R v Little - [2015] SASCFC 118

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LITTLE
[2015] SASCFC 118
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan, The Honourable Justice Kelly, The Honourable Justice Peek and The Honourable Justice Lovell)
20 August 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD
CRIMINAL LAW - PROCEDURE - SUMMING UP
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EFFECT OF MISDIRECTION OR NON-DIRECTION
The appellant was convicted by a jury of one count of persistent sexual exploitation of a child. In summing up the trial Judge did not direct the jury that it was required to find beyond reasonable doubt unanimously, or by majority after four hours, that the accused had committed at least one pair of the same two acts within a period of not less than three days.
The appellant appeals to this Court. The appellant suggested that the decision of this Court in R v M, BJ (2011) 110 SASR 1 may have been wrongly decided.
Held (the Court):
1.   The trial Judge erred in failing to give the jury a direction requiring the jurors to agree unanimously, or by majority after four hours, that a prescribed pair of the same two acts has been proved beyond reasonable doubt.
2.   The decision of R v M, BJ was decided correctly.
3.   Appeal allowed.
Criminal Law Consolidation Act 1935 (SA) s 50(1); Criminal Code Act 1899 (Qld) Sch 1; Criminal Code (Qld) s 229B(1), referred to.
R v M, BJ (2011) 110 SASR 1; KBT v The Queen (1997) 191 CLR 417, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Unanimity", "Extended unanimity direction", "Persistent sexual exploitation", "Multiple acts", "Same acts", "Unanimous verdict"

R v LITTLE
[2015] SASCFC 118
Court of Criminal Appeal: Kourakis CJ, Sulan, Kelly, Peek and Lovell JJ

THE COURT:      The appellant, Robert Little, was convicted on his trial by majority verdict of a jury of one count of persistent sexual exploitation. The count alleged that between that the first day of June 1999 and the thirtieth day of June 2002 at Murray Bridge or another place, over a period of not less than three days the appellant committed more than one act of sexual exploitation of the complainant AW who was under the age of 17 years. It is an element of the offence that the accused has committed two acts of sexual exploitation over a period of three or more days. We will refer to that element as the commission of the prescribed pair of acts. The acts alleged included:
a      Touching AW’s genitals;
b      Performing fellatio on AW;
c      Penile/anal intercourse with AW.
The appellant has appealed against his conviction on a number of grounds, but it is necessary to deal only with that ground which complains that there has been a miscarriage of justice by reason of the failure of the Judge to expressly direct the jury that there must be at least one prescribed pair of the same acts which they unanimously, or by majority, agree has been proved beyond reasonable doubt.
A Full Court of five was convened because it was thought that the correctness of this Court’s decision in R v M, BJ[1] may be questioned.
[1] (2011) 110 SASR 1.
We would hold that the Judge erred in law in failing 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. The decision of this Court in R v M, BJ[2] does not hold to the contrary and was correctly decided. Our reasons follow.
[2] (2011) 110 SASR 1.
The Evidence
It was the prosecution case at trial that the appellant committed ongoing acts of sexual exploitation against a boy, whom we will call AW, for a period of approximately three years from 1 June 1999 until 30 June 2002. AW testified that the offending commenced when he was approximately 13 years old and started work experience with the appellant, who was a friend of AW’s father. It ended when he was 16 years old.
The offending conduct allegedly comprised the appellant, on more than one occasion, touching AW’s penis and genitals, performing fellatio on AW, and inserting his penis into AW’s anus. AW’s evidence was at times vague or non-specific. That is not surprising given the passage of time since the offending, and AW’s evidence that the appellant supplied him with alcohol and marijuana. Nonetheless AW described eight specific acts of sexual exploitation. AW could not clearly recall additional specific occasions, but testified that the appellant would regularly have anal sexual intercourse with him.
At trial the appellant relied on a number of inconsistencies in AW’s evidence to challenge his credibility and reliability. Those inconsistencies included:
·AW’s claim in evidence-in-chief that one particular incident occurred when he was about 13 and a half years old, and later concession in cross-examination that he had told police that it had occurred at about the time of his fifteenth birthday;
·AW’s failure to tell the police about the first occasion when sexual intercourse took place with the appellant when he first spoke to them even though he was able to describe it in a subsequent statement to the police, and give detailed evidence about the event at trial;
·Precisely when AW woke on one occasion to find the appellant fellating him; and
·An inconsistency between AW’s statement to police that the appellant engaged in anal sexual intercourse with AW in the appellant’s caravan on one occasion and AW’s testimony that it occurred “at least 10 times ... every three weeks”.
The Summing Up
The Judge correctly directed the jury that it was an element, the Judge identified it as the third element, that the accused must commit more than one act of sexual exploitation of the alleged victim over a period of not less than three days. The Judge directed the jury, as was the case, that the real issue was whether or not the third element had been satisfied, there being no dispute that the appellant was an adult, and that the complainant AW was a child, at the relevant time.
The Judge directed the jury that an act of sexual exploitation is one which could be the subject of a charge of a sexual offence and that the offences particularised in the Information were offences of indecent assault and unlawful sexual intercourse. The Judge correctly identified the elements of those sexual offences. The Judge then gave the following directions to the jury on the third element.
The issue for you is as to whether or not you are satisfied beyond reasonable doubt that over a period of not less than three days the accused committed more than one act of sexual exploitation of [AW] when he was under the age of 17 years.
The range of dates in the particulars are not elements of this offence in the same way as the other elements. They are, however, important to the offence charged because an element of offence is that [AW] must have been under the age of 17 years when the accused committed more than one act of sexual exploitation on him over a period of not less than three days.
When you start your deliberations you might first consider whether or not you are satisfied that any of the acts which could constitute an indecent assault by the accused of [AW] has or have been proved to your satisfaction. You might then move to consider whether or not you are satisfied that any of the acts which constitute unlawful sexual intercourse has or have been proved.
If you find that any two of all these acts are proved, you should then consider whether you are satisfied that any of those two acts were committed by the accused over a period of not less than three days.
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.
A unanimity direction should be given
In KBT v The Queen[3] the High Court considered the elements of maintaining a sexual relationship contrary to s 229B(1) of the Criminal Code (Qld). Section 229B(1) of the Criminal Code (Qld) and s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) raises the same issue as to their constituent elements and the extent of the requirement of unanimity. There is no relevant distinction between them for that purpose. The question is whether the essential element of these statutory offences is the commission of the same set of two acts (in the case of s 50(1) of the CLCA) or the same set of three acts (in the case of s 229B(1) of the Criminal Code (Qld) or whether the element is any two or three acts which individual jurors might find proved.
[3] (1997) 191 CLR 417.
In KBT v The Queen the prosecution had contended before the Queensland Court of Appeal that it was not necessary to direct the jury that they had to be agreed on the same three acts. We will refer to a direction of that kind as an extended unanimity direction. The Court of Appeal held against that submission but applied the proviso. In the High Court the prosecution did not challenge the Court of Appeal’s construction of the section and conceded that the direction should have been given. Nonetheless as appears from the passages below, the High Court examined the question for itself and affirmed the decision of the Queensland Court of Appeal that it was an element of the offence that the jury are agreed on the commission of the same three offences. However, the High Court reversed the Queensland Court of Appeal on the question of the proviso. The plurality (Brennan CJ, Toohey, Gaudron and Gummow JJ) said:[4]
The trial judge, Judge Dodds, instructed the jury that, to convict the appellant of maintaining a sexual relationship contrary to s 229B(1) of the Code, they “must be satisfied beyond a reasonable doubt that on at least three occasions within the time frame charged, the [appellant had], for instance, unlawfully and indecently dealt with the child”. He did not, however, instruct them that they had to be satisfied of the same three offences on the same three occasions. The Court of Appeal held that there should have been a direction to that effect but dismissed the appeal as it related to the offence under s 229B(1) because, in its view, there was no substantial miscarriage of justice.
The respondent now concedes that the trial judge should have directed the jury that they were required to be satisfied as to the commission of the same three acts constituting offences of a sexual nature before they could convict the appellant of the offence charged under s 229B(1) of the Code. It is necessary to examine that concession because, unless correct, the appeal to this Court could not succeed.
The offence created by s 229B(1) is described in that sub-section in terms of a course of conduct and, to that extent, may be compared with offences like trafficking in drugs or keeping a disorderly house. In the case of each of those latter offences, the actus reus is the course of conduct which the offence describes. However, an examination of sub-s (1A) makes it plain that that is not the case with the offence created by s 229B(1). Rather, 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.
[4] KBT v The Queen (1997) 191 CLR 417 at 422.
The plurality then set out the approach of the Court of Appeal to the question of the application of the proviso and continued:[5]
The question whether, in this case, the appellant was deprived of a chance of acquittal that was fairly open is not answered by describing the trial as an “all-or-nothing” contest. To the extent that it was a contest of that kind, that was in large part the result of the evidence which, as already indicated, dealt with general patterns of sexual misconduct rather than specific sexual acts. But more importantly, the trial cannot properly be described as an “all-or-nothing” contest in which there was “no rational basis upon which different members of the jury might have doubted some, different, portions of [M's] account.”
As the trial judge correctly instructed the jury in his summing up, it was open to the jury to accept some parts of M's evidence and to reject others. And given the nature of the offence, which is established by proof of acts of a sexual nature on three occasions, there is no basis on which it can be concluded that the jury did accept all her evidence. Moreover, the evidence in the defence case differed according to the different categories of incident to which M deposed. So far as concerned the incidents which, according to M, occurred on the motorcycle and during fruit picking, the defence evidence consisted, in the main, of the appellant's denial that they occurred. However, in the case of incidents which, according to M, occurred of a morning in her bedroom, after morning tea, during afternoon rests and while watching television, the appellant's wife gave evidence which was to the effect that it was improbable, if not impossible, that those events occurred.
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.
Instead of applying s 668E(1A) of the Code, the Court of Appeal should have allowed the appeal to that Court, so far as it concerned the appellant's conviction for the offence created by s 229B(1), and should have quashed his conviction for that offence and ordered a new trial.
Footnotes omitted
[5] KBT v The Queen (1997) 191 CLR 417 at 424-425.
Kirby J also held that it was necessary for the jury to be unanimously agreed that the same three occasions had been proved beyond reasonable doubt and that, that being an ingredient of the offence, it was an error not to so direct the jury:[6]
The principles of law which govern the outcome of this appeal are clear enough. They relate both to the operation of s 229B and to the application of s 668E(1A) of the Code.
It is unnecessary to elaborate the principles at great length. So far as s 229B is concerned, before this Court the Crown did not dispute the correctness of the Court of Appeal's holding that it was necessary, in order to constitute the offence, for the jury to be agreed that the prosecution had established offences of a sexual nature on three or more occasions.
[6] KBT v The Queen (1997) 191 CLR 417 at 431.
The decision of the High Court in KBT v The Queen was followed by this Court in R v M, B.J.[7] Vanstone J, with whom Sulan and White JJ agreed, explained:[8]
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).
[7] (2011) 110 SASR 1.
[8] R v M, BJ (2011) 110 SASR 1 at 28-29, [70].
In R v M, BJ the trial Judge did not expressly direct the jury that they had to unanimously, or by statutory majority, agree on the same two acts. The Judge did direct the jury that they had to be satisfied beyond reasonable doubt about more than “one of them, that is at least two, before you could proceed to convict a person for that offence”.
Vanstone J made the following observation about those directions:[9]
It may be noted that at no point did the directions to the jury contemplate that different members of the jury might reach different conclusions about the various acts set out in the particulars of count 1 and yet rely on such acts in proof of the charge. Although the judge instructed the jury that it need not be satisfied of the whole of the conduct alleged, there was no express or implied invitation to approach proof other than as a group.
I consider that, so far as the directions went, they were entirely correct. The appellant's argument is that, because the judge did not go on to instruct the jury that the jury, as a group, had to agree on two or more particularised acts before convicting the appellant, the conviction is uncertain or unsafe.
[9] R v M, BJ (2011) 110 SASR 1 at 31, [77]-[78].
It appears from the last sentence of para [78] that the grounds of appeal advanced in R v M, BJ were that the verdicts were bad in law by reason of uncertainty or that there had been a miscarriage of justice by reason of the failure to direct the jury resulting in an unsafe verdict. Vanstone J found no error in the directions given but refrained from expressing a conclusion on whether the failure to go further and direct the jury on the requirement for extended unanimity rendered the verdict unsafe or bad for uncertainty. Instead, Vanstone J went on to consider whether the failure of the Judge to give an extended unanimity direction was productive of a miscarriage of justice:[10]
It is relevant to consider the possibility that the jury, though being satisfied of at least two acts of sexual exploitation, might not have been satisfied as to other particularised acts. As seen, some 14 acts or types of acts were particularised in the information. In a great many instances the allegations were specific enough to allow those incidents to have been charged as individual counts. The appellant's defence consisted of a blanket denial that any indecent act had occurred between himself and his daughter. He did not suggest that any particular touching might have been misinterpreted; just that no touchings occurred. Mrs Shaw suggested that there was room for the jury to discriminate as between the different particularised acts inasmuch as, for example, medical evidence called by the prosecution failed to support A's evidence that the appellant had had vaginal sexual intercourse with her. There could also have been some room for discrimination on the basis that some incidents were described in more detail than others.
For three reasons I consider that the possibility that different jurors based their finding of guilt of count 1 on different acts can be entirely discounted. First, the various verdicts of the jury indicate that they entirely rejected the appellant's evidence. Secondly, my reading of the evidence of A is that she was an extremely impressive witness. The cross-examination of her was, with all respect to counsel, ineffective, because of her strength as a witness. As mentioned, the particulars of count 1 alleged some 14 different types of sexual activity. It is inconceivable to me that the jury would not, as a group, have concluded that the great majority of those were proved. Indeed, in my mind it is likely that the jury was wholly satisfied of the complainant's evidence. The third reason is that, having regard to the way the judge directed on count 1, as set out in these reasons, there was no invitation to the jury at any point to approach the matter as individuals, as opposed to acting as a corpus. In instructing the jury that it must be satisfied of at least two acts, the clear implication was that the jury must bring its collective mind to bear on those two or more acts. The situation may be compared with one in which a person is charged with one count of theft of numerous items. It is a sufficient basis for a finding of guilt that a jury is satisfied of only one item being stolen. However, in the usual case, there would be no necessity for the judge to direct the jury that, if it finds reason to discriminate in relation to the allegedly stolen items, it must, nonetheless, find as a group that a particular nominated item was stolen. It is unnecessary as a rule, because it is self-evident.
[10] R v M, BJ (2011) 110 SASR 1 at 31-32, [79]-[80].

It is clear from the reasons of Vanstone J that this Court in R v M, BJ proceeded on the basis that it was an error not to give an extended unanimity direction when directing the jury on the elements of the offence of persistent sexual exploitation. The Court held, with respect correctly, that the failure to give that direction had not occasioned a miscarriage of justice in the circumstances of that case.
Application to this Appeal
The failure to give an extended unanimity direction is an error of law. The conviction must be set aside and a new trial ordered unless the proviso can be applied.
AW’s testimony described eight particular acts of sexual exploitation and was evidence of very many more unspecified acts. The prosecution did not put its case on the basis that the jury could, and should, accept that every one of the sexual offences of which AW gave evidence was proved beyond reasonable doubt. Some jurors may have accepted that all of the acts were proved. However, some jurors may not have been satisfied beyond reasonable doubt of the acts which were not supported by evidence of the surrounding circumstances. Amongst those jurors, some may not have been satisfied beyond reasonable doubt about the offence which was said to be the first occasion of sexual intercourse, some may have had doubts about the occasion on which the appellant changed his testimony about his age and, others may not have been satisfied that any offending occurred in the caravan.
Counsel for the Director submitted that AW’s account was supported in certain general aspects by independent evidence. So much may be accepted. However, the prosecution case as to the commission of individual acts of sexual exploitation, depended entirely on the testimony of AW. In that respect, it is of some significance that two jurors were not satisfied that the charge was proved at all.
We are not satisfied on the evidence in this case 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.
Conclusion
We would allow the appeal, set aside the conviction and remit the matter for retrial.