R v Little

In R v Little, the appellant was convicted of maintaining a sexual relationship with a child. The prosecution alleged that the appellant had engaged in ongoing acts of sexual exploitation against a boy, AW, over a period of approximately three years, commencing when AW was 13 years old and ending when he was 16. AW testified to eight specific acts of sexual exploitation, including touching his genitals, performing fellatio, and anal sexual intercourse, and also stated that the appellant regularly engaged in anal sexual intercourse with him. The defence challenged AW's credibility and reliability by highlighting inconsistencies in his evidence regarding the timing and details of certain incidents.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the trial judge had adequately directed the jury on the requirement of unanimity regarding the specific acts constituting the offence. Specifically, the court had to determine if the jury was properly instructed that they must agree unanimously, or by majority after four hours of deliberation, that a prescribed pair of the same two acts of sexual exploitation had been proved beyond reasonable doubt, given the multiple alleged acts.

The Full Court reasoned that the trial judge erred in law by failing to direct the jury that they must agree unanimously, or by majority after four hours, that a specific pair of the same two acts of sexual exploitation had been proved beyond reasonable doubt. The court clarified that the decision in R v M, BJ did not preclude this requirement and was correctly decided. The judge had directed the jury that the offence required more than one act of sexual exploitation over a period of not less than three days, and that they should consider whether any acts constituting indecent assault or unlawful sexual intercourse were proved, and then whether any two of those acts were committed over the requisite period. However, the court found that this direction did not sufficiently ensure that the jury would agree on the same two specific acts.

Consequently, the Full Court allowed the appeal, set aside the conviction, and remitted the matter for retrial.