R v QX
[2021] ACTSC 187
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v QX |
| Citation: | [2021] ACTSC 187 |
| Hearing Date: | 19 August 2020 |
| Decision Date: | 19 August 2020 |
| Reasons Date: | 16 August 2021 |
| Before: | Loukas-Karlsson J |
| Decision: | The application in proceedings dated 28 May 2020 seeking a stay of the indictment dated 27 April 2020 is dismissed. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application for stay of indictment – child sexual offences – maintaining a sexual relationship with a young person – discrete offences of sexual intercourse with young person |
| which form part of the basis for maintaining offence – whether indictment presents fundamental unfairness – whether indictment may result in double jeopardy – whether indictment | |
| offends s 24 of the Human Rights Act 2004 (ACT) | |
| Legislation Cited: | Crimes Act 1900 (ACT) ss 55, 56, 61, 66, 92EA (repealed) Criminal Code Act 1899 (Qld) s 229B Human Rights Act 2004 s 24 Legislation Act 2001 s 79 |
| Cases Cited: | CAZ v The Queen [2012] HCATrans 244 Jago v District Court (NSW) (1989) 168 CLR 23 KBT v The Queen (1997) 191 CLR 417 KN v The Queen [2019] ACTCA 37; 14 ACTLR 289 R v CAZ [2012] QCA 231; 1 Qd R 440 R v DU [2018] ACTSC 281; 14 ACTLR 1 R v Edwards [2009] HCA 20; 255 ALR 399 R v KN (No 2) [2019] ACTSC 5 R v M, DV [2019] SASCFC 59 Rogers v The Queen (1994) 181 CLR 251 S v The Queen (1989) 168 CLR 266 |
| Strickland (a pseudonym) v Commonwealth Director of Public | |
| Prosecutions [2018] HCA 53; 266 CLR 325 Walton v Gardiner (1993) 177 CLR 378 Williams v Spautz (1992) 174 CLR 509 | |
| Texts Cited: | Explanatory Statement, Crimes Legislation Amendment Bill 2017 (No 2) (ACT) Explanatory Statement, Royal Commission Criminal Justice Legislation Amendment Bill 2020 (ACT) |
| Royal Commission into Institutional Responses to Child Sexual | |
| Abuse (Criminal Justice Report, August 2017) | |
| Parties: | The Queen (Crown) |
| QX (Accused) | |
| Representation: | Counsel |
| S Jerome (Crown) | |
| J Pappas (Accused) | |
| Solicitors | |
| ACT Director of Public Prosecutions (Crown) Aulich Criminal Law (Accused) | |
| File Number: | SCC 58 of 2020 |
| LOUKAS-KARLSSON J: | |
| Introduction |
1. A stay application was heard on 19 August 2020. QX (the accused) was arraigned on an indictment dated 27 April 2020 (the indictment) and entered pleas of not guilty to each offence. On that date, I dismissed the application and indicated to the parties that the reasons would be published at a later date. Those reasons follow.
2. The indictment against the accused contained the following offences:
(a) One count of maintaining a sexual relationship with a young person, contrary to s 56(1) of the Crimes Act 1900 (ACT) (Crimes Act) (Count 1). The maximum penalty for this offence is 25 years’ imprisonment. This
offence is particularised as having occurred between 1 July 2018 and 19
July 2019;(b) 18 counts of sexual intercourse with a person between the age of 10 and 16 years, contrary to s 55(2) of the Crimes Act (Counts 3-12, 14-21). The maximum penalty for this offence is 14 years’ imprisonment. Counts 3 and
4 are particularised as having occurred on a date unknown between 1 July 2018 and 31 December 2018. Counts 5 through 8 are particularised as having occurred on a date unknown between 1 December 2018 and 31 December 2018. Counts 9 through 12 and 14 through 21 are particularised as having occurred on a date unknown between 1 January 2019 and 19 June 2019;
(c) One count of committing an act of indecency on a person between the ages of 10 and 16 years, contrary to s 61(2) of the Crimes Act (Count 2). The maximum penalty for this offence is 10 years’ imprisonment. This
offence is particularised as occurring on a date unknown between 1 July
2018 and 31 December 2018; and(d) One count of grooming a young person by engaging in conduct with another person who has a relationship with the young person with the intention of making it more likely that the young person would take part in an act of a sexual nature, contrary to s 66(1)(c) of the Crimes Act (Count 13). The maximum penalty for this offence is seven years’ imprisonment.
This offence is particularised as having occurred on dates unknown between 1 February 2019 and 1 April 2019.
3. The charge of maintaining a sexual relationship with a young person, as well as the charges of sexual intercourse with a person between the age of 10 and 16 years and the charge of committing an act of indecency on a person between the ages of 10 and 16 years all relate to the same complainant, BM (the complainant). The charge of grooming a young person through a third-party relationship has been particularised as
the accused communicating with the complainant’s mother, GM, to persuade her that
he was a good influence on the complainant and that time spent with him would help the complainant mature. This included the accused arranging with GM for the complainant to dropped off at his residence for a movie night.
4. The prosecution’s case is that the accused maintained a sexual relationship with the
complainant, who was 14 at the time, for an eleven month period whilst she lived with his family and up until the AFP were alerted and commenced an investigation on 19 June 2019.
5. On 28 May 2020, the accused filed an application in proceeding seeking:
(a)
That the prosecution of the accused pursuant to the indictment dated 27 April 2020 be stayed; and
(b)
That the prosecution of the accused under any fresh indictment that may be filed be stayed until the ACT Director of Public Prosecutions pays to the accused any legal professional costs and disbursements incurred by him in relation to the stay application.
Legal Principles Concerning Stay
6. A superior Court’s inherent jurisdiction includes control over its own processes to
prevent an abuse of process: Walton v Gardiner (1993) 177 CLR 378 at 395. A Court should ensure it does not become an instrument of injustice by bringing the administration of justice into disrepute: Rogers v The Queen (1994) 181 CLR 251 at 256 (Mason CJ).
7. In Williams v Spautz (1992) 174 CLR 509 at 520 (Williams v Spautz), the majority observed:
In this respect there are two fundamental policy considerations which must be taken
into account in dealing with abuse of process in the context of criminal proceedings….
The first is that the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizens alike. The second is that, unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence
by reason of concern that the court’s processes may lend themselves to oppression
and injustice.
8. In Jago v District Court (NSW) (1989) 168 CLR 23 (Jago v District Court (NSW)), Mason CJ noted at 33-34 that the Courts possess a power to stay criminal proceedings to prevent injustice to the accused.
9. For a stay to be granted, the Court must be satisfied there are no other available means such as directions to be given by the trial Judge of bringing about a fair trial: William v Spautz at 519. A stay should only be granted in an exceptional or extreme case, where possible the Court should exercise its jurisdiction to try persons charged with criminal offences: Walton v Gardiner; R v Edwards [2009] HCA 20; 255 ALR 399; Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53; 266 CLR 325 at [106], [189].
10. The High Court has noted that the categories of cases where stays may be granted are not closed: see Jago v District Court (NSW) at 57.
11. On the issue of “fairness” Deane J in Jago v District Court (NSW) at 57 stated:
The general notion of fairness which has inspired much of the traditional criminal law of this country defies analytical definition. Nor is it possible to catalogue in the abstract the occurrences outside or within the actual trial which will or may affect the overall trial to an extent that it can no longer properly be regarded as a fair one. Putting to one side cases of actual or ostensible bias, the identification of what does and what does not remove the quality of fairness from an overall trial must proceed on a case by case basis and involve an undesirably, but unavoidably, large content of essentially intuitive judgment.
The Stay Application
12. The accused sought a stay of the indictment on the following grounds:
(a) The indictment exposes the accused to the possibility of double jeopardy;
(b) The indictment offends s 24 of the Human Rights Act 2004 (ACT) (Human Rights Act); (c) The indictment represents an abuse of process in circumstances where the ACT Director of Public Prosecutions has charged, and has adequately particularised, individual sexual acts in the indictment upon which the prosecution also relies to satisfy the definition of “a sexual relationship” in
s 56(2) of the Crimes Act;
(d)
The indictment represents a fundamental unfairness having regard to the terms of the Royal Commission into Institutional Responses to Child Sexual Abuse (Criminal Justice Report, August 2017) (Royal Commission Report) and the Model Provision contained within the Royal Commission report for the offence of maintaining an unlawful sexual relationship with a child; the terms of s 56 of the Crimes Act, the Explanatory Statement to the Crimes Legislation Amendment Bill 2017 (No 2) (ACT), and the Court of Appeal decision in KN v The Queen [2019] ACTCA 37; 14 ACTLR 289 (KN v The Queen).
(e)
Prosecution of the accused pursuant to the indictment would result in a fundamental unfairness to the accused as:
a.
A guilty verdict in relation to any of the individual counts of sexual activity on the indictment would require a unanimous guilty verdict, whereas jurors may reason to a conclusion of guilt in relation to the maintaining a sexual relationship offence via disparate routs and without doing so unanimously;
b.
The sheer number of individual allegations, when seen against the small number of sexual acts required to be proven to establish the maintaining a sexual relationship offence has a tendency to invite speculation and compromise even if the jury is uncertain in relation to proof of the individual counts.
13. The application was supported by a schedule of correspondence that enclosed a
letter dated 15 May 2020 from the accused’s solicitor addressed to the prosecutor
with carriage of this matter and a reply email from the prosecutor sent on 17 June
2020.14. The 15 May 2020 letter conveyed the concerns of the accused’s solicitor that the
indictment offended the principles set out in R v DU [2018] ACTSC 281; 14 ACTLR 1 (R v DU) and stated that the concerns of unfairness were particularly pertinent in circumstances where the indictment and case statement did not differentiate between the sexual acts supporting the individual discrete charges and those said to support
the maintaining a sexual relationship offence. The accused’s solicitor stated in the
letter that an omnibus allegation of maintaining a sexual relationship should not be used in circumstances where the prosecution is able to adequately particularise individual offences, by reference to R v DU at [70]. The letter noted that the manner in which an indictment is framed is a matter for the Director but stated that the Court has ultimate control over the presentation of an indictment where an indictment may result
in unfairness or injustice to the accused. The accused’s solicitor ultimately invited the
Director to file a fresh indictment without the maintaining a sexual relationship
offence. The accused’s solicitor noted that if a fresh indictment was not filed, an
application would be filed on behalf of the accused seeking a stay of the indictment. The 17 June 2020 email in response sent by the prosecutor confirmed that the indictment would not be amended and that an application should be made if the accused wished to challenge the indictment.
15. The application was also supported by the Persistent Sexual Abuse of Children Model Provisions that were Appendix H of the Royal Commission Report, the Explanatory Statement to the Crimes Legislation Amendment Bill 2017 (No 2) (ACT) and the Court of Appeal decision of KN v The Queen.
Prosecution Submissions
16. In response to the accused’s stay application, the prosecution sought the following:
(a) That the Court order that the indictment is correct at law; (b) That the stay application be refused; (c) In the event that the stay application was granted, that the Court refuse the application to order the ACT Director of Public Prosecutions to pay the accused’s legal professional costs and disbursements incurred in relation
to this application.
17. The prosecution noted that the accused bore the onus of demonstrating that there was such unfairness as to warrant a stay being ordered by the Court. It was noted that the accused advanced two bases as warranting a stay: the first being the issue of
‘unanimity’ and the second being the ‘sheer number of charges’.
Legislation
18. It was noted that the maintaining a sexual relationship offence has been amended by the ACT Legislative Assembly in an attempt to align s 56 of the Crimes Act more closely to the Model Provision recommended by the Royal Commission.
19. The accused had been charged with the offence pursuant to s 56 of the Crimes Act as it currently stood:
56 Maintaining sexual relationship with young person or person under special care
(1) A person who is an adult and who maintains a sexual relationship with a young person or
a person under the special care of the adult is guilty of an offence.Maximum penalty: imprisonment for 25 years. (2)
For subsection (1), an adult maintains a sexual relationship with a young person or a person under the special care of the adult if on 2 or more occasions and over any period the adult engages in a sexual act with that person.
(3) For subsection (2)—
(a) the period, or any part of the period, may be before the amendment day; and (b) 1 or more of the sexual acts may have occurred before the amendment day; and (c) a sexual offence that could be charged and proved under section 66B (Course of
conduct charge—child sexual offences) can be 1 of the sexual acts.
(4) For a person to be convicted of an offence against subsection (1), the trier of fact must be
satisfied beyond reasonable doubt that a sexual relationship existed.(5) However, in a proceeding for an offence against subsection (1), there is no requirement for—
(a)
the prosecution to allege the particulars of a sexual act that would be necessary if the act were charged as a separate offence; or
(b)
the trier of fact to be satisfied of the particulars of a sexual act that it would need to be satisfied of if the act were charged as a separate offence if the trier of fact is
satisfied the nature and character of a person’s conduct was consistent with a
sexual act; or
(c) if the trier of fact is a jury—members of the jury to agree on which sexual acts constitute the sexual relationship.
(6) In a proceeding for an offence against subsection (1), the prosecution is required to allege
the particulars of the period of the sexual relationship.(7)
For an offence against this section that occurred wholly or in part before the amendment day, when imposing a sentence a court must consider the maximum penalty before the
amendment day for—
(a) an offence against this section; and (b) an offence constituted by a sexual act alleged to constitute the sexual relationship. (8) A person may be charged on a single indictment with, and convicted of and punished for, both—
(a) an offence against subsection (1); and (b)
1 or more sexual offences committed by the person against the same young person or person under the special care of the person during the alleged period of the sexual relationship.
(9) Except as provided by subsection (8), a person cannot be convicted of an offence—
(a)
against subsection (1) if the person has already been convicted or acquitted of an offence constituted by 1 or more of the sexual acts alleged to constitute the sexual relationship; or
(b)
constituted by a sexual act in relation to a young person or person under the special care of the person if the sexual act is alleged to have occurred during the period for which the person has already been convicted or acquitted of an offence against subsection (1) in relation to the young person or person under their special care.
(10) For subsection (9), a person is taken not to have been convicted of an offence if the
conviction is quashed or set aside.(11) The Criminal Code, chapter 2 (other than the applied provisions) does not apply to an
offence against this section.(12)
For this section and to remove any doubt, any sexual act alleged to constitute a sexual relationship must constitute, or have constituted (if particulars of the time and place at which the act took place were sufficiently particularised), an offence at the time the act occurred.
(13) In this section: amendment day means the day the Crimes Legislation Amendment Act 2018, section 4
commenced.employer, of a person, includes someone authorised to—
(a) decide or vary the terms of the person’s employment; or (b) end the person’s employment. foster carer—see the Children and Young People Act 2008, section 518 (2). health service—see the Human Rights Commission Act 2005, section 7. health service provider—see section 55A (5). sexual act—
(a) means— (i) an act that constitutes an offence against this part; or
(ii) an act that constituted an offence against a sexual offence provision of this Act previously in force (a historical offence); or
(iii) an attempt to commit an act that constitutes or constituted an offence against this part or a historical offence; or
(iv) an act that, if particulars of the time when or place where the act took place were sufficiently particularised, would constitute or have constituted an offence against this part or a historical offence; but
(b) does not include an act referred to in— (i) section 55 (2) (Sexual intercourse with young person) if the person who committed the act establishes the matters referred to in section 55 (3) that would be a defence if the person had been charged with an offence against section 55 (2); or
(ii) section 61 (2) (Act of indecency with young people) if the person who committed the act establishes the matters referred to in section 61 (3) that would be a defence if the person had been charged with an offence against section 61 (2).
special care—a person is under the special care of an adult if—
(a) the person is not yet an adult; and (b) the adult—
(i) is a parent, grandparent, step-parent, foster carer or legal guardian of the person; or
(ii) is the domestic partner of a parent, grandparent, step-parent, guardian or foster carer of the person; or
(iii) is a teacher at a school, or an adult with responsibility for students at a school, and the person is a student at the school; or
(iv) has an established personal relationship with the person in relation to the provision of religious, sporting, musical or other instruction to the person; or
(v) is the person’s employer; or
(vi) provides professional counselling to the person; or
(vii) is a health service provider and the person is the adult’s patient; or
(viii) is a custodial officer and the person is a young detainee in the officer’s care,
custody or control; or
(ix) if the person has impaired decision-making ability—is a carer for the younger
person.
young detainee—see the Children and Young People Act 2008, section 95.
young person means a person who is under the age of 16 years.
20. The Explanatory Statement to the Crimes Legislation Amendment Bill 2017 (No 2) (ACT) stated that the Bill would:
…amend section 56 of the Crimes Act (maintain sexual relationship with a young
person) so that the unlawful sexual relationship, rather than individual sexual acts, constitutes the actus reus for the offence. This will enable repeated but largely indistinguishable occasions of child sexual abuse to be charged effectively.
21. In KN v The Queen the Court of Appeal held that although there was reference to the sexual relationship existing in subsection (4), the sexual relationship was not an element of the offence.
22. The ACT Legislative Assembly had noted the comments of the Court of Appeal and had reformulated s 56 of the Crimes Act so that it was to be amended by the Royal Commission Criminal Justice Legislation Amendment Bill 2020 and is set out in Annexure A.
23. It was noted that the new version of s 56 of the Crimes Act had been passed into law at the time of the hearing, but had not yet commenced as there had not been a notification by the Attorney-General nor the effluxion of time as stipulated by s 79 of the Legislation Act 2001 (ACT). Counsel for the accused also referred to subsection (10) of the new proposed s 56 of the Crimes Act that requires the consent of the Director for a charge to be laid pursuant to this section and submitted that hopefully the prosecution could see the inherent unfairness of relying on this offence in conjunction with individual counts in the future.
24. Counsel for the accused submitted that there was a complete overlap between the period of the alleged maintaining of a sexual relationship and the discrete counts. It was conceded that the indictment was correct at law and that the accused was not seeking a stay on such a basis. Counsel submitted that the accused sought to invoke the inherent jurisdiction of the Court to control and supervise proceedings so as to avoid a fundamental unfairness. It was submitted that the unfairness firstly arose in the large number of discrete individual counts which the prosecution was able to articulate and particularise.
25. Counsel further referred to the new maintaining a sexual relationship offence pursuant to the amendments of s 56 of the Crimes Act. In reference to the Explanatory Statement to the Royal Commission Criminal Justice Legislation Amendment Bill 2020 (ACT), counsel noted that it contained the following:
This clause substitutes the section 56 offence of maintaining a sexual relationship with a young person with a revised provision to more closely align with the Model Provision recommended by the Royal Commission (recommendations 21 and 22 of the Criminal Justice Report).
26. It was noted that the Explanatory Statement expressly referenced the Court of
Appeal’s decision in KN v The Queen and noted that the previous version of s 56 of
the Crimes Act did not implement the Royal Commission recommendations as intended, including that the sexual relationship was not the actus reus of the offence. It was suggested by counsel that the new version of s 56 of the Crimes Act would still lead to the same inherent issue that caused counsel for the accused to bring the stay application. That is, the tendency for jurors to reason from a significant number of individual offences in relation to a maintaining offence, even where the number of jurors in favour of finding a single discrete sexual offence might be very low.
27. Counsel submitted that the new version of s 56 of the Crimes Act still had not properly
replicated what was in the Royal Commission’s Model Provision, so to guard against
the double jeopardy which had been identified in KN v The Queen.
28. It was submitted that the Court was entitled to look at subsections (8) and (9) of the current iteration of s 56 of the Crimes Act in consideration of whether in the present case there was an unfairness or an abuse involved in an indictment containing both a maintaining a sexual relationship offence, as well as discrete offences. Counsel submitted that the maintaining a sexual relationship offence was always intended to only be used to accommodate cases where a complainant of sexual abuse, often a child, was unable to provide sufficient detail to particularise individual counts. Counsel conceded that the present matter involved the complainant being able to offer particulars for some offences but not others.
29. Counsel agreed that the Court was prevented from not applying KN v The Queen. Instead, counsel submitted that the Court was still able to invoke its inherent jurisdiction to guard against unfairness, having regard to the circumstances of the present matter. It was submitted that this was not a matter where the prosecution was unable to proffer individual charges, the indictment showed that the prosecution was clearly able to particularise discrete offences. Counsel asserted that the indictment presented a fundamental unfairness by relying on a maintaining a sexual relationship offence where the ACT Legislative Assembly had introduced that offence to be used in circumstances where a complainant could not offer particulars.
Consideration
30. In R v DU Burns J observed the following at [70]-[71]:
The history of sexual relationship offences in the ACT has not been driven by the perceived need to create an aggravated form of sexual offence, but by the need to ensure that prosecutions did not fail because of the inability of vulnerable people to provide the type of information about the date, time and place of sexual offending required by the common law. The operation of sexual relationship offences was intended to fill a gap in the prosecution of sexual offences, not to replace existing specific offences or to erase generally the principles governing the prosecution of specific offences. In addition, the Explanatory Statement regarding s 56, as well as the Report of the Royal Commission, demonstrate the concern to protect accused persons from double jeopardy with regard to the operation of the model offence and s 56, which is consistent with the traditional approach of the common law. In my opinion, the Crown is not entitled to seek convictions upon both the s 56(1) charge and the other specific charges under s 55A based on the same alleged sexual acts by the applicant; it must choose to proceed either on the charge under s 56(1) or on the specific charges or it may choose to charge the specific offences in the alternative to the s 56(1) offence. Although that is a choice to be made by the DPP, the
purpose for which the offence under s 56(1) was created speaks strongly of the appropriateness of proceeding with specific charges where that is possible, and where such charges will adequately reveal the criminality involved.
It is important this this Court acknowledges and respects the discretion vested in the DPP to determine upon which charge or charges it will bring the applicant to trial. As such, it is inappropriate that I make any order staying any of the charges at this time. I will refrain from making formal orders to allow the DPP to elect how it will proceed in the light of these reasons. The matter may be relisted for formal orders to be made on short notice should that prove necessary.
(emphasis added)
31. In KN v The Queen, the Court of Appeal set out the legislative and case history of s 56 of the Crimes Act, including discussing S v The Queen (1989) 168 CLR 266, KBT v The Queen (1997) 191 CLR 417, the Royal Commission into Institutional
Responses to Child Sexual Abuse, the ACT’s response to the Royal Commission’s
Recommendations, the Model Provision in comparison to s 56 and the repealed s
92EA, and R v M, DV [2019] SASCFC 59 at [25]-[62].32. The Court of the Appeal concluded the following at [63]-[72]:
Somewhat reluctantly, we are driven to the conclusion that, as s 56(2) of the Crimes Act plainly states, an offence of maintaining a sexual relationship with a young person
is committed “if, on two or more occasions and over any period the adult engages in a sexual act” with the young person. The text provides no scope to impose an
additional element of the offence. The legislature has decided to retain the approach of s 92EA(3), whereby s 56(2) defines the offence, rather than confining itself to the
“sexual relationship” aspect of the offence.
The legislature has deliberately chosen to enact s 56(2), although that provision differs substantially from the Model Provision. The Model Provision itself differs significantly from the Queensland Code that was approved in the Royal Commission Report. Arguably, the decision in DV shows that the Model Provision does not achieve its stated purpose; but we are not called upon to decide that question.
We concur with the view expressed by Burns J in R v DU [2018] ACTSC 281 (DU) at [29], where his Honour doubted that s 56 created an offence of which the actus reus was the maintenance of a sexual relationship (although, in the proceedings before him, it was unnecessary to determine that question).
The words of s 56(2) are clear. The focus on “sexual acts” rather than on the
existence of a sexual relationship in the ordinary sense is emphasised by the inclusion
of the words “over any period”, which would be quite unnecessary if there was an additional element of “sexual relationship” in the ordinary sense. The reference in s
56(5)(c) to the fact that jurors need not agree “on which sexual acts constitute the
sexual relationship” also supports this construction (emphasis added).Any doubt about the meaning of the provision arises only from contextual considerations, and because extraneous material suggests that the provision does not reflect the legislative purpose.
In reaching this conclusion, the following considerations have given us pause.
First, the provision does away with the “cardinal principle” that there must be jury
unanimity about the conduct founding an offence. It does so in circumstances where
a convicted person is liable to a maximum penalty of 25 years’ imprisonment.
Second, both the Royal Commission Report and the Explanatory Statement associated with the introduction of s 56 emphasised that the purpose of the new provision was to make the unlawful sexual relationship the actus reus of the offence, rather than the underlying sexual acts (regardless of whether the individual sexual
acts are offences that can be particularised or “offences” that cannot be
particularised). Section 56 does not achieve that purpose.
Third, the construction that we have adopted means that s 56(4) has little, if any, work to do.
Fourth, as explained below, the construction exposes an accused person to “double
jeopardy” and may be contrary to s 24 of the Human Rights Act 2004 (ACT) (HRA)
because it enables an accused person to be convicted and punished twice for the
same conduct.
33. At [75] the Court of the Appeal further stated:
… we consider that ss 56(8) and (9) expressly permit an accused person to be
convicted of both a s 56 offence and specific sexual offences relied upon as “sexual
acts” under s 56(2), provided that all offences are charged in the same indictment.
34. The Court of Appeal further observed at [80]-[82]:
Of course, where a sexual relationship offence and the specific sexual offence/s are charged in the same indictment and an accused person is convicted of the relationship offence on the basis of the act/s the subject of the specific charge/s (assuming that it is possible to determine that that was or may have been the case), then the sentencing judge is likely to decide that the sentence for the relationship charge captures the whole of the criminality of the specific charges (or vice versa) and to impose entirely concurrent sentences.
That is what occurred in the present case. The decision in DU post-dated the
appellant’s trial but was available at the time of sentence and was drawn to the
attention of the primary judge. In KN, his Honour acknowledged the “danger of punishing the offender, in effect, twice for the same offence”: at [9]. At [32], his
Honour stated:
In addition, although the counts concerning LL involve a rolling up of offences, Count 2 must be seen as part of the same criminal conduct constituted by the other counts. This it [sic] is essentially the point raised in respect of s 56. It is important that I am careful to ensure that the offender is not punished twice for the same offence.
We consider that ss 56(8) and (9) unequivocally allow for concurrent charging and conviction, provided that the relationship charge and the specific sexual offence charges are prosecuted in the same indictment.
35. The Court of Appeal finally concluded at [85] that:
But for ss 56(8) and (9) of the Crimes Act, the principle of double jeopardy would have applied and would have precluded the appellant being convicted of both the relationship offence and the specific offences against s 55 of the Crimes Act, as the
latter offences were relied upon as the “sexual acts” founding the s 56(1) conviction.
However, the principle of double jeopardy has been displaced by ss 56(8) and
(9). Consequently, there has been no miscarriage of justice in this regard.
(emphasis added)
36. In my view, the issue agitated by the accused has been determined by the Court of Appeal in KN v The Queen at [75]. Subsections 56(8) and (9) of the Crimes Act expressly permit an accused person to be convicted both of an offence contrary to s
56 and specific sexual offences relied upon as “sexual acts” under s 56(2), provided
that all offences are charged in the same indictment. KN v The Queen settles the law concerning the application advanced on behalf of the accused. KN v The Queen established that the placing of a maintaining a sexual relationship offence and substantive sexual offences on the same indictment does not involve an impropriety.
37. I accept the prosecution submission that the prosecution has been clear in the case statement about what evidence was relied upon to establish the maintaining a sexual relationship offence, as opposed to the other counts on the indictment.
38. In my view, a stay is not warranted in this matter. The indictment as drafted does not raise any issue of unfairness sufficient to warrant a stay.
39. I note the implications for sentencing as referred to in KN v The Queen at [80] and R v KN (No 2) [2019] ACTSC 5 at [9].
40. I also note R v CAZ [2012] QCA 231; 1 Qd R 440 which dealt with a similar issue in relation to the Queensland equivalent of s 56 of the Crimes Act, s 229B of the Criminal Code Act 1899 (Qld). The High Court refused a special leave application in CAZ v The Queen [2012] HCATrans 244.
Addendum
41. After dismissing the application for a stay of the indictment on 19 August 2020, this matter continued before me in respect of further applications advanced on behalf of the accused. When the balance of the applications returned before me on 2 November 2020, the prosecution presented a fresh indictment dated 30 October 2020 that omitted the maintaining the sexual relationship offence. The prosecution will proceed on the basis of the remaining 18 counts of sexual intercourse with a young person between 10 and 16 years of age (Counts 2 through 11 and 13 through 20), the count of committing an act of indecency with a young person between 10 and 16 years of age (Count 1), and the count of grooming a young person by a third party relationship (Count 12).
Orders
42. On 19 August 2020, I made the following order:
(a) The application in proceedings dated 28 May 2020 seeking a stay of the indictment dated 27 April 2020 on SCC 58 of 2020 is dismissed.
43. I note that consequently the question of costs does not fall to be considered in light of my order dismissing the stay application.
I certify that the preceding forty-three [43] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson
Associate: Rhiannon McGlinn
Date: 16 August 2021
Annexure A: Crimes Act 1900 (ACT) s 56
56 Sexual relationship with child or young person under special care
(1) A person commits an offence if the person—
(a) is an adult; and (b)
engages in a relationship with a child, or a young person under the special care of the adult, that involves more than 1 sexual act.
Maximum penalty: imprisonment for 25 years. (2) For subsection (1) (b)—
(a)
a relationship includes repeated contact, interaction, engagement or association, of a sexual nature or otherwise; and
(b)
the relationship may have started, or started and ended, before the amendment day; and
(c)
1 or more of the sexual acts may have occurred before the amendment day; and
(d) a sexual offence that could be charged and proved under section 66B (Course of conduct charge—child sexual offences) can be 1 of the sexual
acts.
(3) For a person to be convicted of an offence against subsection (1), the trier of fact must unanimously be satisfied beyond reasonable doubt that the relationship existed. (4) However, in a proceeding for an offence against subsection (1), there is no requirement for—
(a) the prosecution to allege the particulars of a sexual act that would be necessary if the act were charged as a separate offence; or (b) the trier of fact to be satisfied of the particulars of a sexual act that it would need to be satisfied of if the act were charged as a separate offence; or (c) if the trier of fact is a jury—all the members of the jury to agree on the same sexual acts involved in the relationship.
(5) In a proceeding for an offence against subsection (1)—
(a)
the prosecution is required to allege the particulars of the period of the relationship; and
(b)
without limiting the Criminal Code, section 64 (2) (Extension of offences if required geographical nexus exists), a geographical nexus exists for this
offence if—
(i) any part of the relationship was engaged in inside the ACT; or
(ii) at least 1 of the sexual acts occurred inside the ACT.
(6)
For an offence against this section that occurred partly or wholly before 2 March 2018, the maximum penalty is the current maximum penalty, however, for a relationship engaged in over the period mentioned in table 56, column 2, the sentence imposed must not be more than the penalty mentioned in column 3 for that period.
Table 56
| column 1 | column 2 | column 3 |
| item | period of relationship | penalty |
| 1 | wholly before | the lesser of— |
24 December 1991 (a) the current maximum penalty; and (b) either— (i) if 2 or more sexual acts alleged to be involved in the relationship are found to
have occurred—the total of the maximum
penalties for each offence constituted by
the sexual acts; or(ii) in any other case—the highest maximum
penalty for the offences constituted by the
sexual acts alleged to be involved in the
relationship
| 2 | started before, on or after | the lesser of— |
24 December 1991 and (a) the current maximum penalty; and ended before (b) the 1991 maximum penalty 2 March 2018
| 3 | started on or after | the current maximum penalty |
| 24 December 1991 and ended on or after 2 March 2018 | ||
| 4 | started on or after 2 | the current maximum penalty |
| March 2018 |
Example—item 1, column 3, par (b) (i)
An offender is convicted of an offence against this section for a relationship that occurred wholly before 24 December 1991. The jury agrees that 3 acts of indecency occurred. The maximum penalty for committing an act of indecency at the time the acts occurred is 5 years imprisonment. A court may impose a sentence for an offence against this section of up to the total of the maximum penalty for the 3 acts of indecency, ie 15 years imprisonment.
Example—item 1, column 3, par (b) (ii)
An offender is convicted of an offence against this section for a relationship that occurred wholly before 24 December 1991. The sexual acts that were alleged to be involved in the relationship included conduct that, if sufficiently particularised, would have constituted an act of indecency in the third degree and 3 acts of indecency without consent. The jury agrees that 2 sexual acts occurred but were not unanimous about which ones. The maximum penalty for the sexual acts at the time the acts occurred are 10 years and 5 years imprisonment respectively. A court may impose a sentence for an offence against this section of up to the highest maximum penalty for the alleged sexual acts, ie 10 years imprisonment.
(7) A person—
(a) may be charged on a single indictment with, and convicted of and punished for, both—
(i) an offence against subsection (1); and (ii) 1 or more sexual offences committed by the person against the same child or young person under the special care of the person during the alleged period of the relationship; but (b) must not be required to serve the sentences for the offence against subsection (1) and the sexual offences consecutively.
(8) Except as provided by subsection (7), a person cannot be convicted of an
offence—
(a)
against subsection (1) if the person has already been convicted or acquitted of an offence constituted by 1 or more of the sexual acts alleged to be involved in the relationship; or
(b)
constituted by a sexual act against a child or young person under the special care of the person if the sexual act is alleged to have been committed during the period for which the person has already been convicted or acquitted of an offence against subsection (1) in relation to the child or young person.
(9) For subsection (8), a person is taken not to have been convicted of an offence if
the conviction is quashed or set aside.(10) A proceeding for a charge for an offence under this section must not be started
without the consent of the director of public prosecutions.(11) The Criminal Code, chapter 2 (other than the applied provisions) does not apply
to an offence against this section.(12) In this section: 1991 maximum penalty means the maximum penalty for this offence applying on
24 December 1991.
Note This section was previously s 92EA which was inserted into this Act by the Crimes (Amendment) Act (No 3) 1991 (A1991-90). See that Act for the maximum penalty for this offence applying on 24 December 1991. amendment day means the day the Royal Commission Criminal Justice
Legislation Amendment Act 2020, section 3 commenced.child means a person who is under the age of 16 years. current maximum penalty means the maximum penalty mentioned in
subsection (1).sexual act— (a) means— (i) an act that constitutes an offence against this part; or
(ii) an act that constituted an offence against a sexual offence provision of this Act previously in force (a historical offence); or
(iii) an attempt to commit an act that constitutes or constituted an offence against this part or a historical offence; or
(iv) an act that, if particulars of the time when or place where the act took place were sufficiently particularised, would constitute or have constituted an offence against this part or a historical offence at the time the act occurred; but
(b) does not include an act referred to in—
(i)
section 55 (2) (Sexual intercourse with young person) if the person who committed the act establishes the matters referred to in section 55 (3) that would be a defence if the person had been charged with an offence against section 55 (2); or
(ii)
section 61 (2) (Act of indecency with young people) if the person who committed the act establishes the matters referred to in section 61 (3) that would be a defence if the person had been charged with an offence against section 61 (2).
special care—see section 55A (2).
young person means a person who is at least 16 years old, but not yet an adult.
5
14
0