R v Hamra - [2016] SASCFC 130

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HAMRA
[2016] SASCFC 130
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly, The Honourable Justice Peek, The Honourable Justice Nicholson and The Honourable Justice Lovell)
8 December 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST ACQUITTAL
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - PRIMA FACIE CASE OR CASE TO ANSWER
Appeal against acquittal. Trial Judge ruled that there was no case to answer.
Respondent charged with persistent exploitation of a child contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA) (CLCA).
BT, the complainant, alleged that between 30 October 1977 and 1 November 1982 the respondent committed more than one act of sexual exploitation at Morphett Vale and another place. It was specifically alleged that the respondent touched BT’s genitals, placed his penis between BT’s bottom, caused BT to touch his penis and performed fellatio on BT.
At trial, certain parts of BT’s evidence were vague, other parts conflicted with evidence given by BT’s mother.
BT gave evidence that while living at home he slept in two different bedrooms during different periods of his life. BT’s evidence included that the respondent interfered with him in each of those bedrooms, and that the offending was more frequent while he lived in the second bedroom. BT also gave evidence that at one stage his parents went on holiday to Fiji, and that while they were away the respondent’s offending increased in severity. The instances of fellatio only occurred while BT’s parents were on holiday.
At the conclusion of the complainant’s evidence, counsel for the respondent queried whether the evidence sufficiently particularised the instances of specific offending to constitute an offence under s 50 of the CLCA in accordance with R v Johnson [2015] SASCFC 170. Counsel for the respondent submitted that as a result of the lack of particularity there was no case to answer. The prosecutor sought to delineate instances of the offending on the basis of the evidence being sufficiently particularised with reference to, for example, certain bedrooms, certain timeframes spent in those bedrooms, and other details.
After hearing argument on the no case to answer submission, the Judge directed a verdict of acquittal. The Judge held that the allegations were generalised and non-specific as to times and dates, were not able to be related to a particular incident or occasion. The trial Judge held it was impossible to identify two or more requisite instances of offending for the purposes of s 50 CLCA.
The complainant commenced the appeal against the acquittal under s 352(1)(ab) of the CLCA. The Respondent submitted the appeal was incompetent as s 4 of the Criminal Law Consolidation (Appeals) Amendment Act 2000 (SA) (the 2000 Appeals Amendment Act) precluded s 352(1)(ab) from operating retrospectively and that subsequent Amendment Acts did not affect the operation of s 4.
Held per Kourakis CJ (Kelly, Peek, Nicholson and Lovell JJ agreeing), allowing the appeal:
1.       Section 352(1)(ab) of the CLCA was repealed and re-enacted in 2008 with the effect of applying to all proceedings commenced after 3 August 2008 and without any limitation imposed by s 4 of the 2000 Appeals Amendment Act.
2. Whether the offending will be sufficiently particularised to determine whether a jury's verdict is unreasonable is a question of fact that requires consideration of different principles than a no case to answer submission - R v Johnson [2015] SASCFC 170 distinguished.
3.       Whether a no case to answer submission ought to be accepted is a question of law, which requires a proper construction of the offence and taking the evidence at its highest. The complainant’s evidence, when taken at its highest was capable of proving two or more offences over a period of three or more days.
4.       Appeal allowed.
5.       Verdict of acquittal set aside and remitted to the District Court for trial.
Acts Interpretation Act 1915 (SA) s 16; Criminal Law Consolidation Act 1935 (SA) s 50, s 352; Criminal Law Consolidation (Appeals) Amendment Act 2000 (SA) s 2, s 4; Criminal Law Consolidation (Double Jeopardy) Amendment Act 2008 (SA), referred to.
R v Johnson [2015] SASCFC 170, distinguished.
R v Hamra (No 2) [2016] SADC 8, not followed.
Bilick v Starke (1984) 36 SASR 321; Darven v Messell (1984) 155 CLR 21; Dolphin v Workers Rehabilitation & Compensation Corporation (Unreported, Supreme Court of South Australia, Cox, Lander and Bleby JJ, 9 December 1997); KBT v the Queen (1997) 191 CLR 417; R v Little (2015) 123 SASR 414; The Queen v M, BJ (2011) 110 SASR 1; Thompson v Mastertouch TV Service Pty Ltd (No 3) (1978) 38 FLR 397, discussed.

R v HAMRA
[2016] SASCFC 130
KOURAKIS CJ.
Introduction

The respondent, Stephen Hamra, was charged with one count of persistent sexual exploitation of a child, contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA) (CLCA). That count alleged that between 30 October 1977 and 1 November 1982 at Morphett Vale and another place, the respondent committed more than one act of sexual exploitation against the complainant ‘BT’, a child under the age of 17 years. Specifically, it was alleged that the respondent touched BT’s genitals, placed his penis between BT’s bottom, caused BT to touch his penis and performed fellatio on BT.
The respondent elected for trial by judge alone. BT and his parents gave evidence. At the conclusion of the prosecution case counsel for the respondent submitted that there was no case to answer. After hearing argument on that issue the trial judge found that there was no case to answer and delivered a verdict of not guilty. The Director of Public Prosecutions (the Director) seeks permission to appeal against that acquittal on the sole ground that the trial judge erred in determining that there was no case to answer, in particular by determining that s 50 of the CLCA required a higher degree of specificity as to the alleged conduct than was provided by the complainant in his evidence.
Before turning to the arguments on appeal it is convenient to set out the relevant factual background and the course of proceedings at trial.
Factual background
BT was born on 1 November 1965. He was 50 years of age at the date of trial. Although BT was unable to give evidence about specific occasions he recalled, his evidence was as follows.
BT lived in a three bedroom house at Morphett Vale with his parents and two younger brothers. At some stage his grandmother moved in for approximately 12 to 18 months before she left to live in a nursing home. BT said he was about 11 when he first met the respondent at the home of friends of his parents. He said it was at a surprise birthday party for his mother but he could not remember how old she was. BT’s mother later said in evidence that there was a surprise birthday party for her at her friends’ home on either her 28^th or 29^th birthday. She said at that time BT was about five or six years old. BT’s mother was unable to recall specifically the first occasion when she met the respondent however she did confirm that it was at the home of the friends who had thrown her a surprise birthday party. BT thought he was about 11 years old at that time, although he was not sure.
BT’s evidence about the sleeping arrangements in the home were that for a time he slept in the third bedroom of the house with his two younger brothers. After his grandmother moved into the nursing home when he was about 12 or 13, he then slept alone in the second bedroom which she had previously occupied. BT slept there alone for about three years between the age of approximately 13 and 16.
BT said that on occasions when the respondent slept at their home he sometimes slept in the lounge room in a sleeping bag and on other occasions he would sleep in the same bedroom (bedroom three) with BT and his two brothers. The respondent slept on the floor between the beds.
Whilst still sleeping with his two younger brothers in the third bedroom, BT said he awoke one night and realised that the respondent was in the bed with him because he recognised the smell of the cologne that he wore. BT said that on that first occasion when he realised the respondent was in bed with him nothing happened. However it happened again and at some stage the respondent started to touch BT’s genitals, first over the top of his pyjamas. BT’s evidence was that the first occasion happened whilst he was still sleeping in the third bedroom with his two younger brothers. Although in cross examination BT was uncertain as to whether on that occasion the respondent was sleeping in the lounge or in the third bedroom with the boys, he was firm in his evidence that the first occasion that he was sexually interfered with by the respondent was in the third bedroom.
He was unable to recall when the touching of his genitals inside of the pyjamas commenced but he said it happened at some stage later.
After BT moved into the second bedroom, he said the respondent’s sexual interfering became more frequent. At that stage the respondent got BT to touch his genitals as well. By the time BT was sleeping in the second bedroom he said the respondent during these episodes used to remove BT’s pyjamas and fondle him. The respondent would often pull BT’s pants partly down but never removed them completely. The respondent would then get BT to stroke his penis. Sometimes BT’s pyjama pants were wet after he ejaculated. BT also remembered that on some occasions the respondent’s clothing was wet because he too ejaculated during these episodes. These incidents always ended with one or both of them ejaculating.
BT said that, while he was in bedroom two, every time the respondent came to stay in their family home the respondent came into BT’s bedroom and touched him on the genitals. His recollection was that the frequency of these visits was nearly every weekend because the respondent became as if he was part of their family. On several occasions BT and his two brothers went with the respondent and stayed overnight in the respondent’s parents’ home at Kurralta Park. There were a couple of occasions when the respondent touched BT’s genitals whilst they were staying over at Kurralta Park. BT said it did not happen every time they went there.
BT described an occasion when his parents went on a holiday to Fiji for two weeks. On some occasions during this period BT and his brothers would go to Kurralta Park. This holiday took place when BT was sleeping in the second bedroom after his grandmother had moved out. He said that while his parents were in Fiji the respondent came into the bedroom every night and performed different sexual acts. On two occasions during that two week period the respondent put BT’s penis in his mouth. BT said that the respondent had never done that before and that after his parents came back from Fiji it never happened again.
Proceedings at trial
The issue of the specificity of the complainant’s evidence was raised by counsel for the respondent at the conclusion of the complainant’s evidence. Mrs Shaw QC, who was senior counsel for the respondent a trial and on appeal, sought clarification from the prosecutor and from the trial judge as to whether this Court’s decision in R v Johnson[1] applied. After some discussion the trial judge said:
[A]s I understand the law – and no doubt this can be directed in due course – I accept that you don’t have to establish the precise date or occasion of the separate qualifying offence, but query whether you have sufficiently identified each particular occasion and at the moment I gather what the defence will be arguing you’ve just got these, you didn’t use the word ‘clusters’ but groups of offences.
That’s as far as I’m prepared to require the DPP to particularise...
...
I accept there may be, there is certainly an issue about the degree of particularity, but to my mind that’s a question of once all the evidence is in, but I would give you liberty to recall [BT].
[1] [2015] SASCFC 170.
Following this discussion, counsel for the respondent recalled BT to give further evidence.
At the close of the prosecution case Mrs Shaw argued that the prosecution had failed to satisfy the test outlined in R vBilick & Starke.[2]In support of this argument, Mrs Shaw pointed to factual inconsistencies in BT’s evidence and other prosecution witnesses. These inconsistencies were said to challenge BT’s evidence that the offending had taken place while BT was sleeping in certain bedrooms or in the Kurralta Park house, the frequency with which the respondent stayed at BT’s home, and whether the alleged sexual acts had occurred before BT turned 17 years old. It was also submitted that the timing of a particular incident of sexual offending said to have occurred during BT’s parents’ absence on holiday in Fiji was not sufficiently particularised, as evidence of the timing of that holiday was inconsistent and it could have taken place when BT was 17 years old. Issues with the reliability of BT’s evidence and forensic disadvantage were also canvassed by counsel for the respondent.
[2] (1984) 36 SASR 321.
By contrast, the prosecutor sought to delineate particular incidents of sexual offending on the basis that although BT had not been able to give evidence of identifiable incidents, for example, by recalling a piece of clothing worn or linking it with a specific memorable occasion or grade at school, his evidence was sufficiently particularised. The prosecutor submitted that BT’s evidence reached the level of identifying certain acts that occurred in certain bedrooms of the house, and timeframes during which he stayed in those bedrooms by reference to outside events, such as a period of time when BT’s grandmother was living in the house, and when BT met the respondent.
After hearing argument the Judge ruled that there was no case to answer and directed a verdict of acquittal. In doing so, his Honour observed that:[3]
[27]The evidence of [BT] quoted or extracted above taken at its highest, demonstrates the highly generalised nature of the allegations and that he was quite non-specific as to times and dates, to the point that he was in no position to be in any certainty as to what age he was, what grade of (or which) school he was in, what bedroom he was in or whether his grandmother remained in the family home at relevant times. Furthermore, he was singularly unable to relate or reference any particular incident to any particular occasion, circumstance or event, beyond ‘what typically or routinely or generally occurred’, to the point that it is simply impossible to identify two or more of the requisite acts. In those circumstances on the basis of the most favourable case for the prosecution, the evidence was incapable of supporting a conclusion of proof beyond reasonable doubt: R v Bilick & Starke.
(citations omitted)
The appeal
[3] R v Hamra (No 2) [2016] SADC 8 at [27].
Jurisdiction
Before turning to the substantive ground of appeal, it is necessary to address the preliminary issue of whether the appellant has the power to appeal an acquittal in a trial by judge alone.
The Director appeals the respondent’s acquittal pursuant to s 352(1)(ab) of the CLCA. Section 352(1)(ab) provides from the time of the respondent’s acquittal:
(ab)if a person is tried on information and acquitted, the Director of Public Prosecutions may, with the permission of the Full Court, appeal against the acquittal on any ground—
(i) if the trial was by judge alone; or
(ii) if the trial was by jury and the judge directed the jury to acquit the person;
Section 352(1)(ab) was first enacted by the Criminal Law Consolidation (Appeals) Amendment Act 2000 (SA) (the 2000 Appeals Amendment Act) which, by s 2, inserted s 352(1)(ab) of the CLCA in the following terms:
if a person is tried on information and acquitted and the trial was by a judge sitting alone, the Director of Public Prosecutions may appeal against the acquittal on any ground with the leave of the Full Court.
The 2000 Appeals Amendment Act came into operation on 6 July 2000 and, by s 4, it made the following transitional arrangement:
The amendments affected by this Act only apply in relation to proceedings for offences alleged to have been committed after its commencement.
This Court considered whether an amended appeal regime applies to adjudications made in proceedings commenced before the relevant amendment in Dolphin v Workers Rehabilitation & Compensation Corporation. The exegesis of Cox J in that case warrants lengthy citation:[4]
[4] (Unreported, Supreme Court of South Australia, Cox, Lander and Bleby JJ, 9 December 1997).
The rule of the common law is that ‘in general, when the law is altered during the pendency of an action the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights’: Continental Liqueurs Pty Ltd v G F Heublein and Bro. Inc. (1960) 103 CLR 406, per Kitto J at 427. The rule finds expression in s16 of the Acts Interpretation Act 1915 …
The rule has been held to preserve a right of appeal against the order of a court or tribunal even though the right of appeal had been abolished before the party in question had had an opportunity of exercising it. In Colonial Sugar Refining Co. Ltd v Irving [1905] AC 369, an action between the parties in the Supreme Court of Queensland that had been instituted on October 25, 1902 had still to be decided when, on August 25, 1903, the Judiciary Act 1903 (C/W) came into force and abolished appeals from the Supreme Court to the Privy Council in actions of that kind. In September 1903 the Supreme Court gave judgment in the matter. Subsequently the Court gave the appellant leave to appeal. The respondent argued before the Privy Council that the appeal was incompetent but the point was rejected. Lord MacNaghten on behalf of their Lordships said (at 372-3) -
‘As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is, Was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested.’
Colonial Sugar Refining Co. Ltd v Irving was decided on common law principles. More recent cases in this area have turned on the interpretation of the expression ‘any right … accrued … prior to the repeal, amendment or expiry’ in s16 of the Acts Interpretation Act or some local equivalent.
In Esber v Commonwealth of Australia (1992) 174 CLR 430, the applicant for the review of a determination under a Commonwealth worker’s compensation Act had applied for the review before the Act was repealed. It was held by a majority of the High Court that the repeal did not affect the right of review that had accrued to him under the repealed Act once he had lodged his application for review. The right was protected by the Commonwealth analogue to s16. Esber’s Case is distinguishable on the facts from the present appeal, as the appeal from the Review Officer had not been instituted by the Corporation before the 1995 amendment came into force.
…
In all cases such as these the question arises whether the possible application of the Acts Interpretation Act is displaced by the repealing or amending legislation. That was decisive in Yao v Minister for Immigration (1996) 69 FCR 583, in which there is a discussion of the notion of an ‘accrued’ right in these common form interpretation rules.

The discussion in Dolphin’s case supports the proposition that, absent express provision to the contrary, where a first instance proceeding is pending and the parties to that proceeding have rights of appellate review at the time of instituting that proceeding, any amendment of appeal provisions will not apply to them. However, and importantly for present purposes, the common law principle is premised on the potential litigants having no ‘right’ to a particular trial or appellate procedure at the time of the events which constitute the matter that is later brought before a court. That premise reflects fundamental common law principles. The substantive rights of the parties, absent express statutory provision to the contrary, are determined in accordance with the law as it is at the time of the events. However, when, and if, that controversy is brought before a court it is adjudicated in accordance with the then operative procedures of the court. The procedures then in force will continue to apply to the litigation unless subsequently enacted rules expressly provide otherwise.
It follows that, but for the enactment of the transitional provision in s 4 of the 2000 Appeals Amendment Act, the newly inserted s 352(1)(ab) would have had no application to verdicts of acquittal delivered in proceedings which had already been instituted, but would have operated on judgments of acquittal entered in a trial by judge alone in proceedings instituted after 6 July 2000, whenever the offence was committed. The transitional provision enacted by s 4 of the 2000 Appeals Amendment Act ensured that the appellate jurisdiction to review acquittals operated prospectively, not only by reference to the initiation of the proceedings but also by reference to the commission of the offence.
The Criminal Law Consolidation (Double Jeopardy) Amendment Act 2008 (SA) (the 2008 Appeal Amendment Act) came into operation on 3 August 2008. It re-enacted the power to appeal against a judgment of a judge sitting alone first given by the 2000 Appeals Amendment Act and added subparagraph (ii) to s 352(1)(ab), which allowed an appeal against an order of acquittal entered on a directed jury verdict of not guilty. A transitional provision, like s 4 of the 2000 Appeals Amendment Act, was not enacted by the 2008 Appeal Amendments Act. By 3 August 2008 s 4 of the 2000 Appeals Amendment Act was spent, applying only to the amendments made by force of that enactment. In accordance with the principles discussed in Dolphin and s 16 of the Acts Interpretation Act 1915 (SA), the additional appellate jurisdiction with respect to directed verdicts was available in all proceedings commenced after the commencement of the 2008 Appeals Amendment Act, whenever the offence was committed. Subparagraphs (i) and (ii) of s 352(1)(ab) of the CLCA could not have been intended to have different temporal applications. It follows that both subparagraphs of s 352(1)(ab) of the CLCA applied to all proceedings, commenced on and after 3 August 2008, whenever the offence was committed. Section 352(1)(ab) as enacted by the 2000 Appeals Amendment Act, continued to apply to all proceedings commenced between 6 July 2000 and 2 August 2008 for offences committed after 6 July 2000.
In Thompson v Mastertouch TV Service Pty Ltd (No 3),[5] the Full Court of the Federal Court held that the word ‘appeal’ in s 24 of the Federal Court of Australia Act 1976 (Cth) (the FCA) did not extend to an appeal against a judgment of acquittal entered by a judge of the Federal Court in a prosecution brought before that Court. In Davern v Messell,[6] it was argued that the scope of the word ‘appeal’ should be read down to exclude an appeal against an acquittal entered on an appeal to a single Judge of the Federal Court on an appeal against a conviction recorded by a magistrate of the Northern Territory. That contention was rejected.
[5] (1978) 38 FLR 397.
[6] (1984) 155 CLR 21.
In Davern, Gibbs CJ accepted that the scope of an appeal provision must be decided as a matter of statutory interpretation but cautioned:[7]
However it is a principle of interpretation that no statute will be construed as abrogating a fundamental principle of the common law [the rule against double jeopardy] unless an intention to do so is clearly expressed.
Nonetheless, the High Court held, by majority, that the rule against double jeopardy did not require the scope of s 24 FCA to be read down to exclude an appeal against a decision to acquit an accused by an intermediate appeal court.
[7] (1984) 155 CLR 21 at 31.
There are no words which can be read down in the 2008 Appeals Amendment Act to achieve the result for which the respondent contends. Rather, the respondent’s contention requires that words be read into the 2008 Appeals Amendment Act to replicate s 4 of the 2000 Appeals Amendment Act. This Court should not imply words into the 2008 Appeals Amendment Act which abrogate the common law position that litigants only attain vested trial and appellate procedural rights when proceedings are commenced.
The repeal and re-enactment of s 352(1)(ab) of the CLCA in 2008 without a transitional provision has the effect that it applies prospectively on proceedings initiated after that date and without any further limitation of the kind imposed by s 4 of the 2000 Appeals Amendment Act.
Construction and application s 50 CLCA
Section 50 of the CLCA relevantly provides:
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.
…
(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—
(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.
...
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.
...
In KBT v The Queen,[8] Brennan CJ, Toohey, Gaudron and Gummow JJ explained the elements of an analogous Queensland provision as follows:[9]
… it is clear from the terms of sub-s (1A) that the actus reus of that offence is the doing, as an adult, of an act which constitutes an offence of a sexual nature in relation to the child concerned on three or more occasions. Once it is appreciated that the actus reus of the offence is as specified in sub-s (1A) rather than maintaining an unlawful sexual relationship, it follows, as was held by the Court of Appeal, that a person cannot be convicted under s 229B(1) unless the jury is agreed as to the commission of the same three or more illegal acts.
Before turning to the precise issue in this appeal, it is convenient to note one other matter that arises out of the identification of the actus reus of the offence created by s 229B(1). As already indicated, sub-s (1A) of s 229B requires the doing of ‘an act [which] constitute[s] an offence of a sexual nature ... on 3 or more occasions’, albeit that it does not require proof of ‘the dates or the exact circumstances of [the] occasions’ on which the acts were committed. The sub-section’s dispensation with respect to proof applies only to the dates and circumstances relating to the occasions on which the acts were committed. It does not detract from the need to prove the actual commission of acts which constitute offences of a sexual nature.
It should be noted that, quite apart from any question of fairness to the accused, evidence of a general course of sexual misconduct or of a general pattern of sexual misbehaviour is not necessarily evidence of the doing of ‘an act defined to constitute an offence of a sexual nature ... on 3 or more occasions’ for the purposes of s 229B(1A). Moreover, if the prosecution evidence in support of a charge under s 229B(1) is simply evidence of a general course of sexual misconduct or of a general pattern of sexual misbehaviour, it is difficult to see that a jury could ever be satisfied as to the commission of the same three sexual acts as required by s 229B(1A).
… Having regard to the evidence, it is possible that individual jurors reasoned that certain categories of incident did not occur at all but that one or two did, and more than once, thus concluding that the accused did an act constituting an offence of a sexual nature on three or more occasions without directing attention to any specific act. It is, thus, impossible to say that the jurors must have been agreed as to the appellant having committed the same three acts. Indeed, it may be that, had the jury been properly instructed, they would have concluded that the nature of the evidence made it impossible to identify precise acts on which they could agree.
(citations omitted)
[8] (1997) 191 CLR 417.
[9] (1997) 191 CLR 417 at 422-424.
In The Queen v M, BJ,[10] Vanstone J (with whom Sulan and White JJ agreed) applied the decision in KBT to ss 50(1) and (2) of the CLCA. Her Honour stated:[11]
[70]In my view it follows from the clear wording of s 50(1) and (2) that the actus reus of the offence is more than one act of sexual exploitation of a particular child committed over a period of not less than three days. Therefore, the jury must agree that the accused person committed the same two or more acts of sexual exploitation before convicting. It is within s 50(1) that the actus reus of the offence is given. Section 50(4) is concerned, as I said, with the framing of a charge against the section and cannot derogate from s 50(1).
[10] (2011) 110 SASR 1.
[11] R v M, BJ (2011) 110 SASR 1 at 28-29, [70].
In R v Little,[12] a Full Court of this Court constituted by five justices held that in a prosecution for an offence against s 50 of the CLCA it was an error of law for a trial judge not ‘to direct the jury that it must agree unanimously, or by majority after four hours, that a prescribed pair of the same two acts, from the multiple acts of sexual exploitation alleged, has been proved beyond reasonable doubt’.[13] I will refer to a direction of that kind as an extended unanimity direction.
[12] (2015) 123 SASR 414.
[13] (2015) 123 SASR 414 at 415.
The issue raised by this appeal is whether the decisions of this Court in M, BJ and Little imply that an offence against s 50 of the CLCA cannot be proved unless the acts of sexual exploitation are shown to have occurred in circumstances so peculiar that each occasion of abuse can be separately identified. The issue, as it has been presented, leaves it somewhat obscure whether the requirement for proof of that kind arises as:
(a)an element of the offence;
(b)a matter of particularisation necessary to satisfy a statutory or common law fairness rule of criminal trial procedure; or
(c)by necessary implication from the extended unanimity rule.
As will shortly be seen, the text of s 50 of the CLCA precludes (a) and (b) as the source of the requirement. Moreover, as Vanstone J observed in The Queen v M, BJ, the actus reus of the offence must be found in s 50(1) of the CLCA, s 50(4) being concerned with a matter of procedure only. The extended unanimity direction can only apply to the elements of the offence, therefore if (a) is not a source of the rule, the extended unanimity direction cannot be the source either.
Section 50 of the CLCA requires no more than the commission of two or more prescribed sexual offences over a period of three days or more. Importantly, unlike its analogue in s 47A(2)(b) of the Crimes Act 1958 (Vic), which was considered in KRM v The Queen[14] and R v SLJ,[15] s 50(2) of the CLCA does not incorporate as an element of the offence the commission of a prescribed sexual act on particular occasions. On the contrary, s 50(2) of the CLCA contemplates that it may not be possible to particularise the occasion of the act in a way which would allow it to be the subject matter of a charge of a prescribed sexual offence.
[14] (2000) 206 CLR 221.
[15] (2010) 24 VR 372.
In historical sexual offence trials in which childhood recollections of peripheral details have often faded, it is not uncommon for a complainant to testify along the lines of the following example:
·The first of many sexual offences which occurred when she was about 15 years of age occurred on the occasion of, or shortly before or after her birthday in June;
·The same prescribed offence occurred weekly, or on many occasions, thereafter but she cannot recall any peculiar circumstance in which any one of the subsequent offences was committed;
·The offending continued until, or shortly before or after, her 16^th birthday.
On a charge of offending against the complainant over the year in which she was aged 15, the inability of the complainant to describe any surrounding circumstances peculiar to any of the subsequent occasions may bear on the reliability or creditworthiness of her testimony but, if her testimony is accepted, the elements of s 50 of the CLCA that the accused committed two or more prescribed sexual offences over a period of three or more days will have been proved. This cannot be doubted in a trial by judge alone. On principle, there should be no different result in a jury trial. When given to a jury, the extended unanimity direction requires only that the jury, unanimously or by majority, be satisfied that the offending occurred as testified by the complainant. If so satisfied, the jury will unanimously, or by majority, have agreed on the commission of the same offences, as prescribed by s 50 of the CLCA or otherwise, over a period of more than three days, even though none of the prescribed offences is separately identified.
Of course, most cases are more complex and practical difficulties will arise. For example, if there is a disputed body of evidence that the defendant was overseas in the first six months, and another disputed body of evidence that the complainant and her family moved to live interstate in the last six months of that year, the directions will have to accommodate the possibility that some jurors may be satisfied that there was offending in the first six months but not the last and others may be satisfied of the converse. The jury in such a case would need to be directed that they could only convict if they unanimously, or by majority, accepted the complainant’s evidence despite evidence to the contrary, with respect to either the first six months, or the last six months, or the whole year. However, agreement on the elements of the offence does not require agreement on two or more acts of prescribed sexual offending separately identified by reference to their peculiar surrounding circumstances.
Importantly, s 50(4)(b) of the CLCA does require a course of conduct to be alleged, and s 50(4)(a) requires particularisation of the nature and period of time over which the acts constituting that course of conduct were committed. Those requirements further underscore that the elements of the offence enacted by s 50(1) of the CLCA do not require identification of particular occasions. The period of time and the nature of the acts were particularised on the Information in this case.
Section 50(4)(b)(i) of the CLCA expressly provides that the particular acts need not be identified with the same particularity as might be required if the acts were charged individually as sexual offences. Section 50(4)(b)(ii) of the CLCA goes further and removes any requirement for particularisation of the acts, or occasions, of prescribed sexual offending by reference to the place or order of offending. The particularisation requirements of the common law as considered in R v S,[16] are to that extent, abrogated. Section 50(4) of the CLCA also modifies the application of s 277 of the CLCA to the same extent.
[16] (1992) 58 SASR 523.
Importantly, s 50(4)(b)(ii) of the CLCA goes further than its analogue found in s 47A(3) of the Crimes Act 1958 (Vic). In KRM v The Queen,[17] s 47A(3) of the Crimes Act 1958 (Vic), at the relevant time, provided only that “it is not necessary to prove the dates or the exact circumstances of the alleged occasions”. Subsequently, it was amended to provide:
(3)It is not necessary to prove an act referred to in subsection (2)(a) or (b) with the same degree of specificity as to date, time, place, circumstances or occasion as would be required if the accused were charged with an offence constituted by that act instead of an offence against subsection (1).
[17] (2000) 206 CLR 221.
Even though the requirements of procedural fairness are not excluded by s 50(4) of the CLCA, the statements made in KRM and SLJ cannot be applied without modification to s 50 of the CLCA. The abrogation by s 50(4)(b)(ii) of the CLCA of any requirement to identify particular acts and/or occasions, or to particularise the order in which they occurred, much more effectively remedies the mischief to which the enactment of offences of this kind is directed.
It follows that neither the elements of the offence or its particularisation, nor any implication of the extended unanimity direction require the occasion on which each act of sexual exploitation was committed to be identified in a way which distinguishes it from other acts of sexual exploitation.
The respondent contended that the decision of this Court in R v Johnson[18] decides to the contrary. In Johnson, this Court allowed an appeal against a conviction following trial by jury on a count of persistent sexual exploitation of a child contrary to s 50(1) of the CLCA. The particulars of the offence in Johnson were that over a period of almost two years the defendant committed more than one act of sexual exploitation namely penile-vaginal intercourse on a person under the age of 17 years. The appeal was brought on the ground that the verdict was unreasonable. The complainant gave evidence that the defendant regularly had penile-vaginal intercourse with her every week or so when she was 15 and 16 years of age. She testified that the offending happened at home and, generally, in her bedroom.
[18] R v Johnson [2015] SASCFC 170.

The Judge directed the jury that before they could convict the accused they ‘must be agreed as to the specific acts of sexual exploitation which make out the offence’. The Judge directed the jury that it was sufficient that ‘the prosecution prove[d] the accused committed no less than two alleged acts of sexual exploitation and, secondly, that the proved acts each amounted to an offence of carnal knowledge’.[19]
[19] R v Johnson [2015] SASCFC 170 at 43.
In Johnson, Peek J reasoned that the holdings in M, BJ and Little that ‘the jury must agree that the accused person committed the same two or more acts of sexual exploitation before convicting’ implied a requirement that in order to do so ‘there must be a minimum amount of evidence adduced by the prosecution to enable jurors in the jury room to delineate two offences (at least) and to agree that those two offences were committed’:[20]
[20] R v Johnson [2015] SASCFC 170 at 51, [110].
[110]As can be seen from the above passages, the decisions in KBT, M, BJ and Little were concerned only with the sufficiency of the direction given by the Judge. However, in the present case, the appellant makes the more fundamental submission that the evidence here is simply too sparse for the jurors to delineate, and agree with each other as to, any two occasions on which vaginal sexual intercourse occurred within the timeframe of count 3 on the Information.
(emphasis added, citations omitted)
Peek J continued:[21]
[21] [2015] SASCFC 170 at 47-48, [112]-[116].
[112]Of course, the degree of particularity that will enable a jury to delineate two offences, and to agree that they were committed, may be quite low. As simple examples only, an association between the commission of an offence and an identifiable occasion or event preceding, accompanying, or following, may be sufficient.
[113]But sight must be not lost of the fact that the lower the degree of particularity permitted, the harder it is for a truly innocent person to contest a charge by using forensic tools such as establishing an alibi for himself on the occasion of an alleged offence or by challenging the complainant’s evidence by reference to facts associated with her allegation of the offence.
[114]While, a charge of this type does permit a low degree of particularity, in the present case the evidence rises no higher than an assertion that the appellant had vaginal sexual intercourse with VW on many occasions over a period of two years. There is simply no point of identification of any act, let alone two acts, which can be delineated and agreed upon by the jurors.
[115]The authorities of KBT v The Queen, The Queen v M, BJ and R v Little all stand for the proposition that the appellate Court must be satisfied that in a case under appellate review, ‘on the evidence … that all of the members of the majority of the jury who returned the verdict of guilty had necessarily agreed that the same pair of offences had been proved beyond reasonable doubt.’ In the present case, I am unable to reach that state of satisfaction. It was impossible for the jurors who returned the verdict of guilty to have agreed that the same pair of offences had been proved beyond reasonable doubt, simply because it was impossible for them to delineate any such pair of offences.
[116]The verdict of guilty on count 3 cannot stand. The appeal must be allowed and judgment of acquittal be entered on count 3. This result makes it unnecessary to consider grounds 1A and 1B of appeal.
(emphasis added, citations omitted)
Sulan and Stanley JJ agreed with the reasons of Peek J and added:[22]
[2]… 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.
Several observations must be made about those passages.
[22] R v Johnson [2015] SASCFC 170 at [2].
First, the section itself does not require evidence which allows offences to be delineated or identified by reference to differentiating circumstances.
Secondly, the appeal ground in Johnson was that the verdict was unreasonable. The question was therefore whether it was open to the jury to agree either unanimously or by majority, that the same two or more acts were proved beyond reasonable doubt on the complainant’s testimony. The appeal was not brought on the ground of a failure to give the extended jury unanimity direction which is mandated by Little. The application of the proviso which was in issue in Little was not an issue in Johnson. The statements in Little concerning the jury’s need to be able to identify two prescribed offences on which they must, unanimously or by majority have agreed, are referable to what is required before the proviso can be applied in a case in which the extended unanimity direction has not been given. By contrast, in Johnson, the onus was on the appellant to persuade the court that there was necessarily a doubt about the appellant’s guilt because the lack of particularity precluded a finding of the commission of two or more discrete acts separated by the prescribed period of time.
The decision in Johnson setting aside the conviction reflects the finding by the Court of Criminal Appeal that the evidence failed to prove beyond reasonable doubt the commission of two or more such acts. In considering that question, the Court, not unnaturally, referred to the difficulty faced by the jury in reaching a verdict given the lack of particularity. However, whether or not a verdict is unreasonable turns on the evaluation of the evidence by the Court of Criminal Appeal. Minds might differ over the factual question of whether the evidence in Johnson proved that two or more acts of sexual exploitation occurred over the prescribed period of time. However, it is on that factual question which the decision in Johnson rests and must be confined. The decision does not touch the question of principle which must here arise.
Thirdly, the essentially factual nature of the question in Johnson explains the observations of Peek J concerning the difficulty faced by a person charged with a sexual offence which is poorly particularised and his Honour’s reference to some common ‘markers’ used to identify a particular occasion. Considerations such as those may often be important in deciding whether or not the commission of two or more prescribed offences separated by the prescribed period have been proved beyond reasonable doubt. However, these considerations are much less likely to be decisive of the legal question whether or not there is a case to answer, and have no bearing on the proper construction of the offence enacted by s 50 of the CLCA and the determination of its elements.
Application to this case
Although BT was unable to be more specific, he gave clear evidence that the first touching of his genitals by the respondent occurred in the third bedroom of the family home at Morphett Vale, and that thereafter the same fondling occurred in that bedroom and later with more frequency when BT moved into the second bedroom. The conduct escalated in the second bedroom to touching underneath the pyjamas with mutual fondling and ejaculation often occurring. BT also gave clear evidence that during the two week trip to Fiji when he was sleeping in the second bedroom, the respondent sexually interfered with BT every night for that period and on two occasions during that period he placed BT’s penis in his mouth. That had never happened before and it did not happen again after the parents return from Fiji. The sexual abuse stopped when BT was about 17 or nearly 18.
The evidence of BT therefore, if believed, was capable of proving the commission of two or more prescribed sexual offences over a period of three days or more.
For these reasons I consider that the Judge erred in law in directing himself that this evidence was not capable of making out the elements of the offence contrary to s 50 of the CLCA. It follows that the Judge fell into error in returning a verdict of acquittal.
Conclusion
I would allow the appeal. Sections 353(2a) and (3) of the CLCA provide:
(2a)On an appeal against acquittal brought by the Director of Public Prosecutions, the Full Court may exercise any one or more of the following powers:
(a)     it may dismiss the appeal;
(b)     it may allow the appeal, quash the acquittal and order a new trial;
(c)     it may make any consequential or ancillary orders that may be necessary or desirable in the circumstances.
(3)If the Full Court orders a new trial under subsection (2a)(b), the Court—
(a)     may make such other orders as the Court thinks fit for the safe custody of the person who is to be retried or for admitting the person to bail; but
(b)     may not make any order directing the court that is to retry the person on the charge to convict or sentence the person.
I would quash the acquittal and order a new trial. The order for a new trial mandated by statute does not allow for an order to resume the completed trial in which the order of acquittal was wrongly made. The power conferred on the Court of Criminal Appeal by s 353 of the CLCA may be contrasted with the power conferred in appeals from orders made by the Magistrates Court in its criminal jurisdiction. Section 42(5) of the Magistrates Court Act 1991 (SA) provides:
42—Appeals
…
(5)On the hearing of the appeal, the appellate court may exercise any one or more of the following powers:
(a)     it may confirm, vary or quash the judgment subject to the appeal and, if the Court thinks the interests of justice so require, it may vary or quash any other judgment given in the same or related proceedings;
(b)     it may remit the case for hearing or further hearing before the Magistrates Court;
(c)     it may make any other order (including, subject to subsection (5a), an order for costs) that may be necessary or desirable in the circumstances.
…
It is to be noted that in the case of an appeal from the Magistrates Court the Supreme Court may remit the case for “hearing or further hearing” before the Magistrates Court. It is the power to remit for further hearing which is tellingly absent from s 353 of the CLCA.
In so providing, s 42 of the Magistrates Court Act 1991 (SA) replicates s 177(2) of the Justices Act 1921 (SA) pursuant to which the Supreme Court could “remit the case for hearing or for further hearing before the same or any other competent court of summary jurisdiction”.[23]
[23] Justices Act 1921-1975 (SA), s 177(2)(d); Summary Procedure Act 1921 (SA)
…
(2)     Upon the hearing of the appeal the Supreme Court may-
(a)     adjourn the same from time to time;
(b)     mitigate any penalty, forfeiture, or sum;
(c)     affirm, quash, or vary the conviction, order, or adjudication appealed from, or substitute or make any conviction, order, or adjudication which ought to have been made in the first instance;
(d)     remit the case for hearing or for further hearing before the same or any other competent court of summary jurisdiction; and
(e)     make such further or other order as to costs or otherwise as the case requires.
…
The power conferred by s 177(2) of the Justices Act 1921 (SA) to remit for further hearing was thought to be particularly apt where a complaint has been dismissed at the close of the evidence for the prosecution but it is held on appeal that a prima facie case had been made out. The complaint in those circumstances was then usually remitted to the same court of summary jurisdiction for the purpose of completing the hearing according to law. However, the power was also used to prevent the prosecution improving its position by calling evidence which was available and could have been, but was not, called at the original hearing.[24]
[24] Thompson v Higgs [1924] SASR 243; Boden v Grow [1924] SASR 132 at 138; AJ Hannan & L McLean Wright, Summary Procedure of Justices in South Australia (The Law Book Company Limited, 4th ed, 1975) at 195.
The power to remit the case for hearing was exercisable when an information or complaint had been dismissed without evidence being heard, where the court of summary jurisdiction had misunderstood its functions or duties or misunderstood the effect of contradicted evidence.[25]
[25] See AJ Hannan & L McLean Wright, Summary Procedure of Justices in South Australia (The Law Book Company Limited, 4th ed, 1975) at 195. See also Pinchbeck v Gleeson [1926] SASR 379 at 383; Brown v Griffey [1928] SASR 293; Dayman v Simpson [1935] SASR 320.
It is important to remember that the approach to s 177 of the Justices Act 1921 (SA) was much influenced by the ad hoc nature of courts of summary jurisdiction. There was no continuous court of record but a multitude of courts which came into being for, and subsisted only for the purpose of, disposing of the particular complaint of which they were seized.
The power to remit for rehearing served no practical purpose for appeals from orders made by a court of record hearing criminal proceedings on indictment.
The power conferred by s 353(2a)(b) of the CLCA is a single power. If an appeal against an acquittal is allowed, the acquittal must be quashed and, if an acquittal is quashed, there must either be a new trial or a resumption of the trial in which the order for acquittal was made. The compendious power conferred by s 353(2a)(b) allows only the former. The power conferred by s 353(2a), albeit in a modern form, is the same power conferred on the Full Court in the case of an appeal against conviction by s 353(2) to allow the appeal, quash the conviction and either direct a judgment and verdict of acquittal to be entered or direct a new trial. It differs only in the respect that on an appeal against an acquittal, the Full Court may not direct that a judgment of guilty be entered. The reasons for that difference are probably threefold.
First, it recognises that in many cases the acquittal will have been entered in a trial by jury, the trial having been brought to a premature end by the Judge’s direction on a finding of no case to answer and that accordingly the accused should have his or her constitutional right to a new trial before a jury, even if in the Full Court’s view the evidence required a verdict of guilty.
Secondly there are practical reasons why Parliament may not have thought the power necessary. It would be impractical to resume a trial by jury after a directed acquittal because the jury will have disbursed. When a criminal trial is heard by a judge sitting alone who has found no case to answer there is no reason why the judge could not go on to find that, whether there is a case to answer or not, the evidence has not proved the accused’s guilt beyond reasonable doubt.
Thirdly whether the appeal is against an acquittal by judge alone or by jury it reflects a principle that verdicts of guilty should not be returned on the papers. It also probably reflects the practicality that the cases would be rare in which the evidence did not require some assessment of the credibility or reliability of a witness, which assessment should be made after hearing the witness give the evidence in chief and be tested in cross-examination.
An order that a completed trial, which was vitiated by error, resume is neither consequential nor ancillary to an order for a new trial. Whether or not the new trial is assigned to Judge Tilmouth or another judge is a matter for the District Court.
KELLY J: I agree with the order proposed by the Chief Justice and with his reasons.
PEEK J.
Overview
I agree with the conclusion of the Chief Justice that the trial Judge erred in finding that there was no case to answer and that the consequential verdict of “not guilty” should be set aside. However, in all of the circumstances, I would order that the matter be remitted to Judge Tilmouth for further consideration according to law rather than ordering a fresh hearing de novo by a different Judge. My reasons follow.
Construction of s 50 Criminal Law Consolidation Act 1935
Section 50 of the Criminal Law Consolidation Act 1935 (the Act) is set out by the Chief Justice at paragraph [30] herein.
It is to be noted that s 50(4) does not directly address the matter of the substantive elements of the offence created by s 50. Rather, it addresses what is required to constitute a valid Information charging this offence; it replaces the general requirements for a valid Information that are otherwise dealt with by ss 274, 277 and 283 of the Act and by Chapter 3 of the Supreme and District Court Criminal Rules 2014.[26] This is an important distinction to be borne in mind, because it predicates that the substantive elements of the offence are to be largely gleaned from the other provisions of s 50, and that such provisions are to be interpreted in accordance with the usual canons of statutory construction of criminal statutes.
[26] Schedule 3 of the CLCA presently still exists, but its content has been revoked by Rule 20 Supreme and District Court Criminal Rules 2014 in accordance with s 283 of the Act.
The broad background to construction of criminal statutes is that a fundamental principle of the common law is that a minimum level of certainty in charges and convictions is required; and that it is therefore quite beside the point for the prosecution to say that it is not in a position to charge or prove to the required degree of certainty. As Dawson J stated in S v The Queen:[27]
It is not to the point that the prosecution may have found it difficult or even impossible to make an election because of the generally unsatisfactory evidence of the complainant. An accused is not to be prejudiced in his defence by the inability of the prosecution to observe the rules of procedural fairness. (Emphasis added)
[27] (1989) 168 CLR 266, 275.
Similarly, Gaudron and McHugh JJ there stated:[28]
While the evidence as given by J at the trial suggests that there may be practical difficulties in particularizing or identifying one or all of the offences charged, it is not obvious that it is wholly impossible so to do. 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. (Emphasis added)
[28] (1989) 168 CLR 266, 288.
Of course, Parliament is able to alter the balance to which the common law has come, but such legislation must be construed with care. Thus in KRM v The Queen, McHugh J (with whom Kirby J concurred on this point[29]) stated:[30]
[16] Subject to the operation of Ch III of the Constitution, the legislature of the State of Victoria may modify — even abolish — the need for particulars of criminal charges. But an intention to do so should be imputed to the legislature only when it has enacted words that make its intention unmistakably clear. Courts should not lightly infer that a legislature has intended to abolish or modify fundamental principles of the common law such as the principle that an accused person must have a fair opportunity to defend a criminal charge.
[29] At (2001) 206 CLR 221, footnote 139, Kirby specifically indicated that he agreed with the “Reasons of McHugh J at 226-227 [14]-[18].
[30] (2001) 206 CLR 221, 227 [16].
This approach is now usually referred to as the principle of legality. Importantly, a manifestation of an intention to interfere with fundamental rights to some extent does not entirely forestall the application of the principle of legality. Thus in Carr v Western Australia, Gleeson CJ said:[31]
[7] … the general purpose of legislation of the kind here in issue is reasonably clear; but it reflects a political compromise. The competing interests and forces at work in achieving that compromise are well known. The question then is not: what was the purpose or object underlying the legislation? The question is: how far does the legislation go in pursuit of that purpose or object? (Emphasis added)
[31] (2007) 232 CLR 138, 143.

In South Australia v Totani, French CJ stated:[32]
[31] … Applying the “principle of legality”, courts will, of course, construe statutes, where constructional choices are open, so as to minimise their impact upon common law rights and freedoms. That principle, well known to the drafters of legislation, seeks to give effect to the presumed intention of the enacting Parliament not to interfere with such rights and freedoms except by clear and unequivocal language for which the Parliament may be accountable to the electorate. Save to the extent that it imposes something approaching a formal requirement of clear statutory language, the principle of legality does not constrain legislative power. (Emphasis added; citations omitted)
[32] (2010) 242 CLR 1, 28-29 [31].
In Lee v New South Wales Crime Commission, French CJ stated:[33]
[29] A statute said to affect important common law rights and procedural and other safeguards of individual rights and freedoms will be construed “as effecting no more than is strictly required by clear words or as a matter of necessary implication” …
[33] (2013) 251 CLR 196, 217-218 [29].
And Crennan J there stated:[34]
[126] In some cases, a legislative object may involve a public interest which cannot be pursued without some impairment of some private right or immunity. An underlying legislative object is not necessarily to be achieved at any cost, but commonly by striking a balance between competing interests.
[34] (2013) 251 CLR 196, 250 [126].
Thus, although the balance has been altered by the enactment of s 50 of the Act, the question remains as to the degree of change that has been effected.
In KBT v The Queen,[35] the High Court held that the actus reus of the subject Queensland statute consisted of proof of at least three particular acts, and that the trial Judge should have directed the jurors that they were each required to be satisfied as to the commission of the same particular acts (a requirement to be referred to as “extended jury unanimity”). Thus Brennan CJ and Toohey, Gaudron and Gummow JJ stated:[36]
… it is clear from the terms of sub-s (1A) that the actus reus of that offence is the doing, as an adult, of an act which constitutes an offence of a sexual nature in relation to the child concerned on three or more occasions. Once it is appreciated that the actus reus of the offence is as specified in sub-s (1A) rather than maintaining an unlawful sexual relationship, it follows, as was held by the Court of Appeal, that a person cannot be convicted under s 229B(1) unless the jury is agreed as to the commission of the same three or more illegal acts. … The sub-section's dispensation with respect to proof applies only to the dates and circumstances relating to the occasions on which the acts were committed. It does not detract from the need to prove the actual commission of acts which constitute offences of a sexual nature. (Emphasis added)
[35] (1997) 191 CLR 417, 422-423.
[36] (1997) 191 CLR 417, 422-423.
Their Honours later further stated:[37]
Having regard to the evidence, it is possible that individual jurors reasoned that certain categories of incident did not occur at all but that one or two did, and more than once, thus concluding that the accused did an act constituting an offence of a sexual nature on three or more occasions without directing attention to any specific act. It is, thus, impossible to say that the jurors must have been agreed as to the appellant having committed the same three acts. Indeed, it may be that, had the jury been properly instructed, they would have concluded that the nature of the evidence made it impossible to identify precise acts on which they could agree. It follows that the accused was deprived of a chance of acquittal that was fairly open. (Emphasis added)
[37] (1997) 191 CLR 417, 424.
In a similar vein, Kirby J stated:[38]
[38] (1997) 191 CLR 417, 428, 429 and 432.
… The provisions of s 229B(1A) are clearly intended to strike a balance between the need for a measure of precision in the proof of the offence, on the one hand, and, on the other, the need to recognise that it may not be possible for a complainant to identify exactly the dates and circumstances of the events said to prove the maintenance of the relationship.
…
The Court of Appeal recognised the particular dangers which general allegations of sexual dealings, lacking in detail, could present for the fair trial of a person accused of an offence against s 229B of the Code. It accepted the over-riding obligation of a trial judge to warn the jury about the dangers inherent in imprecise evidence. It therefore determined that the appellant was entitled to particulars of the offence against s 229B(1) of the Code, although having regard to the terms of s 229B(1A), he was not entitled to have specific dates or exact circumstances. The Court of Appeal concluded:
Although s 229B of the Code was undoubtedly intended to avoid the degree of specificity which might otherwise have been required, necessitating a number of separate, fully detailed allegations, it stops short of authorising trials conducted as a contest between generalised assertions which can only be met by generalised denials.
…
Section 229B(1A) provides that the prosecution must prove that the offender has done an act constituting an offence of a sexual nature on three or more occasions. This statutory prerequisite must be given full effect. This is because it amounts to a parliamentary recognition of the risks involved in the offence. Those risks include the exposure of a person to conviction upon generalised evidence which it may be difficult or impossible to disprove, which need not be confirmed by testimony other than that of the complainant and which may result in a trial involving little more than accusation and denial. These risks provide reasons, quite apart from the general rule of construction ordinarily applied to a criminal statute, for adopting an approach to the preconditions laid down by Parliament which is rigorous and defensive of the fair trial of the accused.
(Emphasis added)
In the later decision of the High Court in KRM v The Queen,[39] the subject provision was s 47A(3) of the Victorian Crimes Act 1958 which provided:
(3) It is not necessary to prove an act referred to in sub-section (2)(a) or (b) with the same degree of specificity as to date, time, place, circumstances or occasion as would be required if the accused were charged with an offence constituted by that act instead of an offence against sub-section (1).
[39] (2001) 206 CLR 221.
While there was a difference in emphasis between the Justices, the Court again took the approach that the subject legislation “stops short of authorising trials conducted as a contest between generalised assertions which can only be met by generalised denials”.[40]Thus McHugh J stated:[41]
[14] … Section 47A(3) provided at the relevant time that it “is not necessary to prove the dates or the exact circumstances of the alleged occasions”. But that does not mean that the charge could or now can be proved by a blanket assertion that on three or more occasions the complainant and the accused engaged in an act that falls within a category specified in s 47A(2). This was recognised by the Court of Appeal of the Supreme Court of Queensland when it said of the Queensland equivalent of s 47A that “it stops short of authorising trials conducted as a contest between generalised assertions which can only be met by generalised denials”.
[40] From the judgment of Fitzgerald P, Moynihan and Mackenzie JJ in R v Thompson (1996) 90 A Crim R 416, 419, approved by McHugh J and Kirby J in KRM.
[41] Reasons of McHugh J at 226-227 [14].
McHugh J here refers to the judgment of Fitzgerald P, Moynihan and Mackenzie JJ in R v Thompson which had earlier stated:[42]
It was also submitted by the prosecution that the appellant's argument, if successful, would present a “formidable obstacle” to achieving a conviction for an offence against s 229B(1). There are a number of answers to such a submission. The code is a penal statute, and required to be construed accordingly; the authorities give no support to a proposition that a statutory provision creating an offence should be given a construction which it would not otherwise bear so as to facilitate the task of the prosecution. Secondly, the requirement of specificity, in allegations made against accused persons has long been accepted as an integral requirement of the criminal justice system, as essential to the protection of an accused; there is no justification for departing from such entrenched principle, so recently reaffirmed by the High Court in Walsh v Tattersall (1996) 88 A Crim R 496 to a greater extent than is provided for by material statutory provision.
[42] (1996) 90 A Crim R 416, 419. This was the decision from which the appeal in KBT v The Queen (1997) 191 CLR 417 was brought. The decision of the Court of Criminal Appeal was approved by the High Court, the appeal being allowed in relation to the application of the proviso only.
In KRM, Kirby J concurred with McHugh J’s above analysis.[43] Kirby J further stated:
It is true that the Act relieves the complainant of the need, or the prosecution of the requirement, to prove the “dates or the exact circumstances of the alleged occasions”. But “occasions” there must still be. There was no specific evidence of any such “occasions” tendered in support of the relationship offence. There was at most an allusion back to the evidence that had been given in support of the seventeen specific counts, with the assertion by the complainant that the same thing was “always happening” and was “very routine” and “very frequent”. Again, I agree with what McHugh J has written about the purpose and extent of the relief from particularity that provisions such as s 47A(3) of the Act provide.[44] The prosecution does not have to prove the date or exact circumstances of an alleged offence; but that is all.
[43] At footnote 139, Kirby specifically indicated that he agreed with the “Reasons of McHugh J at 226-227 [14]-[18]”.
[44] Kirby J’s footnote 139 referred to immediately above appears at this point.
The joint judgment of Gummow and Callinan JJ was perhaps less expansive, but their Honours clearly considered that there must be “sufficient to designate the particular occasion” and “some degree of specificity as to date, time, place, circumstances or occasion of each relevant act”.[45]The context of that conclusion was the following paragraph:[46]
[68] There are further questions to be considered. Does the use of the word “occasions” signify a requirement of proof of circumstances and places sufficient to enable the accused to know precisely how, when and where the accused did the three unlawful acts? Would the prosecution be obliged to provide an accused with particulars of these? In our opinion the use of the word “occasions” does not produce those consequences. The discernible intent of the section was to create an offence, the component parts of which by their very nature may have occurred over a long period, in the past, and in circumstances in which precise recall of detail will not only be difficult for a complainant, but also may provide fertile ground for cross-examination of him or her on behalf of an accused. If a legislature intends that the circumstances of an occasion be identified, we would expect that the legislation would give an indication accordingly as it did in s 35 of the Evidence Act 1958 (Vict). That section obliges a cross-examiner to put to a witness the circumstances of a prior inconsistent statement “sufficient to designate the particular occasion” of it as a condition of its proof if the witness denies making it. And indeed this is what the legislature subsequently chose to do when it enacted an amendment of s 47A(3) in 1997 to refer to, and thereby to require some degree of specificity as to date, time, place, circumstances or occasion of each relevant act.
(Emphasis added)
[45] (2001) 206 CLR 221, 245.
[46] (2001) 206 CLR 221, 245.
If one takes that approach of Gummow and Callinan JJ (if anything, a less favourable approach for the accused than that of McHugh J and Kirby J), it remains clear that there is a matter of degree involved here; there must come a time when there is simply no, or no sufficient “degree of specificity as to date, time, place, circumstances or occasion of each relevant act sufficient of proof” and the trial of a criminal charge simply becomes “a contest between generalised assertions which can only be met by generalised denials”.
In the later decision of the Victorian Court of Criminal Appeal in The Queen v SLJ, s 47A(3) remained in exactly the same form as when considered by the High Court in KRM v the Queen (as reproduced above). The Court stated:[47]
[6]     In oral argument, however, the focus was not on whether sufficient qualifying occasions could be found in the evidence. Instead, senior counsel for the applicant drew attention to parts of the evidence given by the complainant which, he contended, were incapable of founding a conviction for this offence but which the judge had told the jury could be considered for that purpose. According to the submission, the relevant parts of the evidence simply described the repetitive doing of like acts throughout the period in question. The complainant did not (indeed, could not) distinguish any sexual act from any other sexual act. The complainant did not (indeed, could not) distinguish any occasion from any other occasion. Moreover, there was no other evidence adduced (for example, an item of circumstantial evidence) which would have permitted the jury to differentiate either any occasion from any other occasion or any sexual act from any other sexual act.
In other words, with respect to the sexual interference by the applicant of the complainant either in the applicant’s home office in his garage or in the complainant’s bedroom at and inside the complainant’s house, the evidence given by the complainant was so ‘general’ that it was impossible for any jury ever to be satisfied as to the commission of any sexual act by the applicant which constituted the offence of sexual penetration of a child under the age of 16 or the offence of any indecent act with a child under the age of 16.
[7]     In response, senior counsel for the Crown conceded that this submission was correct and that the judge had erred in his directions to the jury concerning the use of the evidence in question. For reasons which follow, we were satisfied that the concession was properly made.
[8]     It is well established that evidence of ‘a general course of sexual misconduct’ or of ‘a general pattern of sexual misbehaviour’ is not, or not necessarily, evidence of ‘an act … which would constitute an offence’ for the purposes of s 47A.[48] Although it is not necessary for the prosecution to prove the dates or ‘exact circumstances’ of the act(s) said to constitute the offence, the prosecution must nevertheless:
… prove the circumstances or occurrences surrounding each of the acts in sufficient detail to identify each ‘occasion’. Reference to circumstances or occurrences happening at a particular time is the usual way of identifying or describing an ‘occasion’.[49]
[9] Although s 47A(3) relieves the prosecution of the necessity to prove a relevant act with ‘the same degree of specificity’ as would be required if that act were alleged to constitute a substantive offence, there must nevertheless be ‘some degree of specificity as to date, time, place, circumstances or occasion of each relevant act’.[50] This is so both as a matter of fairness to the accused and because of the necessity of the jury’s being satisfied as to the commission of the same three acts.[51]
[47] (2010) 24 VR 372, 373-374 (Maxwell P, Buchanan and Bongiorno JJA.)
[48] KBT v The Queen (1997) 191 CLR 417, 423 (‘KBT’).
[49] KRM v The Queen (2001) 206 CLR 221, 227 (McHugh J) (‘KRM’).
[50] Ibid 245–6 (Gummow and Callinan JJ).
[51] KBT (1997) 191 CLR 417, 423.
The Court later referred to the trial Judge’s summing up and concluded:[52]
[16]    With respect, the critical question was not whether the evidence disclosed ‘qualifying offences’, that is, whether acts of the kind alleged would, if proved to have occurred, constitute one or more relevant sexual offences. Rather, the question was whether the evidence in question was capable of supporting a conclusion, beyond reasonable doubt, that the applicant had on an occasion – identified with ‘some specificity’ – done an act which constituted a relevant sexual offence.
[17]    In our view – and as senior counsel for the Crown conceded – this evidence was not capable of supporting such a conclusion. As is apparent from the complainant’s repeated references to what the accused ‘would’ do to her, she was describing a course of conduct. She was giving an account of what typically or routinely or generally occurred. There was nothing which distinguished one offending act from another.
[18]    It is unnecessary to multiply examples. The concession by the Crown extended – rightly, in our view – to the other four passages in the charge said to manifest the same error. In a similar fashion, his Honour, in those parts of his charge, instructed the jury that they could find qualifying offences in undifferentiated descriptions of offences repeatedly committed over time. (The complainant’s evidence was expressed in language of the following kind: ‘the normal routine was …’ and ‘he would always …’). Accordingly, there is every likelihood that the jury will have found a qualifying offence or offences in evidence which simply did not permit such a finding to be made, and on that basis found the applicant guilty.
The South Australian decisions on s 50 of the Act up to R v Little
[52] (2010) 24 VR 372, 375-376.
In the decision of this Court in The Queen v M, BJ,[53] Vanstone J (with whom Sulan and White JJ agreed) applied the decision in KBT v The Queen to ss 50(1) and (2) of the Criminal Law Consolidation Act 1935. Her Honour stated:[54]
In my view it follows from the clear wording of s 50(1) and (2) that the actus reus of the offence is more than one act of sexual exploitation of a particular child committed over a period of not less than three days. Therefore, the jury must agree that the accused person committed the same two or more acts of sexual exploitation before convicting. It is within s 50(1) that the actus reus of the offence is given. Section 50(4) is concerned, as I said, with the framing of a charge against the section and cannot derogate from s 50(1). (Emphasis added)
[53] (2011) 110 SASR 1.
[54] R v M, BJ (2011) 110 SASR 1, 28-29 [70].
However, in the subsequent decision in The Queen v C, G,[55] although recognising that “section 47A of the Crimes Act 1958 (Vic) is in similar terms to s 229B of the Queensland Criminal Code”,[56] the Court declined to follow the approach of either the High Court in KBT or that of the Victorian Court of Criminal Appeal in The Queen v SLJ on the basis that “Section 50 of the Criminal Law Consolidation Act 1935 is in markedly different terms to the Queensland and Victorian provisions”.[57] In coming to this conclusion the Court did not refer to the contrary view taken in The Queen v M, BJ.[58]
[55] (2013) 117 SASR 162.
[56] (2013) 117 SASR 162, 187 [85].
[57] (2013) 117 SASR 162, 186 [185].
[58] (2011) 110 SASR 1.
It was in these circumstances that a court of five Justices was later convened in R v Little.[59] The complainant there had asserted a large number of different acts and the trial Judge did not specifically direct the jury that the jurors all had to agree on (at least) two of the asserted acts. The court decided that the decision in The Queen v M, BJ[60] that the approach of the High Court in KBT v The Queen should be taken was correct[61] and stated:
[10] The Judge’s directions do not expressly state whether he is addressing the jury as a single body or the individual jurors. In particular the Judge did not expressly direct the jury that before it could return a verdict of guilty, it must either unanimously, or by statutory majority, find beyond reasonable doubt that the accused had committed at least one pair of the same two acts within a period of not less than three days.
[59] [2015] SASCFC 118.
[60] (2011) 110 SASR 1.
[61] The Court in Little was specifically referred to the prior decision in The Queen v C, G (2013) 117 SASR 162 in written and oral argument. The Court considered that decision, although it is not specifically referred to in the judgment of the Court.

In the present case, the task at the case to answer stage was simply to identify (at least) two asserted acts of sexual exploitation, each of which sufficiently delineated an act of sexual exploitation such as to satisfy the requisite minimum level of specificity.
The Chief Justice has referred at paragraphs [8]-[12] of his judgment to various acts deposed to by BT. I consider that a number of those asserted acts do each qualify as satisfying the requisite minimum level of specificity as discussed above. (It may be that other asserted acts would not comply with this requirement, but that is none to the point at the case to answer stage.)
I therefore agree that the Judge erred in finding that there was no case to answer and in entering judgment of acquittal at the stage that he did.
Appropriate orders – Double Jeopardy considerations
In Pearce v The Queen, McHugh, Hayne and Callinan JJ stated:[78]
[10] If there is a single rationale for the rule or rules that are described as the rule against double jeopardy, it is that described by Black J in Green v United States:
The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. (Emphasis added)
[78] (1998) 194 CLR 610, 614.
The High Court in recent times has made a number of pronouncements concerning the importance of the principles of double jeopardy in the context of Crown appeals against sentence. Thus in Everett v The Queen, Brennan, Deane, Dawson and Gaudron JJ stated:[79]
[A] court of criminal appeal must, in the absence of clear statutory direction to the contrary, recognize that there are strong reasons why the jurisdiction to grant leave to the Attorney-General to appeal against sentence should be exercised only in the rare and exceptional case. An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed.
[79] (1994) 181 CLR 295, 299.
In the decision of this Court in R v Brougham (Brougham), it was observed:[80]
[7] The application of the double jeopardy principles is all the stronger in a case such as the present which concerns an application for permission to appeal against an acquittal rather than a sentence; at common law, citizens traditionally had a fundamental right to be spared the further jeopardy of an appeal from an acquittal after a trial in a superior court. The basis of the double jeopardy principles was described thus by President Kirby (as he then was) in the New South Wales Court of Appeal decision of Cooke v Purcell:[81]
It is to be noted that, at the heart of this principle, as so expounded, is not the avoidance of the risk of double punishment as such but the avoidance of vexation, the misuse of the great authority of the State and the potential oppression that may be involved in double trial and double risk of conviction. The principle has a basis different in kind from the related rules which promote finality of litigation, such as res judicata and issue estoppel. … The principle at stake in the development of the double jeopardy rule is grounded in something more fundamental than the prevention of re-litigation or the promotion of finality of proceedings. It is based, ultimately, upon a perceived principle fundamental to civil rights.
This much has been recognised in jurisdictions like our own which, unlike the United States, provide no constitutional guarantee against double jeopardy. Thus in Cullen v The King[1949] SCR 658 at 668, long before the Charter, Rand J in the Canadian Supreme Court said:
At the foundation of the criminal law lies the cardinal principle that no man shall be placed in jeopardy twice for the same matter and the reasons underlying that principle are grounded in deep social instincts. It is the supreme invasion of the rights of an individual to subject him by the physical power of the community to a test which may mean the loss of his liberty or his life; and there is a basic repugnance against the repeated exercise of that power on the same facts unless for strong reasons of public policy.
…
[9] Looking at the broader perspective, a number of the judgments of the High Court refer to the double jeopardy principles in terms such as deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy.[82]Such statements are not mere incantations to be recited and as quickly discarded. Although the statutory position is that the prosecution may now apply for permission to appeal against such a verdict in certain circumstances, this Court will have close regard to the double jeopardy principles when considering whether to grant such an application. It remains the case that an acquittal by a superior court should, except in exceptional circumstances, be final. (Emphasis added)
[80] [2015] SASCFC 75.
[81] (1988) 14 NSWLR 51, 55-56.
[82] Malvaso v The Queen (1989) 168 CLR 227, 234; Everett v The Queen (1994) 181 CLR 295, 305; Munda v State of Western Australia (2013) 249 CLR 600, 628.
Consideration
As I understand it, the applicant (if successful in establishing that the Judge erred in finding no case to answer) seeks an order for a retrial in the sense of a trial de novo before a different Judge. On the other hand, the respondent understandably submits that permission to appeal should not be granted and that there should be no disturbance at all of the acquittal that has been recorded.
Such a submission by a respondent might well be accepted in an appropriate case, but the question is whether the present is that case. In Brougham, the following observations were made concerning prosecution appeals brought in relation to errors by a Judge in directing a jury to acquit:[83]
[63]    … such applications may relate to (at least) two different kinds of cases. One kind may involve a question of law concerning the elements of the offence, with the defence having asserted at trial that there is no evidence of a particular matter and the prosecution asserting at trial, and on appeal, that that matter is not an element of the offence at all. In such a case, it may be apparent that there is no defence to the charge other than the legal contention as to the required elements of the charge.
[64]    However, the words of s 352(1)(ab)(ii) are wide enough to capture the quite different kind of case where the elements of the charge are agreed and the defence contention is simply that the evidence is insufficient to prove one (or more than one) of those elements beyond reasonable doubt. In such circumstances, the mere fact that the trial Judge errs in deciding that there is no case to answer will not necessarily be sufficient to warrant a grant of permission to appeal, for the prosecution case may well still be quite weak and such that an acquittal may be called for in any event.
[65]    Thus, even if the Court of Criminal Appeal considers that there was a case to answer, it will be necessary for the court to also consider whether permission to appeal is warranted in all the circumstances and, even if it is, whether the appeal should nevertheless still be dismissed pursuant to the residual discretion connoted by the use of the term “may allow” (emboldened above).[84] The following remarks by Burchett AUJ (with whom Malcolm CJ and Wheeler JJ concurred) in R v Turner are helpful here:[85]
[24]    For these reasons, the appeal fails. But, before parting with the case, I should make it clear that, had the Crown shown there was a case to answer, an order for a new trial made pursuant to s 690(3) would not by any means automatically have followed. Section 690(3) provides that the Court “may order a new trial”. A discretion is involved, and in its exercise the Court should regard the principle of double jeopardy, not as abrogated, but as modified, by the Crown’s right of appeal, which, as I have said, Wickham J has described as “unique”. It is for a special case, and where a verdict is directed on the ground the evidence is inadequate, but this Court thinks there was just enough to go to the jury, public justice may call only weakly for a further hearing, while private justice to the respondent may require full weight to be given to the fact that once already he has stood his trial.
(Emphasis added)
[83] [2015] SASCFC 75.
[84] As to the residual discretion in such circumstances, in The Queen v PL (2009) 261 ALR 365, Spigelman CJ (with whom McClellan CJ at CL and RA Hulme J concurred) stated:
[80] … The issue that has arisen for the first time with respect to s 107, is whether the discretions found within the words “may quash the acquittal” and “may order a new trial” are relevantly unconfined. …
[83] It is well established that the word “may” appearing in some legal texts must be understood as “must”. With respect to a legislative scheme that overturns a long established fundamental principle of the criminal law, the word “may” cannot be so construed. The double jeopardy principle is of that character. (Cf R v Snow (1915) 20 CLR 315 esp at 322, 362; R v Cheng (1999) 48 NSWLR 616, [32]-[34]; R v JS (2007) 175 A Crim R 108, [26]-[32]).
[85] [2001] WASCA 344.
In Brougham, the following further observations were made concerning prosecution appeals brought pursuant to s 352(1)(ab)(i) of the Act in relation to an error by a Judge in a Judge alone trial:
[66]    … Speaking generally, a major problem with prosecution appeals against an acquittal by a Judge sitting alone is that even if a blemish on the written judgment of some degree of seriousness is identified, it may well be that, if that blemish had been drawn to the attention of the Judge, he or she may still have acquitted the respondent.
[67]    For example, the prosecution may complain on appeal about an error of law by the Judge but the nature and consequences of errors of law may vary greatly. Importantly, the error in question may not have been causative of the acquittal in circumstances where the weakness of the prosecution case may have led to an acquittal in any event. This is hardly a particularly modern observation; it is interesting to note that in the early decision of the High Court in R v Snow, Powers J complained about the prosecution seeking to rely on an asserted error of law without addressing the strength (or the lack thereof) of the prosecution case. His Honour observed:[86]
The Crown has not submitted to the Court any evidence or facts to enable the Court to decide whether there was any evidence on which a jury might properly have convicted the accused. The contrary was strongly urged by his counsel, Sir Josiah Symon. No primâ facie case on the merits has been submitted (In re Eather v The King). The Crown relied solely on the one fact, that there was a mistrial because of the act of the learned Judge in deciding as he did on the question of law referred to.
[68]    A simple example of the problem occurs when a Judge expresses a number of reasons for his dissatisfaction with the prosecution case and an appeal court finds that one of those matters relied upon is inapt or illogical. Such a finding may not establish that the Judge would have convicted absent reliance upon that particular matter. Thus in R v Wilkes, Dixon J observed:[87]
We should, however, be careful always in exercising the power which we have, remembering that it is not in accordance with the general principles of English law to allow appeals from acquittals, and that it is an exceptional discretionary power vested in this Court. …
We are dealing only with an application to our discretion. To my mind it would be wrong to grant special leave with a view to enabling the Crown to have that particular point of law decided. For it is a point of law which, as it appears to me, is not necessarily implicit in the case itself. It arises only upon an observation made by the learned Judges in giving a number of reasons for exercising their discretion to refuse a new trial on the third count quashing the conviction and independently of that particular reason I should myself have exercised the discretion in the same manner. For these reasons I think that it is not a proper case in which to grant special leave to appeal.
[86] (1915) 20 CLR 315, 373.
[87] (1948) 77 CLR 511, 516.
Thus, a Court considering a prosecution appeal may not infrequently conclude that while there was technically a case to answer (the Judge having erred in finding no case), it remains the position that, had the case proceeded, the Judge would very likely have acquitted on the basis that the charge had not been proven beyond reasonable doubt. In such cases, permission to appeal may well be refused, or the residual discretion exercised, so as not to disturb the verdict of acquittal.
However, in the present case, while the Judge did indicate that there were some matters for serious consideration concerning the reliability of the evidence of the complainant, I do not consider that it is clearly established that the present case falls into that class of cases discussed in Brougham above, namely where “the prosecution case may well still be quite weak and such that an acquittal may be called for in any event”.
I would be prepared to grant permission to appeal (and to allow the appeal and set aside the acquittal), but only on the basis that there is power available to remit the case to the trial Judge to further hear and determine according to law rather than to order that there be a trial de novo before a different Judge. I consider that there is such power and that the present is an appropriate case in which to make such an order. My reasons for each of those conclusions follow.
This Court has power to remit the case to the Judge for further consideration
It is clearly necessary to read a provision which enacts a prosecution right of appeal against an acquittal in the light of the principles of double jeopardy, and the principle of legality, as discussed in Brougham and generally above.
The present situation is somewhat unusual in that what limits the ambit of a prosecution appeal under this Act consistently with those principles is not the language employed in conferring the power to appeal in s 352(1)(ab), but rather the language employed in s 353(2a) and s 353(3)(b) in limiting the nature of the orders that may be made following the hearing of a prosecution appeal.
It is plain that the new section 352(1)(ab), together with the new section s 353(2a)(b), explicitly pairs the power to “quash the acquittal” with a particular required consequential order, namely to “order a new trial” as distinct from conferring a power to “quash the acquittal and record a conviction”.[88]The Act positively prohibits the setting aside of an acquittal and replacing it with a conviction, either directly [see s 353(2a)(b)] or indirectly [see s 353(3)(b)]; the power conferred in s 352(1)(ab) is thereby limited to a mild form of prosecution appeal which can only lead to remittal to the lower Court for further consideration, and with the chance for the defendant to be acquitted a second time.
[88] It has previously been held that there is no power for the Court of Criminal Appeal to actually find the respondent guilty of the charge: R v Willingham (2012) 112 SASR 278 at 284-285 (per Doyle CJ) and at 286-287 (per Gray J).
It is, of course, commonplace to find a power to “order a new trial” expressed as including variants such as a new trial limited to a delineated topic(s) or aspect(s) of the original trial. Here, that same functionality is addressed in the immediately following section 353(2a)(c) which refers to “any consequential or ancillary orders that may be necessary or desirable in the circumstances.”
Section 353(2a) refers to “any one or more of the following powers” and accordingly the power in s 353(2a) to “quash the acquittal and order a new trial” may be united with a further consequential or ancillary order, namely an order made under 353(2a)(c) which specifies the nature of the new trial that the Court considers it desirable to order in all of the circumstances. In the present case, that would be a hearing of the new portion of the trial that has not yet been heard (namely a consideration of final submissions on the whole of the evidence) due to the erroneous acceptance of the submission of no case to answer.
In my view, that construction is very much in accordance with the approach recently taken by this Court to a question concerning the construction of s 353(4) Criminal Law Consolidation Act 1935 in R v Kreutzer[89] where the Court rejected a contention that the literal meaning of that provision required a narrow view to be taken of the Court’s power to remit.[90]
[89] (2013) 118 SASR 211.
[90] (2013) 118 SASR 211, 226-7 per Gray and Blue JJ. See also Kourakis CJ at pp 213-217. I also note the observations made in the joint Judgment of the High Court in Betts v the Queen [2016] HCA 25 and the authorities there referred to at footnote 20.
Finally, it is to be noted that the second reading speeches (and debate), both in the House of Assembly and the Legislative Council, when considering the Bill introducing the present prosecution right to appeal in no way addressed this matter of the power to remit to the trial Judge. There is no reason to believe that the new legislation was intended to produce the stark contrast of either setting aside an acquittal and ordering a trial de novo, on the one hand or declining to set aside the acquittal (by, say, refusing permission to appeal) on the other hand. The middle course of remitting to the trial Judge to further hear and determine according to law is in no way inconsistent with the proceedings in Parliament and is consistent with the legislation itself.
It is appropriate to here exercise the power to remit
At the outset of submissions at the close of the prosecution case, senior counsel indicated to the trial Judge that the defendant would not be giving (or calling) evidence and that she was in the hands of the court as to precisely how to proceed in presenting both a no case to answer submission (the no case submission) concerning insufficient particularity (based on the decision in Johnson) and, should that be rejected, a submission that the case was not proven beyond reasonable doubt (the not proven submission). Senior counsel handed up a detailed written submission of nine pages (now before this Court) setting out in detail the factual submissions and material upon which the respondent intended to rely for the latter submission should the no case submission fail. Counsel then, in accordance with the wishes of the Court, commenced with the no case submission and, at its conclusion, stood ready to make the not proven submission. However, the Judge preferred to stop and reserve his decision on the no case submission at that stage; his Honour subsequently indicated that he found no case to answer, a finding which led him to enter a verdict of acquittal.
In all of the circumstances, there is no reason to criticise either counsel or the Judge for the procedure that was taken. The decision that there was no case to answer was incorrect, but the submission was not farfetched or unarguable.
Apart from the final proposed not proven submission, the case was complete and defence counsel had unequivocally declared that the evidence was closed before proceeding to submissions. As alluded to above, his Honour had given some indication that he was not dismissing the viability of a not proven submission and referred to some bases for reasonable doubt; it is quite possible that he may have accepted the not proven submission if it had been fully argued on both sides.

I therefore consider that, in all the circumstances, the acceptance by the Judge of the no case submission should not deprive the respondent of the judgment of the trial Judge on the case as a whole. I see no cogent objection to the case being remitted to Judge Tilmouth for further consideration on the basis of the substituted finding that there is a case to answer, and with a direction to further hear and determine the case according to law. That course has the distinct advantage that the Judge who has already heard and seen the prosecution witnesses (including the complainant) will be able to determine the matter (one way or the other) much more expeditiously than if a different Judge were to hear the whole trial de novo.
A final observation
As noted above at [133], in coming to the conclusion that permission to appeal should be granted, one of the important factors to which I have regard is the availability of this power to remit the matter to the trial Judge in circumstances where it may be unfair to deprive the respondent of the possibly favourable view of the Judge who heard and saw the prosecution witnesses. It may well be that, absent that availability, I would consider it appropriate to deliver judgment in the same terms as above for future guidance; but to abstain from granting permission to appeal, so as not to interfere with the acquittal itself. However, in all of the circumstances, it is not necessary to come to a final conclusion on that matter.
Proposed orders
I would propose the following orders:
1That permission to appeal be granted.
2That the appeal be allowed.
3That the finding that there was no case to answer and the judgment of acquittal each be set aside.
4That a finding that a case to answer has been established be substituted.
5That the case be remitted to District Court Judge Tilmouth to further hear and determine according to law.
NICHOLSON J: I agree with the Chief Justice’s proposed disposition of the application for permission to appeal for the reasons his Honour has given. I also agree with the reasons of Peek J in concluding that the Judge erred in finding that there was no case to answer and in entering a judgment of acquittal at the stage he did.
However, I agree with the Chief Justice for the reasons he has given that section 353(2a) and (3) does not empower this Court on appeal to remit the matter to the District Court with an order for the completed trial to be resumed before the same Judge. Unlike Peek J, the absence of such a power does not cause me to exercise any, available, residual discretion so as not to order a retrial de novo. Further, were the matter to be resumed before the Judge, I do not agree that defence counsel would necessarily be bound by the intimation that there would be no defence case. The time for a binding election in this respect would have arisen had the no case submission following the close of the prosecution case been determined against the defence. The defence in this case was not put to its election.
LOVELL J: I agree with the order proposed by the Chief Justice and with his reasons.