Commission Act 2005, section 7.
health service provider—see section 55A (5).
sexual act—
(a) means—
(i) an act that constitutes an offence against this part; or
(ii) an act that constituted an offence against a sexual offence provision of this Act previously in force (a historical offence); or
(iii) an attempt to commit an act that constitutes or constituted an offence against this part or a historical offence; or
(iv) an act that, if particulars of the time when or place where the act took place were sufficiently particularised, would constitute or have constituted an offence against this part or a historical offence; but
(b) does not include an act referred to in—
(i) section 55 (2) (Sexual intercourse with young person) if the person who committed the act establishes the matters referred to in section 55 (3) that would be a defence if the person had been charged with an offence against section 55 (2); or
(ii) section 61 (2) (Act of indecency with young people) if the person who committed the act establishes the matters referred to in section 61 (3) that would be a defence if the person had been charged with an offence against section 61 (2).
special care—a person is under the special care of an adult if—
(a) the person is not yet an adult; and
(b) the adult—
(i) is a parent, grandparent, step-parent, foster carer or legal guardian of the person; or
(ii) is the domestic partner of a parent, grandparent, step-parent, guardian or foster carer of the person; or
(iii) is a teacher at a school, or an adult with responsibility for students at a school, and the person is a student at the school; or
(iv) has an established personal relationship with the person in relation to the provision of religious, sporting, musical or other instruction to the person; or
(v) is the person’s employer; or
(vi) provides professional counselling to the person; or
(vii) is a health service provider and the person is the adult’s patient; or
(viii) is a custodial officer and the person is a young detainee in the officer’s care, custody or control; or
(ix) if the person has impaired decision-making ability—is a carer for the younger person.
young detainee—see the Children and Young People Act 2008, section 95.
young person means a person who is under the age of 16 years.
In order to convict a person of a charge against s 56 the jury must be satisfied that the accused engaged in a sexual act with the complainant on 2 or more occasions: s 56(2). In the present case the Crown alleges that the applicant engaged in six sexual acts with the complainant over the period specified in the charge. The six acts which form the basis of the charges under s 55A of the Crimes Act are the same six acts which the Crown relies upon as the basis for the charge under s 56. The Crown submits that a plain reading of s 56 entitles it to charge the applicant with both the offence under s 56 as well as the specific offences and to have convictions recorded and punishments imposed on all charges notwithstanding that the charges are based upon the same alleged acts by him committed on BT.
The applicant submits that the Crown cannot proceed with both the charge under s 56 and the substantive charges, and that properly understood s 56 does not permit the Crown to do so. The applicant seeks a stay of Count 1, or other orders as determined by the Court.
The issue is ultimately one of statutory interpretation, and in particular the interpretation of subsections 56(8) and (9) which address the issue of double jeopardy. In interpreting those provisions I take as the starting point s 139 of the Legislation Act 2001 (ACT), which provides that in working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation. In addition, however, the interpretation of s 56 must be approached in the context of s 30 of the Human Rights Act 2004 (ACT) (HRA), which provides that so far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.
I will commence with an examination of the legislative history of the present offence under s 56 of the Crimes Act. I then propose to consider the HRA and the common law pleas in bar to determine whether they cast any light on the proper interpretation of s 56.
The present s 56 was inserted into the Crimes Act by the Crimes Legislation Amendment Act 2018 (ACT), the relevant parts of which came into effect on 2 March 2018. Before that date, s 56 provided for a similar offence of maintaining a sexual offence with a child, which had initially been inserted into the Crimes Act as s 92EA in 1991 (Crimes (Amendment) Act (No. 3) 1991 (ACT)). This provision was subsequently renumbered as s 56. To avoid confusion I will refer to the offence which was s 92EA and which became s 56 as “the previous offence” or by reference to its original numbering, s 92EA. The previous offence was in the following form:
56 Maintaining a sexual relationship with young person
(1)In this section:
sexual act means an act that constitutes an offence against this part, but does not include an act referred to in section 55 (2) or 61 (2) if the person who committed the act establishes the matters referred to in section 55 (3) or 61 (3), as the case may be, that would be a defence if the person had been charged with an offence against section 55 (2) or 61 (2), as the case may be.
young person means a person who is under the age of 16 years.
(2)A person who, being an adult, maintains a sexual relationship with a young person is guilty of an offence.
(3)For subsection (2), an adult shall be taken to have maintained a sexual relationship with a young person if the adult has engaged in a sexual act in relation to the young person on 3 or more occasions.
(4)In proceedings for an offence against subsection (2), evidence of a sexual act is not inadmissible by reason only that it does not disclose the date or the exact circumstances in which the act occurred.
(5)Subject to subsection (6), a person who is convicted of an offence against subsection (2) is liable to imprisonment for 7 years.
(6)If a person convicted under subsection (2) is found, during the course of the relationship, to have committed another offence against this part in relation to the young person (whether or not the person has been convicted of that offence), the offence against subsection (2) is punishable by imprisonment—
(a) if the other offence is punishable by imprisonment for less than 14 years—for 14 years; or
(b) if the other offence is punishable by imprisonment for a period of 14 years or more—for life.
(7)Subject to subsection (8), a person may be charged in 1 indictment with an offence against subsection (2) and with another offence against this part alleged to have been committed by the person during the course of the alleged relationship and may be convicted of and punished for any or all of the offences so charged.
(8)Notwithstanding section 354 (1), where a person convicted of an offence against subsection (2) is sentenced to a term of imprisonment for that offence and a term of imprisonment for another offence against this part committed during the course of the relationship, the court shall not direct that those sentences be cumulative.
(9)A prosecution for an offence against subsection (2) shall not be commenced except by, or with the consent of, the director of public prosecutions.
In his presentation speech on 12 December 1991 on the Crimes (Amendment) Bill (No 7) 1991 (ACT), which introduced the previous offence, the Attorney-General Mr Connolly (as he then was) made it clear that the decision to create the previous offence was a response to the decision of the High Court in S v The Queen (1989) 168 CLR 266 (S v The Queen). It is instructive to consider that decision.
The applicant in S v The Queen was convicted on three counts of incest with his daughter. The daughter gave evidence that she had been sexually abused by S from the age of 9 or 10, progressing to sexual intercourse when she was aged about 14. She further testified that he then engaged in sexual intercourse with her ”[e]very couple of months for a year”, although she was unable to give exact details of any particular instance of offending. The indictment presented by the Crown against S alleged three offences of incest, each alleging that the offence occurred on a date unknown between certain specified dates, effectively each of the calendar years 1980, 1981 and 1982. As Brennan J said “[t]he Crown case was simply that an incestuous relationship existed during each of the periods mentioned in the three counts, but the acts of intercourse constituting the alleged incestuous relationship were not distinguishable one from the other save as to the different occasions of their occurrence”. The appeal by S was based on the submission that it was not open to the Crown to lead evidence of multiple acts of intercourse amounting to the actus reus of the offence and then to invite the jury to convict on any one of those acts.
Brennan J would have dismissed the appeal on the basis that while there was a latent ambiguity in the charges, in the particular circumstances of the case there had been no substantial miscarriage of justice.
The remainder of the Court (Dawson, Toohey, Gaudron and McHugh JJ) determined that the appeal should be upheld and a new trial ordered. In his reasons Dawson J observed that the lack of particularisation of the offences by the Crown had potentially embarrassed S in his defence of the charges, and in particular had deprived him of the opportunity to raise specific and more effective defences such as alibi. He was, in effect, reduced to a general denial of the allegations. His Honour went on to say (at 276) that “the law requires that there be certainty as to the particular offence of which an accused is charged, if for no other reason than that he should, if charged with the same offence a second time, be able to plead autrefois convict or autrefois acquit.”
In his reasons for upholding the appeal, Toohey J saw the real objection to the way in which the trial of S had proceeded was that in such cases, the accused “does not know with any certainty the charge he has to meet”. His Honour considered that this had led to the trial being “fundamentally flawed”, in which case the application of the proviso was inappropriate. His Honour referred to the issue of double jeopardy, but did not think that such a difficulty truly arose in that case.
Gaudron and McHugh JJ delivered a joint judgment. Their Honours observed that the rule against duplicitous counts in an indictment originated as early as the seventeenth century, citing Smith v Mall [ (1623) 2 Rolle 263 [81 ER 788], and R v Stocker (1696) 5 Mod 137 [87 ER 568]. One of the bases for such a rule was the orderly administration of criminal justice: “a court must know what charge it is entertaining in order to ensure that evidence is properly admitted, and in order to instruct the jury properly as to the law to be applied; in the event of conviction, a court must know the offence for which the defendant is to be punished; and the record must show of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict” (at 284).
Their Honours went on to state that the problems attending duplicitous counts also attend proceedings where the prosecution seeks to lead evidence of multiple offences answering the description of the offence or offences charged. The prejudice to S in the way in which the Crown led evidence at the trial went beyond the question whether there was an effective denial of the opportunity to call alibi evidence; S was effectively required to defend himself in respect of each occasion when an offence might have been committed, and was effectively denied an opportunity to test the credit of the complainant by reference to surrounding circumstances. Their Honours determined (at 287) that the trial of S was “fundamentally flawed by the admission of evidence of multiple acts of carnal knowledge and by the way in which such evidence was left to the jury”. They concluded, at 288, by stating:
In the course of argument it was stated by counsel for the Crown that it was impossible to particularize or identify any individual act as the offence the subject of any count in the indictment. Accordingly, it was said, unless the case could be left to the jury on the basis allowed by the trial judge, no case could be prosecuted…Whatever practical difficulties may exist, those difficulties (even if amounting to an impossibility) cannot justify a criminal trial attended with such uncertainty that the verdict or verdicts must also be seen as uncertain.
The decision of the majority in S did not create new law. The decision simply reiterated the long-standing rule that the Crown has an obligation to avoid latent ambiguity in leading evidence in support of a particular charge, just as it has an obligation to avoid patent ambiguity or duplicity in the way in which charges are framed or placed on an indictment.
The bases for this ruling in S were said to be the requirements of the orderly administration of justice and the avoidance of prejudice to the accused. These bases are not unrelated; for example, the absence of a clear record of the act of the accused giving rise to a conviction may not only affect the orderly administration of justice by depriving the court of the ability to determine a subsequent plea of autrefois convict or autrefois acquit, it may also prejudice the accused in maintaining such a plea.
It was in response to the decision in S that the ACT legislature passed s 92EA of the Crimes Act, which was subsequently renumbered as s 56. The problem which the legislature sought to address with the previous offence was the need to address the common law requirement that offences be particularised to an extent that may make prosecution of child sexual offences, and particularly persistent offences, problematic. In the debate in the Legislative Assembly on 12 December 1991 on the Crimes (Amendment) Bill (No 7) 1991 (ACT) (the Bill) neither the Attorney-General, Mr Connelly, who moved the Bill, nor Mr Collaery MLA who proposed amending the Bill by including s 92EA (which was accepted by the Attorney-General), made any reference to double punishment with regard to the provisions of the Bill. This suggests that it was not contemplated that such an issue may arise.
The purpose of considering the form of the previous offence is to determine what, if anything, can be inferred from the rationale for the creation of that offence, the form of the offence and any changes made in the substitution of the new offence under s 56. One matter which may be relevant in that regard is to determine whether the previous offence permitted the prosecution to proceed on a charge of maintaining a sexual relationship and specific charges based upon the same alleged acts. In s 56(7) of the previous offence it was provided that a person may be charged in the one indictment with the offence of maintaining a sexual relationship with a young person, and with “another offence” against Part 3 of the Crimes Act alleged to have been committed during the course of the relationship, and may be convicted and punished for “any or all” of the offences so charged. This provision was subject to s 56(8), which provided that where a person is convicted of an offence of maintaining a sexual relationship with a young person and another offence against Part 3 committed during the course of the relationship, any sentences of imprisonment imposed must not be made cumulative.
It is apparent that these provisions envisaged a person being charged with, convicted of, and sentenced for both an offence of maintaining a sexual relationship and other offences under Part 3 of the Crimes Act which occurred during the period of the relationship, but it is not clear whether it was envisaged that the same acts would form the basis of all the charges. Considered in isolation, it may be argued that the prohibition on cumulative sentences found in s 56(8) suggests that the legislature may have contemplated that the acts upon which the s 56 charge was based may be the same acts supporting other charges; in other words, that s 56(8) is not directed towards avoiding double prosecution, but is only intended to avoid double punishment in such cases. In considering that proposition, however, it is important to consider the effect on sentencing for offences against s 56 provided by s 56(6). That sub-section provided that the penalty for an offence against s 56 would increase significantly, even up to life imprisonment, where a person was convicted of an offence under s 56 and was also found to have committed another offence against Part 3 of the Crimes Act during the course of the relationship. The intended purpose of the previous s 56(8) must be considered in the context of the section providing for increased penalties for the offence of maintaining a sexual relationship with a child where the offender is convicted of other sexual offences against the child which were committed during the period of the relationship. The undoubted implication of s 56(8) for avoiding double punishment can therefore be seen not to be directed towards avoiding double punishment for the same act underpinning both s 56 offence and other offences, but avoiding double punishment because the penalty for the s 56 offence is increased by reason of the other offences.
The precise issue that arises in this proceeding arose in proceedings concerning the previous offence. In R v GB (1998) 148 FLR 222 (R v GB), Crispin J was required to consider whether an accused person could be convicted of and punished for the previous offence under s 92EA and convicted of and punished for specific offences constituted by the same acts relied upon by the Crown for the s 92EA offence. Expressed in this way, the issue was one of both double prosecution and double punishment. Crispin J noted that at face value the terms of s 92EA(7) appeared to clearly authorise such an approach, before referring to the Crown submission that the prohibition on cumulative sentencing in s 92EA(8) was intended to avoid double punishment in such cases. His Honour went on to say:
However, the provision applies to any other offences committed during the course of the relevant sexual relationship. In many cases it may be possible to prove the existence of the relationship by reference to three or more sexual acts relied upon by the Crown for that purpose and also to prove the commission of further offences constituted by other acts of a sexual nature committed during the course of the relationship. Accordingly, it cannot be said that the terms of this subsection are explicable only on the basis of an intention to limit the impact of double punishment for what might be described as constituent sexual acts.
Notwithstanding the apparent clarity of s 92EA(7), Crispin J identified two factors which caused him to doubt that the section should be interpreted in the manner urged by the Crown. The first was that if the Crown was correct, the maximum penalty applicable would always be that provided for by s 92EA(6) and not that provided for by s 92EA(5). The second factor was that “it is contrary to longstanding principle to punish someone twice for what is effectively the same offence”. His Honour observed that if s 92EA were to be interpreted as the Crown suggested, any person convicted of three sexual offences against a child could automatically be convicted of a fourth offence, being the offence under s 92EA, without proof of any additional element. In concluding s 92EA did not permit the Crown to proceed on both the s 92EA charge and other charges based on the same acts, Crispin J referred to R v Giretti (1986) 24 A Crim R 112, R v Locchi (1991) 22 NSWLR 309 and R v Hamzy (1994) 74 A Crim R 341, before saying at 227 that “… cases of this kind may serve to demonstrate that double punishment is inherently repugnant to well-established principles of law and that one should not readily assume that the legislature has intended to authorise such a course.”
A similar approach does not appear to have always been taken in other jurisdictions. In R v LSS [1998] QCA 303; (2000) 1 Qd R 546, the Queensland Court of Appeal made no adverse comment to the appellant having been charged with 10 individual sexual offences against the complainant, and one offence of maintaining a sexual relationship with a child under s 229B of the Criminal Code1899 (Qld) based upon the same conduct alleged in nine of the 10 individual sexual offences. I note that the issue of the propriety of this practice was not raised in those proceedings. Similarly, in R v Kemp (No. 2) [1998] 2 Qd R 510, the Queensland Court of Appeal appeared to accept that the same acts could be relied on as proof of the charge under s 229B and as proof of specific offences. I have been unable, however, to find a case in that jurisdiction that squarely addresses the issue now before me. There are important differences between the drafting of s 229B and the present s 56 of the Crimes Act.
These are also historical circumstances that may be relevant to a proper understanding of the drafting of the previous offence. Before the decision in Rogers v The Queen (1994) 181 CLR 251 made it clear that issue estoppel did not apply in criminal proceedings, previous authorities had left open the possibility that it may. In The King v Wilkes (1948) 77 CLR 511, Dixon J said, at 219,
Whilst there is not a great deal of authority upon the subject, it appears to me that there is nothing wrong in the view that there is an issue estoppel, if it appears by record of itself or as explained by proper evidence, that the same point was determined in favour of a prisoner in a previous criminal trial which is brought in issue on a second criminal trial of the same prisoner.
In Mraz v The Queen [No. 2] (1956) 96 CLR 62, the appellant Mraz was originally charged with the murder of a woman, said to have been committed during or immediately after he raped her. He was ultimately acquitted of that charge. He was then charged with and convicted of a charge of rape relating to the same incident. On appeal, the High Court (Dixon CJ, Williams, Webb, Fullager and Taylor JJ), in upholding the appeal, said at 72,
… the jury’s verdict of not guilty of murder in the circumstances involves as a matter of law a finding that the applicant did not commit rape. An indictment for rape is therefore inconsistent with the verdict upon this issue. Accordingly the applicant’s plea of issue estoppel is made out.
Subsequently, in The Queen v Storey and Another (1978) 140 CLR 364 the High Court was split over whether issue estoppel was applicable to criminal proceedings, with Barwick CJ, Gibbs and Mason JJ stating it was not, while Stephen, Jacobs, Murphy and Aickin JJ stating that it may apply in some circumstances.
The above illustrates that the question of whether issue estoppel was applicable to criminal proceedings was moot when s 92EA was enacted. In addition, there were the pleas in bar, being autrefois acquit and autrefois convict. The offence created by s 92EA was one which of its nature extended over a period of time. It is difficult to believe that the framers of s 92EA were not alive to the possibility of an issue estoppel being raised, or a plea in bar entered, by an accused with regard to specific offences said to have occurred during a period encompassed by a prior charge under s 92EA and where the accused had been convicted or acquitted of the s 92EA offence. This was, after all, one of the issues considered by Gaudron and McHugh JJ in S v The Queen (see [16] above). This would be consistent with the intention behind s 92EA(7) being that a charge under s 92EA should not be seen as “covering the field” of sexual offences alleged to have been committed during the period of the alleged relationship. This would allow the prosecution to proceed with both a charge under s 92EA and specific charges said to have been committed in the period of the alleged relationship where the available evidence was sufficiently particularised to enable specific charges to be laid. Such an approach is consistent with the rationale for the creation of the s 92EA offence, which was to address circumstances where prosecution for specific offences was difficult or impossible due to the complainant being unable to provide the particulars necessary to enable a charge of a specific offence to be laid.
In my opinion there is nothing in the terms of s 92EA which convincingly suggests that it was intended to permit double prosecution, resulting in double punishment by reason of the same acts being relied upon to found convictions for the s 92EA offence and specific offences. There is, with respect, considerable force in the reasons given by Crispin J in R v GB for concluding that the section did not countenance such an approach.
I will now turn to the offence found in the present s 56 of the Crimes Act. The Explanatory Statement to the Crimes Legislation Amendment Bill (No. 2) 2017 (ACT) (the Explanatory Statement) states that the Bill will:
amend section 56 of the Crimes Act (maintain sexual relationship with a young person) so that the unlawful sexual relationship, rather than individual sexual acts, constitutes the actus reus for the offence. This will enable repeated but largely indistinguishable occasions of child sexual abuse to be charged effectively.
I observe in passing that it may be doubted that the new s 56 achieves this goal; the offence may be described as maintaining a sexual relationship with a young person or a person under special care, but the term “sexual relationship” has no clear meaning unless reference is made to s 56(2). To prove a charge under s 56, the prosecution must still prove that the accused engaged in a sexual act with the complainant on two or more occasions; these are the acts of an accused which constitute the offence. It is doubtful whether, in truth, s 56 creates an offence of which the actus reus is maintenance of a sexual relationship, but it is unnecessary to determine whether that be the case in these proceedings.
The Explanatory Statement states that s 56 is based on s 3 of the Model Provision recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse. The rationale for recasting the offense in s 56 is explained by the Explanatory Memorandum:
Clause 4 — Section 56
This clause substitutes the original section 56 offence of maintaining a sexual relationship with a young person with a revised provision to align with the Model Provision recommended by the Royal Commission.
Between 1989 and 1999 all Australian jurisdictions introduced persistent child sexual abuse offences. Throughout Australia, the provisions varied but each sought to allow a prosecution to proceed in cases where there is evidence of a course of unlawful conduct over time, but the evidence lacked the particularity required to permit charges to be laid for each of the separate criminal acts. In 1991, the ACT introduced section 56 of the Crimes Act which prohibits maintaining a sexual relationship with a young person.
These provisions were introduced to overcome the issues identified by the High Court’s decision in S v The Queen (1989) 168 CLR 266 where it was held that offending which could not be sufficiently particularised could not be successfully prosecuted.
When first introduced, each offence operated prospectively and did not capture sexual offending that occurred before the offence commenced. This is problematic given abuse is often not reported for years, even decades, after it has occurred.
In KBT v R (1997) 191 CLR 417 the High Court considered the Queensland offence of ‘maintaining a sexual relationship with a child/young person’ under s29B of the Criminal Code Act 1899 (Qld) sch 1 (Criminal Code (Qld)). In KBT it was held that s229B required the jury to be satisfied beyond reasonable doubt as to the commission of the same three acts which constituted relevant sexual offences. This meant that three occasions of abuse must be clearly articulated and particularised, albeit without requiring dates and exact circumstances.
Given the similarity between the offences Australia-wide, KBT effectively applied to all persistent child abuse offences and rendered them ineffective and unworkable.
Following the decision in KBT, Queensland, South Australia, Tasmania and Western Australia made substantive amendments to their persistent child sexual abuse offences. South Australia and Tasmania amended their offences to make them retrospective in operation.
Victoria has also more recently amended its persistent child abuse provision. However, the ACT provision remained in its original form. The effect is that charges are very rarely laid under section 56.
Under the original ACT provision, an accused is taken to have maintained a sexual relationship with a young person if they have engaged in a sexual act in relation to the young person on three or more occasions. There is no utility in using this provision over charging specific incidents: if the complainant cannot recall specific incidents but is able to give an account of repeated sexual abuse a charge cannot be proved under section 56.
The Royal Commission conducted a detailed review of all Australian persistent child abuse offences and recommended that each state and territory government introduce legislation to amend its persistent child sexual abuse offence so that the unlawful sexual relationship, rather than individual sexual acts, constitutes the actus reus for the offence in accordance with the Model Provision.
Substituted section 56 (1) creates an offence for an adult to maintain a sexual relationship with a young person or a person under the special care of an adult. The maximum penalty for the offence is up to 25 years imprisonment.
This section is based on section 3(1) of the Model Provision and it identifies the core of the offence as the maintaining of the relationship rather than the two or more individual unlawful acts.
(Citations omitted.)
With regard to subsections 56(8) and (9), the Explanatory Statement said:
Section 56(8) provides that a person may be charged on a single indictment with, and convicted of and punished for, both an offence against section 56 and one or more sexual offences committed by the person against the same young person or person under the special care of the person during the alleged period of the sexual relationship.
This section is based on section 4(1) of the Model Provision. The section is intended to address the circumstances in which a person may be charged with the unlawful sexual relationship offence and other sexual offences. It allows a person to be charged on the same indictment with both the offence of maintaining an unlawful sexual relationship with a child and one or more sexual offences against the same child during the period of the alleged unlawful sexual relationship.
Section 56(9) is based on sections 4(2), 4(3) and 4(4) of the Model Provision. This section is intended to address the risk of ‘double jeopardy’, protected by s24 of the HRA, by not allowing a person to be convicted of:
· a section 56 offence if they have already been convicted or acquitted of one of the unlawful sexual acts that are alleged to constitute the unlawful sexual relationship;
· a sexual offence in relation to a child if they have already been convicted or acquitted of a section 56 offence in relation to the child for a period which includes the occasion on which the sexual offence is alleged to have been committed; and
· a section 56 offence in relation to a child if they have already been convicted or acquitted of a previous offence under section 56 in relation to the child for the same period or if any part of the period overlaps.
It is apparent from the above that the legislature was cognisant of the potential for s 56 to be applied in such a manner as to amount to “double jeopardy”, and of the need to avoid that outcome. It is apposite at this point to consider the relevant provisions of the HRA, to the extent that they may assist in properly assessing the legislative intention regarding s 56. Section 24 of the HRA, referred to in the above extract, provides:
24 Right not to be tried or punished more than once
No-one may be tried or punished again for an offence for which he or she has already been finally convicted or acquitted in accordance with law.
The “primary source” for the rights set out in the HRA is the International Covenant on Civil and Political Rights (ICCPR): see the note to the heading of Part 3 of the HRA, and R v Forsyth [2013] ACTSC 179; 281 FLR 62 at [20].
By operation of s 30 of the HRA, so far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights. The interpretation of the human rights acknowledged by the HRA is addressed in s 31, which provides:
31 Interpretation of human rights
(1) International law, and the judgments of foreign and international courts and tribunals, relevant to a human right may be considered in interpreting the human right.
(2) In deciding whether material mentioned in subsection (1) or any other material should be considered, and the weight to be given to the material, the following matters must be taken into account:
(a) the desirability of being able to rely on the ordinary meaning of this Act, having regard to its purpose and its provisions read in the context of the Act as a whole;
(b) the undesirability of prolonging proceedings without compensating advantage;
(c) the accessibility of the material to the public.
Note The matters to be taken into account under this subsection are consistent with those required to be taken into account under the Legislation Act, s 141 (2).
(3) For subsection (2) (c), material in the ACT legislation register is taken to be accessible to the public.
Caution must be exercised in using material referred to in s 31(1) to aid in the interpretation of the HRA: see, generally, R v Forsyth at [40] to [42]. In R v Forsyth, Penfold J referred to the following passages from the judgment of French CJ in Momcilovic v The Queen (2011) 245 CLR 1, at [18] to [20]:
18In addition to the interpretive rule created by s 32(1) of the [Charter of Human Rights and Responsibilities Act 2006 (Vic)], s 32(2) provides:
“International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.”
Section 32(2) does not authorise a court to do anything which it cannot already do. The use of comparative materials in judicial decision-making in Australia is not novel. Courts may, without express statutory authority, refer to the judgments of international and foreign domestic courts which have logical or analogical relevance to the interpretation of a statutory provision. If such a judgment concerns a term identical to or substantially the same as that in the statutory provision being interpreted, then its potential logical or analogical relevance is apparent. The exercise by a court of its capacity to refer to such material does not require the invocation of principles of interpretation affecting statutes giving effect to international treaties or conventions or specifically adopting their terminology. Nor does it involve the application of the common law principle that statutes should be interpreted and applied, so far as their language permits, so as not to be inconsistent with international law or conventions to which Australia is a party. Section 32(2) does not create a mechanism by which international law or interpretive principles affecting international treaties become part of the law of Victoria. On the other hand, it does not exclude the application of common law principles of interpretation relevant to a statute which adopts, as the Charter has, the terminology of an international convention.
19The “right” declared by s 25(1) of the Charter is expressed in terms found in Art 14(2) of the International Covenant on Civil and Political Rights (1966) (the ICCPR), Art 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (the ECHR) and Art 8(2) of the American Convention on Human Rights (1969) (the ACHR). It is found in other conventions and foreign domestic laws and constitutions. Judgments of international and foreign domestic courts may be consulted in determining whether the right to be presumed innocent, declared in s 25(1), should be interpreted as congruent with the common law presumption of innocence or as extending beyond it. The content of a human right will affect the potential application of the interpretive requirement in s 32(1) in relation to that right. Nevertheless, international and foreign domestic judgments should be consulted with discrimination and care. Such judgments are made in a variety of legal systems and constitutional settings which have to be taken into account when reading them. What McHugh J said in Theophanous v Herald & Weekly Times Ltd is applicable in this context:
“The true meaning of a legal text almost always depends on a background of concepts, principles, practices, facts, rights and duties which the authors of the text took for granted or understood, without conscious advertence, by reason of their common language or culture.”
Despite our common legal heritage, that general proposition is relevant today in reading decisions of the courts of the United Kingdom, especially in relation to the Human Rights Act 1998 (UK) (the HRA). It is appropriate to take heed not only of Lord Bingham of Cornhill’s remark about the need for caution “in considering different enactments decided under different constitutional arrangements”, but also his observation that “the United Kingdom courts must take their lead from Strasbourg”.
20The same general caution applies to the use of comparative law materials in construing the interpretive principle in s 32(1). In this appeal what was said to be the strong or remedial approach taken by the House of Lords to the application of the United Kingdom counterpart to s 32(1) of the Charter, namely s 3 of the HRA, was at the forefront of the appellant’s submissions. However, s 3 differs textually from s 32(1) and finds its place in a different constitutional setting.
(Citations omitted.)
The right expressed in s 24 of the HRA is based upon, and is indeed almost identical to, Article 14(7) of the ICCPR, which provides:
No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.
The question which arises with regard to s 24 of the HRA is the meaning of the term “an offence”. Is the term to be construed narrowly as referring to a charge containing the same legal elements as the offence for which the accused has previously been tried and punished, or is it to be given a broader interpretation encompassing any charge based on the same alleged acts? Many human rights conventions contain similarly worded provisions, so that a brief consideration of European jurisprudence may be permitted.
In Gradinger v Austria (European Court of Human Rights, Chamber, Application No 15963/90, 23 October 1995) (Gradinger), the European Court of Human Rights (the Court) considered whether the provisions of Article 4 of Protocol 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) by reason of multiple prosecutions arising out of the one motor accident. The appellant Gradinger was involved as the driver of a motor vehicle in an accident on 1 January 1987 which led to the death of a cyclist. A blood alcohol test revealed a reading of 0.8 grams of alcohol per litre. On 15 May 1987 the St Pölten Regional Court convicted him of causing death by negligence and sentenced him. It appears that expert evidence led at this trial was to the effect that because of the shortness of the interval between his last drink and the accident, Gradinger could not have been over the legal blood alcohol limit at the time of the accident. As such, Gradinger was not subject to the more severe penalties prescribed for causing death by negligence while under the influence of alcohol.
Subsequently, on 16 July 1987 the St Pölten district authority issued a “sentence order” imposing a heavier penalty on Gradinger based on a different medical report which stated that at the time of the accident the appellant’s blood alcohol level must have been at least 0.95 grams of alcohol per litre.
The matter came before the Court, inter alia, on the question whether there had been a breach of Article 4 of Protocol 7 of the Convention, which provided:
No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.
By a majority of 8 to 1, the Court held that there had been a breach. The Court acknowledged that the elements of the two offences of which the appellant was convicted were not the same, but concluded that there had been a breach because both decisions were based on the same conduct.
A different decision was arrived at in the subsequent case of Oliveira v Switzerland (European Court of Human Rights, Chamber, Application No 25711/94, 30 July 1998) a decision of the Court delivered on 30 July 1998. Mrs Oliveira was driving on a road covered with ice and snow in Zürich when her car veered onto the other side of the road colliding with a car driven by M, who sustained serious injuries. On 13 August 1991 a police magistrate convicted Mrs Oliveria of failing to control her vehicle and imposed a fine. On 25 January 1993 the district attorney’s office issued a penal order imposing a much larger fine for an offence of negligently causing physical injury. Mrs Oliveira challenged the penal order on the basis that it involved a violation of Article 4 of Protocol 7 of the Convention. The Court held by a majority of 8 to 1 that there had been no breach of Article 4 because the facts revealed a case of “a single act constituting various offences”. The majority sought to distinguish the decision in Gradinger on the rather dubious basis that Gradinger was simply a case where “two different courts came to inconsistent findings on the applicant’s blood alcohol level”.
Finally, in Franz Fischer v Austria (European Court of Human Rights, Third Section, Application No 37950/97, 29 May 2001) a decision delivered on 29 May 2001, the Court adopted a more nuanced approach to the application of Article 4, essentially requiring an examination of the elements of the offences to determine whether the offences have the same “essential elements”. This approach seems to have been generally followed: see Schutte v Austria (European Court of Human Rights, First Section, Application No 18015/03, 26 July 2007), a decision of the Court delivered on 26 July 2007.
The decisions of the Court to which I have briefly referred are all influenced, to some extent, by the domestic laws of the jurisdiction in which the issue arose, so that care must be taken in attempting to derive a coherent principle. In Human Rights in Criminal Proceedings by Stefan Trechsel, Oxford University Press 2005, the author states at 396 that the principles to be applied in the domestic laws of Switzerland, Germany and Austria to cases charging multiple offences based on the same act is “a most debated point, popular in law-school exams”.
In my opinion, little assistance is derived from the European jurisprudence concerning Article 4 of Protocol 7 of the Convention in interpreting s 24 of the HRA, but to the extent that it does provide assistance it supports the narrower interpretation of the words “an offence” suggested at [36] above. It is also indicative of a general acknowledgement that, at some level, it is inappropriate for the state to seek to try and convict an accused on multiple charges based on the same act.
As the purpose of the present exercise is to understand how the legislature has approached the issue of double jeopardy in s 56 of the Crimes Act, it is also appropriate to engage in a brief excursion into an aspect of the common law that addresses double jeopardy, being the pleas in bar.
The plea of autrefois convict is a plea that the accused has already been convicted of the charged offence. If established, it operates to bar any further conviction with regard to the same offence. The plea of autrefois acquit is the opposite side of the coin, and is a plea that the accused has previously been tried for and acquitted of the offence with which they are now charged. If established, this plea also operates as a bar to conviction for the offence.
In Pearce v The Queen [1998] HCA 57; 194 CLR 610 the appellant Pearce was tried on the same indictment on one count of maliciously inflicting grievous bodily harm with intent to inflict grievous bodily harm contrary to s 33 of the Crimes Act 1900 (NSW), and one count of breaking and entering the dwelling house of the same victim and, while therein, inflicting grievous bodily harm on him contrary to s 110 of the same Act. The two charges arose out of the same episode. An application by the appellant to the trial judge for an order staying proceedings on the indictment was refused, and the appellant entered pleas of guilty to both charges. He was sentenced to substantial terms of imprisonment on each charge. The plurality (McHugh, Hayne and Callinan JJ) recognised that under the rubric of double jeopardy may be found principles regarding both double prosecution and double punishment.
The plurality noted that each of the offences under ss 33 and 110 contained an element that the other did not – a specific intention to do grievous bodily harm in s 33 and a breaking and entering in s 110. As such neither offence was wholly included in the other. The appellant Pearce, however, submitted that at common law a person could not be convicted of different offences in respect of the same or substantially the same set of facts. In rejecting the proposition that the appellant would have available a plea in bar with regard to one or other of the charges, the plurality said: “[i]t is clear that the plea in bar goes to offences the elements of which are the same, or are included in the elements of the offence to which the accused has been tried to conviction or acquittal.” An example of circumstances where the elements of an offence are included in the elements of another offence such as to make available a plea in bar is given in a footnote to [16] of the judgment of the plurality:
The position may be contrasted with the position that would have obtained if… there were a simple offence of housebreaking…In that event, all of the elements of what might be called the simple offence of housebreaking would be included in the elements of the offence created by s 110. If convicted or acquitted of one, the accused would have a plea in bar to the other.
A similarly narrow view of the availability of pleas in bar has been expressed in the UK: R v Beedie [1998] QB 356.
Both Pearce and Beedie, however, recognised the availability of a stay of proceedings in appropriate cases in order to prevent abuse of process or, in the case of Beedie, double punishment. The plurality in Pearce said:
Confining the availability of the plea in bar in this way does not deny the existence of the inherent powers of a court to prevent abuse of its process.
In the earlier case of Rogers v The Queen (1994) 181 CLR 251 (Rogers), Mason CJ, agreeing with Deane and Gaudron JJ, said at 255:
The concept of abuse of process is not confined to cases in which the purpose of the moving party is to achieve some foreign or ulterior object, in that it is not that party’s genuine purpose to obtain the relief sought in the second proceedings. The circumstances in which abuse of process may arise are extremely varied and it would be unwise to limit those circumstances to fixed categories.
(Footnotes omitted.)
While he was in dissent regarding the outcome in Rogers, McHugh J agreed with the majority regarding the availability of a stay of proceedings to prevent an abuse of process in an appropriate case.
What emerges from Pearce is that the pleas of autrefois convict and autrefois acquit have a narrow application. They are confined to charges where there is a coincidence of legal elements and a coincidence of facts. The fact that multiple charges may arise out of the one criminal act is not a basis for a plea in bar. For example, two charges of culpable driving may arise out of the one course of driving where it results in death or injury to two victims. In such a case there is a coincidence of legal elements in each of the charges, but not a coincidence of the evidence needed to establish the offences. The decision in Pearce, however, goes beyond the availability of a plea in bar and emphasises the entitlement of courts, in appropriate cases, to stay proceedings to avoid abuse of process. It is therefore clear that I have jurisdiction to impose a stay with regard to charges in the present proceedings should it be necessary to do so to avoid an abuse of process.
Would a plea in bar be available to an accused who has been convicted (or acquitted) of an offence under s 56 based on certain alleged events of sexual offending and is then charged with a specific offence alleging one of those events of sexual offending? I confess I find this a very difficult question to answer. The nature of the offence created by s 56 will frequently make it difficult to identify from a jury’s verdict what acts on the part of the accused were found to be proved. If there were only two such events alleged and the jury found the accused guilty of the offence under s 56, I would have no doubt that the accused could plead autrefois convict with regard to specific offences based on the same events, assuming that there was the necessary coincidence of legal elements in the alleged offences. For example, if an accused were convicted of an offence under s 56 based on an allegation that on two occasions the accused engaged in sexual intercourse with a young person under the accused’s special care contrary to s 55A of the Crimes Act, there could be little doubt that they would be entitled to enter a plea in bar to any subsequent attempt to convict them of the offences under s 55A based on the same acts.
The position becomes more complicated when we consider other scenarios. An acquittal on the charge under s 56 posited in the previous paragraph may mean that the jury did not accept that any of the two alleged sexual acts occurred, or it may mean that they were satisfied that one occurred, but not that the other occurred. Similarly, an acquittal or conviction by a jury with regard to a charge under s 56 based upon more than two alleged sexual acts will not reveal what acts the jury found proved, and those which it did not. At this point, the principles governing the availability of the pleas in bar simply cannot apply.
The Explanatory Statement to the Crimes Legislation Amendment Bill (No 2) 2017 (ACT) states, with regard to the proposed subsections 56(8) and (9):
Section 56(8) provides that a person may be charged on a single indictment with, and convicted of and punished for, both an offence against section 56 and one or more sexual offences committed by the person against the same young person or person under the special care of the person during the alleged period of the sexual relationship.
This section is based on section 4(1) of the Model Provision. The section is intended to address the circumstances in which a person may be charged with the unlawful sexual relationship offence and other sexual offences. It allows a person to be charged on the same indictment with both the offence of maintaining an unlawful sexual relationship with a child and one or more sexual offences against the same child during the period of the alleged unlawful sexual relationship.
Section 56(9) is based on sections 4(2), 4(3) and 4(4) of the Model Provision. This section is intended to address the risk of ‘double jeopardy’, protected by s24 of the HRA, by not allowing a person to be convicted of:
· a section 56 offence if they have already been convicted or acquitted of one of the unlawful sexual acts that are alleged to constitute the unlawful sexual relationship;
· a sexual offence in relation to a child if they have already been convicted or acquitted of a section 56 offence in relation to the child for a period which includes the occasion on which the sexual offence is alleged to have been committed; and
· a section 56 offence in relation to a child if they have already been convicted or acquitted of a previous offence under section 56 in relation to the child for the same period or if any part of the period overlaps.
(Highlight added.)
The use of the word “other”, as highlighted above, suggests that a distinction was intended to be drawn between the s 56 charge (and the “sexual acts” on which it is based) and different sexual offences included on the same indictment.
The Criminal Justice Report of the Royal Commission into Institutional Reponses to Child Sexual Abuse, Part III (the Royal Commission Report), addresses the purpose behind the model offence (found at Appendix H to the Report), and persistent child sex abuse offences in general. The Report starts by noting the difficulty prosecution authorities experience in prosecuting cases of persistent sexual abuse of children because of the requirement that particulars of the time, place and nature of the alleged act be provided to an accused. This was perceived to be a difficulty where children were the alleged victims. The Report noted that after the High Court’s decision in S v The Queen, all Australian jurisdictions introduced persistent child sex abuse offences. The effectiveness of these new offences was perceived to be lessened by the need for the prosecution to prove that a specified number of sexual acts had been engaged in towards the victim (at that time, usually three) for the evidence to be such as to enable the jury to identify the required number of separate sexual acts (R v Johnson [2015] SASCFC 170) and for the jury to be unanimous on their finding of the same sexual acts before a conviction could be returned (KBT v R (1997) 191 CLR 417). One of the complaints made by prosecuting authorities was that there was no benefit in charging an accused with an offence of persistent child sexual abuse if a child complainant was able to particularise three occasions on which sexual abuse occurred; in those circumstances it was easier to simply charge each incident separately. In a report titled “Review of South Australian rape and sexual assault law”, referred to in the Royal Commission’s Report, the South Australian Attorney-General went further and said: “[i]ndeed, a separate charging practice would be preferable as it would allow for some guilty verdicts in the situation where a jury was satisfied about one or two of the occasions but not all three occasions”.
The Royal Commission recommended that each State and Territory government introduce legislation to amend its persistent child sexual abuse offence so that:
a. the actus reus is the maintaining of an unlawful sexual relationship
b. an unlawful sexual relationship is established by more than one unlawful sexual act
c. the trier of fact must be satisfied beyond reasonable doubt that the unlawful sexual relationship existed but, where the trier of fact is a jury, jurors need not be satisfied of the same unlawful sexual acts
d. the offence applies retrospectively but only to sexual acts that were unlawful at the time they were committed
e. on sentencing, regard is to be had to relevant lower statutory maximum penalties if the offence is charged with retrospective application.
In addressing the recommended model provision, the Royal Commission Report noted the risk of double jeopardy, and how that was addressed in the model provision (referred to in this extract as the draft provision):
Clause 4 of the draft provision addresses the circumstances in which a person may be charged with the unlawful sexual relationship offence and other sexual offences. It allows a person to be charged on the same indictment with both the offence of maintaining an unlawful sexual relationship with a child and one or more sexual offences against the same child during the period of the alleged unlawful sexual relationship, as may currently occur in relation to the Queensland offence. However, it addresses the risk of ‘double jeopardy’ by otherwise not allowing a person to be convicted of:
· an unlawful sexual relationship offence if they have already been convicted or acquitted of one of the unlawful sexual acts that are alleged to constitute the unlawful sexual relationship
· a sexual offence in relation to a child if they have already been convicted or acquitted of an unlawful sexual relationship offence in relation to the child for a period which includes the occasion on which the sexual offence is alleged to have been committed
· an unlawful sexual relationship offence in relation to a child if they have already been convicted or acquitted of a predecessor offence – an earlier version of a persistent child sexual abuse offence – in relation to the child for the same period or if any part of the period overlaps.
Clause 4 of the model provision, found at Appendix H of the Royal Commission Report, is in the following terms:
4 Charging both unlawful sexual relationship offence and sexual offences
(1)A person may be charged on a single indictment with, and convicted of and punished for, both:
(a) an offence of maintaining an unlawful sexual relationship with a child, and
(b) one or more sexual offences committed by the person against the same child during the alleged period of the unlawful sexual relationship.
(2)Except as provided by subsection (1), a person who has been convicted or acquitted of a sexual offence in relation to a child cannot be convicted of an unlawful sexual relationship offence in relation to the same child if the sexual offence of which the person has been convicted or acquitted is one of the unlawful sexual acts that are alleged to constitute the unlawful sexual relationship.
(3)Except as provided by subsection (1), a person who has been convicted or acquitted of an unlawful sexual relationship offence in relation to a child cannot be convicted of a sexual offence in relation to the same child if the occasion on which the sexual offence is alleged to have occurred is during the period over which the person was alleged to have committed the unlawful sexual relationship offence.
(4)A person who has been convicted or acquitted of a predecessor offence in relation to a child cannot be convicted of an unlawful sexual relationship offence in relation to the same child if the period of the alleged unlawful sexual relationship includes any part of the period during which the person was alleged to have committed the predecessor offence.
(5)For the purposes of this section, a person ceases to be regarded as having been convicted for an offence if the conviction is quashed or set aside.
It is apparent from a comparison of s 56 and Clause 4, as well as the contents of the Explanatory Statement, that s 56(8) is modelled on Clause 4(1), that s 56(9)(a) is modelled on Clause 4(2), and that s 56(9)(b) is modelled on Clause 4(3). It is also apparent from clause 4(2) that the model provision would not permit conviction on a specific offence when that offence is based on a sexual act which is also relied upon to establish a sexual relationship offence. In part, it makes this clear by maintaining a clear distinction between the sexual relationship offence (established by proof of “sexual acts”) and other “sexual offences”.
There is an apparent incongruence between the provisions of subsections 56(8) and (9). Leaving aside for one moment the exception referred to in the chapeau to s 56(9), that provision prohibits a person being convicted of an offence under s 56(1) if the person has already been convicted or acquitted of an offence constituted by one or more of the sexual acts alleged to constitute the sexual relationship (s 56(9)(a)), and conviction on a specific offence in relation to a victim where that specific offence is alleged to have occurred during the period of a previous charge under s 56(1) relating to the same victim and on which the person has been convicted or acquitted. The effect of s 56(9), leaving aside the exception, is to protect a person convicted of an offence under s 56(1) from double punishment by way of conviction for a specific offence which formed part of the allegation of the basis of the sexual relationship for the s 56 offence, and to protect a person from further prosecution for specific offences alleged to have occurred during the period of the alleged sexual relationship where the person has been convicted or acquitted of a charge under s 56(1).
What then does one make of the provisions of s 56(8), which by reason of the exception in s 56(9) appear to permit the very conduct prohibited by s 56(9)? If these provisions were to be given the meaning suggested by the respondent, it would result in the curious position that an alleged offender would have protection from double prosecution and double punishment only in cases where the specific offences are not included on the same indictment as the charge under s 56. So long as all of the charges are contained in the one indictment, s 56(9) would have no work to do.
It may be suggested that the rationale for such a curious approach to dealing with the issue of double jeopardy in s 56 is based upon principles of finality, but that suggestion is unconvincing. There is nothing in the Explanatory Statement or the Royal Commission Report to support the proposition that the legislature intended to take a radically different approach to protection of accused persons from the danger of double jeopardy depending upon the decision of prosecuting authorities as to which charges to place on an indictment.
The “plain reading” of s 56 urged by the respondent would result in significant reduction of the protection provided by the section against double jeopardy. In many cases it would mean that those protections would or would not be available to an accused at the discretion of the Director of Public Prosecutions (DPP).
What is demonstrated by the material to which I have referred in these reasons is that there is a general abhorrence to double jeopardy, in the sense of a person being convicted and/or punished on more than one occasion with regard to an offence based upon the same act or acts of an accused person. This is reflected in the common law, the HRA and international human rights protocols. The desire of the legislature to protect individuals from double jeopardy is found in the provisions of s 56 and is referred to in the Explanatory Statement and the Royal Commission Report. An interpretation of s 56 that is consistent with the text of the provision but also best achieves the object of protecting an accused from the danger of double jeopardy is preferable to one which does not achieve that object. The nature of the offence under s 56 creates difficulties for the operation of conventional principles designed to protect individuals from the danger of double jeopardy. It is impossible to conceive other than that the legislature was alive to these difficulties and intended to address them in subsections 56(8) and (9).
The offence under s 56 was not created as an aggravated form of sexual assault, carrying a harsher penalty than the specific offences which the evidence shows the accused engaged in. To the extent that s 56 carries a heavier penalty than other offences under Part 3 of the Crimes Act, the reason is twofold. First, the sexual act or acts relied upon as constituting the sexual relationship for the purposes of s 56 may vary in nature, from sexual assault in the first degree carrying a maximum penalty of 20 years’ imprisonment to offences carrying lesser penalties. Secondly, proof of an offence under s 56 requires the jury to be satisfied that at least two sexual acts which would constitute offences under Part 3 were committed. The maximum penalty of 25 years’ imprisonment is therefore an acknowledgement of the variety and number of sexual offences that may be revealed in a trial for an offence under s 56. The material to which I have referred makes it clear that the legislative purpose in creating the offence found in s 56 was to avoid evidentiary and procedural difficulties that would preclude the accused being charged with specific offences. The section was intended to operate in circumstances where because of the nature of the offending and/or capacity of the complainant, it was not possible to proceed with specific charges, or at least not in such a way as to reveal the true extent of the accused’s criminality. In my opinion, consideration of the legislative intention with regard to subsections 56(8) and (9) must be undertaken with that firmly in mind.
Bearing in mind the basis for the creation of the s 56 offence, the purpose of s 56(8) is to make it clear that an indictment may contain a count under s 56(1) based on alleged sexual acts, but also specific sexual offences based on other alleged sexual acts during the period of the alleged sexual relationship. In other words, it makes it clear that the s 56 offence does not “cover the field” of sexual offences during the period covered by the charge under s 56. This interpretation is consistent with the language of s 56(8), which speaks of “offences” rather than acts and distinguishes between the offence under s 56 and other sexual offences, and the intention of the legislature to protect individuals charged with offences under s 56 against double jeopardy. Once it is recognised that the legislature anticipated that the charge under s 56 would only be utilised in circumstances where proceeding on specific charges was not viable, or did not adequately reflect the offender’s criminality, the provisions of subsections 56(8) and (9) become coherent. The effect of the provisions is that an accused may be charged on a single indictment with a charge under s 56(1) and with specific offences alleged to have occurred in the same period, but a conviction (and penalty) cannot be recorded for a specific offence which is based upon the same sexual act which the Crown relies upon to prove the charge under s 56(1). If an accused has previously been convicted or acquitted of an offence under s 56(1), they cannot at a later time be convicted of an offence based on a sexual act on the same complainant alleged to have occurred within the period covered by the s 56(1) charge.
This interpretation does not preclude the Crown, in an appropriate case, from relying upon a sexual act which can be particularised to the extent that it could be prosecuted as a specific charge as a sexual act for the purposes of a charge under s 56(1). What the Crown cannot do is to seek to have a conviction recorded on the specific charge and the s 56(1) charge where they rely on the same act. It also appears to me to be open to the Crown to allege a specific offence or offences as an alternative to a charge under s 56(1) (the opposite simply cannot work). Such an approach also avoids the apparent incongruity, which could easily occur, of the jury convicting the accused on the s 56 charge and acquitting the accused on all of the specific charges based on the same alleged sexual acts.
Conclusion
The history of sexual relationship offences in the ACT has not been driven by the perceived need to create an aggravated form of sexual offence, but by the need to ensure that prosecutions did not fail because of the inability of vulnerable people to provide the type of information about the date, time and place of sexual offending required by the common law. The operation of sexual relationship offences was intended to fill a gap in the prosecution of sexual offences, not to replace existing specific offences or to erase generally the principles governing the prosecution of specific offences. In addition, the Explanatory Statement regarding s 56, as well as the Report of the Royal Commission, demonstrate the concern to protect accused persons from double jeopardy with regard to the operation of the model offence and s 56, which is consistent with the traditional approach of the common law. In my opinion, the Crown is not entitled to seek convictions upon both the s 56(1) charge and the other specific charges under s 55A based on the same alleged sexual acts by the applicant; it must choose to proceed either on the charge under s 56(1) or on the specific charges or it may choose to charge the specific offences in the alternative to the s 56(1) offence. Although that is a choice to be made by the DPP, the purpose for which the offence under s 56(1) was created speaks strongly of the appropriateness of proceeding with specific charges where that is possible, and where such charges will adequately reveal the criminality involved.
It is important this this Court acknowledges and respects the discretion vested in the DPP to determine upon which charge or charges it will bring the applicant to trial. As such, it is inappropriate that I make any order staying any of the charges at this time. I will refrain from making formal orders to allow the DPP to elect how it will proceed in the light of these reasons. The matter may be relisted for formal orders to be made on short notice should that prove necessary.
| I certify that the preceding seventy-one [71] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 12 October 2018 |
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