Tasmania v Rbay
[2023] TASSC 41
•6 November 2023
[2023] TASSC 41
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | TASMANIA v RBAY [2023] TASSC 41 |
| PARTIES: | STATE OF TASMANIA |
| v | |
| RBAY | |
| FILE NO: | 630/2020 |
| DELIVERED ON: | 6 November 2023 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 7 August 2023 |
| JUDGMENT OF: | Pearce J |
| CATCHWORDS: |
Constitutional Law – Operation and effect of the commonwealth constitution – Restrictions on commonwealth
and state legislation –Rights and freedoms implied in commonwealth constitution –General principles
– Removal of requirement for extended unanimity in charge of persistent sexual abuse of a child
– Amendments not invalid by reason of application of Kable principle.
Criminal Code 1924, s 125A
Aust Dig Constitutional Law [428]
Statutes – Acts of parliament – Interpretation – General approaches to interpretation – Words to be given literal and grammatical meaning – General principles
Criminal Code 1924, s 125A
Aust Dig Statutes [1018]
REPRESENTATION:
Counsel:
Accused: B J Doyle KC, F P Merenda State of Tasmania: M Allen Intervenor: S K Kay SC
Solicitors:
Accused: Tindall Gask Bentley Lawyers State of Tasmania: Director of Public Prosecutions Intervenor: Solicitor-General
| Judgment Number: | [2023] TASSC 41 |
| Number of paragraphs: | 51 |
Serial No 41/2023 File No 630/2020
STATE OF TASMANIA v RBAY
| REASONS FOR JUDGMENT | PEARCE J |
6 NOVEMBER 2023
1 The accused is arraigned on one count of persistent sexual abuse of a child contrary to the Criminal Code, s 125A. I agreed to, before a jury is sworn, determine a question of law and procedure which has arisen: s 361A. Section 125A was amended by the Family Violence Reforms Act 2018, s 4 (the FVR Act) which came into effect on 10 December 2018. The accused contends that, in its amended form, s 125A offends the Kable principle, deriving from the decision of the High Court in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51, because it results in a departure to a significant degree from the processes which characterise the exercise of judicial power. The accused contends that the legislative changes so impair the institutional integrity of this Court as to result in the invalidity of the amendments, and the law to be applied in the trial of the accused is that which was in force immediately before the FVR Act came into effect.
2 Notice of these proceedings was given in accordance with the Judiciary Act 1903 (Cth), s 78B. The Attorney-General for Tasmania intervened and was represented by the Solicitor-General, Ms S K Kay SC. Counsel for the State, Mr Allen, appeared but adopted the submissions made by the Solicitor- General.
3 For the reasons which follow the accused's submissions about the proper interpretation of s 125A should be accepted. However, in my view, the submission that the amendments to s 125A brought into effect by the FVR Act are invalid should not be accepted and the jury will be directed in accordance with the terms of s 125A in its current form.
The legislation and the amendment
4 Immediately prior to the commencement of the FVR Act, s 125A of the Code was entitled "Maintaining a sexual relationship with a young person" and provided:
"125A. Maintaining sexual relationship with young person
(1) In this section, unlawful sexual act means an act that constitutes an offence under section 124, 125B, 126, 127, 133 or 185 whether committed before, on or after the commencement of this section.
(2) A person who maintains a sexual relationship with a young person who is under the age of 17 years, and to whom he or she is not married, is guilty of a crime.
Charge: Maintaining a sexual relationship with a young person under the age of 17 years.
(3) An accused person is guilty of having committed an offence under subsection (2) if, during a particular period when the young person was under the age of 17 years
–
(a)
the accused committed an unlawful sexual act in relation to the young person on at least 3 occasions; and
(b) the young person was not married to the accused.
(4) For the purposes of subsection (3) – 2 No 41/2023
(a)
it is not necessary to prove the dates on which any of the unlawful sexual acts were committed or the exact circumstances in which any of the unlawful sexual acts were committed; and
(b)
the unlawful sexual act that was committed on any one of the occasions need not have been the same as the unlawful sexual act that was committed on each or any of the other occasions.
(5) . . . . . . . .
(6) An indictment charging a person with having committed an offence under subsection (2) –
(a) is to specify the particular period during which it is alleged that the sexual relationship between the accused and the young person was maintained; and (b) is not to contain a separate charge that the accused committed an unlawful sexual act in relation to the young person during that period.
(6A) A reference in this section to an unlawful sexual act that is committed by a person in relation to a young person includes a reference to conduct that was, in relation
to the young person, committed by the person outside the State if –
(a) the conduct was unlawful in the State, territory or country in which it was committed and, if it had been committed in this State by the person in relation to the young person, would have been an unlawful sexual act; and (b) at least one unlawful sexual act in relation to the young person was committed by the person in this State.
(7) A prosecution for an offence under this section is not to be commenced without the written authority of the Director of Public Prosecutions."
5 Provisions in similar, though not identical, terms have been the subject of detailed judicial analysis. In KBT v The Queen [1997] HCA 54; 191 CLR 417, the High Court was concerned with the offence against s 229B(1) of the Criminal Code (Qld) of maintain "an unlawful relationship of a sexual nature with a child under the age of 16 years". By the terms of s 229B(1A), the matters required to be proved before a person could be convicted of that offence included that the offender had, during the period during which the relationship was said to have been maintained, "done an act defined to constitute
an offence of a sexual nature in relation to the child…on 3 or more occasions." Brennan CJ, Toohey,
Gaudron and Gummow JJ concluded, at 422, that the crime was not a course of conduct offence and, because the acts which constituted the crime were those which constituted the sexual offences, an accused could not be convicted unless the jury was agreed as to the commission of the same three or more illegal acts. The requirement for agreement of the same sexual offences has come to be referred to as a requirement for extended unanimity. In so finding, their Honours observed 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 of more occasions…rather than maintain an unlawful sexual
relationship".
6 In KRM v The Queen [2001] HCA 11; 206 CLR 221 the High Court considered the Crimes Act 1958 (Vic), s 47A, which required proof of a sexual offence on three occasions although it was not necessary to prove the dates or the exact circumstances of the alleged occasions. McHugh J, at [17] expressed the need for the prosecution to "prove the circumstances or occurrences surrounding each of the acts in sufficient detail to identify each 'occasion'". At [92], Kirby KJ expressed agreement and
3 No 41/2023
said: "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."
7 On 13 September 2017 the High Court delivered its decision in Chiro v The Queen [2017] HCA 37; 260 CLR 425. That case concerned s 50(1) of the Criminal Law Consolidation Act 1935 (SA), which provided that a person who, over a period of not less than three days, committed more than one act of sexual exploitation of a particular child under the prescribed age was guilty of the offence of persistent sexual exploitation of a child. At trial the prosecution case against the accused was that he committed at least six sexual acts of varying degrees of seriousness against the complainant over a period of more than three years. The jury returned a general verdict of guilty. The High Court noted, applying KBT, that the trial judge correctly directed the jury with respect to the requirement for extended unanimity, and so it was to be assumed that the jury reached the requisite agreement as to the commission of the same two or more acts of sexual exploitation separated by not less than three days. However, because the trial judge did not ask the jury which of the acts of sexual exploitation they had found to be proved, there was no way of knowing which they were. The result was that the offender was to be sentenced on the basis most favourable to the offender. The reasons were summarised by Kiefel CJ, Keane and Nettle JJ at [52]:
"Since Cheung, this Court has taken the view that, generally speaking, a judge is not required to sentence on a view of the facts most favourable to an offender, but should make his or her own findings as to the aggravating and mitigating circumstances of the offence of which the offender has been convicted. But in the case of an offence under s 50(1) of the CLCA, the position is different. Where an accused stands trial before a jury for an offence of a continuing nature, such as, for example, trafficking a prohibited drug over a period of time, the jury need not be unanimous (or agreed by statutory majority) as to each of the particular acts which are alleged to have comprised the actus reus of the offence. But, as already stated, in the case of an offence under s 50(1) of the CLCA the underlying acts of sexual exploitation are the actus reus of the offence and it is for the jury to find the acts which comprise the actus reus. Otherwise, it would not be a trial by jury. Of course, as has been observed, a jury cannot be compelled to explain the basis of its verdict." (Footnotes removed)
8 It follows from the reasoning in Chiro that had the jury specified which of the acts of sexual exploitation it had agreed upon, then the offender was to be sentenced on the basis that he had committed those acts.
9 The Criminal Justice Report of the Royal Commission into Institutional Responses to Child Sexual Abuse was published in August 2017, before the judgment in Chiro was handed down. The Commissioners expressed a number of what were referred to as "risks" arising from the requirement for extended jury unanimity including that:
"'Even though the jury may be satisfied that there occurred numerous acts of sexual exploitation over a number of years' [footnoted to R v Johnson SASCFC 170], they may not be able to deliver a guilty verdict despite being satisfied that the accused is a
perpetrator of child sexual abuse and perhaps quite extensive sexual abuse."
10 The Royal Commission Report included (as Appendix H) a model provision creating an offence of maintaining a sexual relationship with a child based on s 229B of the Queensland provision as follows:
"3 Offence of maintaining unlawful sexual relationship with child
(1) An adult who maintains an unlawful sexual relationship with a child is guilty of an
offence.
Maximum penalty: Imprisonment for 25 years.
4 No 41/2023
(2) An unlawful sexual relationship is a relationship in which an adult engages in 2 or
more unlawful sexual acts with or towards a child over any period.(3) An unlawful sexual act is any act that constitutes, or would constitute (if particulars of the time and place at which the act took place were sufficiently particularised), a sexual offence.
(4) For an adult to be convicted of an unlawful sexual relationship offence, the trier of fact must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed.
(5) However,
(a) the prosecution is not required to allege the particulars of any unlawful sexual act
that would be necessary if the act were charged as a separate offence, and(b) the trier of fact is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence, but must be satisfied as to the general nature or character of those acts, and
(c) if the trier of fact is a jury, the members of the jury are not required to agree on
which unlawful sexual acts constitute the unlawful sexual relationship…"
11 In Tasmania, the Second Reading speech for the Bill which led to the introduction of the FVR Act was made by the Minister for Justice on 16 October 2018. The Minister expressly stated that the amendments to s 125A of the Code were in response to the Royal Commission report. It seems plain enough that the amendments were also at least partly in response to Chiro. In the course of the speech the Minister said:
"This Bill implements the recommendation of the Royal Commission by amending s 125A of the Criminal Code through the inclusion of paragraph (c) to overcome the requirement that all members of the jury be satisfied of the same unlawful sexual acts regarding a charge under s 125A.
The proposed s 125A(6B) proposes that when sentencing the accused for the offence against s 125A, a judge does not need to inquire of the jury which unlawful sexual acts the finding of guilt was based upon. The sentencing judge is to make her of his own findings as to the nature and/or character of the unlawful sexual relationship on the evidence heard at trial and sentence the accused accordingly. This clarifies that the judge is to sentence on the basis that the identified occasions were not isolated acts but rather ones that took place during the course of the relationship."
12 The reference to "the course of the relationship" at the end of the passage just quoted is to be considered in context. The FVR Act also introduced into the Code, as s 170A, the crime of "Persistent family violence". The Minister explained the intention that the provision operate in a way which was equivalent to s 125A. The Minister said:
"The proposed provisions for the new offence at s 170A, also a 'relationship offence', are consistent with the proposed provisions to s 125A of the Criminal Code." (Emphasis added)
13 The amendments to s 125A removed the requirement for extended unanimity by inserting a new provision, s 125A(4)(c) in the following terms:
"(c) on a trial before a jury for an offence against subsection (2), it is not necessary for each member of the jury to be satisfied that the unlawful sexual acts were committed
on the same 3 occasions."
14 In addition, a new s 126(6B) was inserted:
5 No 41/2023
"(6B) A Court sentencing a person for an offence against subsection (2) is to make findings in relation to either the nature or the character, or both the nature and character, of the sexual relationship maintained and, in doing so, the Court is not required to ask any questions of the jury for the purposes of making those findings."
15 Notwithstanding the model provision stated in the Royal Commission Report, no amendment was made in the FVR Act to the terms of s 125A(3), which in contrast to the model provision, made no reference to an "unlawful sexual relationship", a "sexual relationship" or a "relationship". Instead, it continued to provide that "a person was guilty of the crime" if he or she committed an unlawful sexual act as defined in sub-s (1) against a young person to whom he or she was not married, on at least three occasions, during the particular period specified in the indictment. Nor did the Tasmanian provision
include the equivalent of the Royal Commission model provision subs (4).
Statutory construction of s 125A as amended
16 Before the constitutional validity of a statute is considered its meaning and operation must be determined. The process of construction begins with a consideration of the ordinary and grammatical meaning of the words of the provision having regard to their context and legislative purpose: Australian Education Union v Department of Education and Children's Services [2012] HCA 3, 248 CLR 1 at [26]. The context includes the historical background to the provision, its policy and purpose and the mischief which it may be seen that the statute is intended to remedy: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [47]; R v A2 [2019] HCA 35; 269 CLR 507 at [33]. As was explained by French CJ in K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; 237 CLR 501, interpretation is "also to be informed by the principle that the parliament, whether of the State or the Commonwealth, did not intend its statute to exceed constitutional limits. It should be interpreted, so far as its words allow, to keep it within constitutional limits." (Footnotes removed)
17 The accused submits that the effect of s 125A, properly interpreted, is that a person may be found guilty of the crime of persistent sexual abuse of a child by proof of commission of unlawful sexual acts within the indictment period on three separate occasions. In other words, unlike legislative provisions in other States, s 125A does not require proof of a relationship or sexual relationship in addition to proof of the sexual acts. The accused contends that proposition to be correct despite the reference in s 125A(2) to a "relationship", the reference in other parts of s 125A to an "offence against subsection (2)", and to the requirement in subs (6B) that a sentencing judge make findings in relation to "the nature and character of the sexual relationship maintained". It is also, so the accused contends, notwithstanding the reference by the Minister in the Second Reading Speech to s 125A being a "relationship offence".
18 The contentions of the accused should be accepted. In my opinion, the ordinary literal and grammatical meaning of the text of s 125A(3) permit no other interpretation. That is so even when the context and legislative history of the provision is considered, and even if Parliament may have intended that the amended provision have a different meaning and serve a different purpose. The conclusion is demonstrated by comparison of the text of Tasmanian provision with the text of the legislation in other States and the ACT.
19 In 2003 the Criminal Code (Qld), s 229B, was amended to overcome the requirement for extended unanimity. In its amended form the section provided:
"229B Maintaining a sexual relationship with a child
(1) Any adult who maintains an unlawful sexual relationship with a child under the
prescribed age commits a crime.
Maximum penalty–life imprisonment
6 No 41/2023
(2) An unlawful sexual relationship is a relationship that involves more than 1 unlawful
sexual act over any period.(3) For an adult to be convicted of the offence of maintaining an unlawful sexual relationship with a child, all the members of the jury must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship with the child involving unlawful sexual acts existed.
(4) However, in relation to the unlawful sexual acts involved in an unlawful sexual
relationship–(a) the prosecution is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence; and
(b) the jury is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence; and
(c) all the members of the jury are not required to be satisfied about the same unlawful
sexual acts."
20 The section was considered by the Court of Appeal in R v CAZ [2011] QCA 231; (2012) 1 Qd R 440. The reasoning in CAZ continued the approach applied in previous decisions of the Court, including R v DAT [2009] QCA 181, that proof of an offence under s 229B requires proof not only of more than one unlawful sexual act, but also proof of a "sexual relationship" with the child of "sufficient continuity or habituality to justify the inference that the defendant maintained a sexual relationship with the child…": per Fraser JA (with whom Chesterman and White JJA agreed) at [46]. In MK v R; RB v R
[2023] NSWCCA 180 the New South Wales Court of Criminal Appeal disapproved that approach and pointed out, correctly in my respectful opinion, some tension between the decision in CAZ and the decisions of the High Court in KBT and BBH v The Queen [2012] HCA 9; 245 CLR 499. Be that as it may, CAZ makes clear the requirement in the Queensland provision that proof of something other than the unlawful sexual acts is required.
21 The South Australian provision is contained in the Criminal Law Consolidation Act 1935 (SA), s 50. In 2017 the provision was amended to correspond with the Royal Commission model provision with the result that s 50 included the following provisions:
"50–Persistent sexual abuse of a child
(1) An adult who maintains an unlawful sexual relationship with a child is guilty of an
offence.
Maximum penalty: Imprisonment for life.
(2) An unlawful sexual relationship is a relationship in which an adult engages in 2
or more unlawful sexual acts with or towards a child over any period.
(3) For an adult to be convicted of an unlawful sexual relationship offence, the trier of
fact must be satisfied beyond reasonable doubt that the evidence establishes that an
unlawful sexual relationship existed."
22 The Court of Criminal Appeal in that State has authoritatively determined that proof of the offence requires proof of a relationship (not necessarily a sexual one) between the accused and the complainant in addition to proof of the commission of the multiple sexual acts themselves. The law derives from the decision of Kourakis CJ, with whom Lovell J agreed, in R v M, DV [2019] SASCFC 59; 133 SASR 470 and R v Mann [2020] SASCFC 69; 135 SASR 457 and was applied in Henry v The Queen [2022] SASCA; 403 ALR 369. As was expressed by Doyle JA in Henry at [87]-[89], the actus reus of s 50 has two elements. The first "is the existence and maintenance of a relationship, which need not be sexual, between an adult and a child." The second is that "the adult corrupted the relationship by
7 No 41/2023
engaging in two or more unlawful sexual acts with the child." As to the relationship element, in Mann, Kourakis CJ stated that whether a relationship exists is a question of fact, that the categories cannot be closed and may encompass a wide range, but may include familial, legal and de-facto, relationships, residential relationships, working relationships, sporting and recreational relationships and professional relationships.
23 The distinction between the terms of s 50(2) of the South Australian provision and s 125A(3) of the Tasmanian provision arises from the terms of the definition of an unlawful sexual relationship in the former provision as being a relationship in which the unlawful sexual acts are engaged in.
24 The Crimes Act 1900 (NSW), s 66EA, creates the crime of persistent sexual abuse of a child. In MK v R; RB v R [2023] NSWCCA 180 a bench of five judges of the Court of Criminal Appeal was constituted to resolve questions about the elements of that offence. Section 66EA(1) provided that "[a]n adult who maintains an unlawful sexual relationship with a child is guilty of an offence". Section 66EA(2) stated that "[a]n unlawful sexual relationship is a relationship in which an adult engages in 2 or more unlawful sexual acts with or towards a child over any period" (italicised bold in original). The question for determination was whether proof of the commission of two or more unlawful sexual acts was sufficient to make out the offence, or whether the prosecution must also prove the existence of a relationship "in which" the unlawful sexual acts were committed or alternatively prove the existence of a sexual relationship between the accused and a child over and above the commission of the unlawful sexual acts.
25 The lead judgment in MK v R was written by Beech-Jones CJ at CL. His Honour concluded that the provision was to be interpreted to require proof of a relationship and that what converted the relationship into an unlawful sexual relationship was the commission of the unlawful sexual acts. It was the construction adopted by Basten AJA in his Honour's minority judgment in RW v R [2023] NSWCCA 2.
26 Finally, and in contrast to the Queensland, South Australian and New South Wales provisions, reference must be made to the decision of the Court of Appeal of the Australian Capital Territory in KN v The Queen [2019] ACTCA 37; 14 ACTLR 289. In that case the Court construed the terms of s 56 of the Crimes Act 1900 (ACT) then in force. It relevantly provided:
"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.
...
(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; or8 No 41/2023
(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
..."
27 The relevant question for the Court was whether proof of an offence against s 56 required proof, in addition to establishing that a sexual act occurred on two or more occasions, that there was a "sexual relationship" between the accused and the young person. Murrell CJ and Rangiah J, with whom Mossop J agreed, concluded that it did not. Their Honours considered the legislative history of s 56, the Royal Commission report, decisions of the High Court and of other intermediate courts of appeal, in particular the South Australian decision in R v M, DV, and compared the terms of the provision to the terms of equivalent provisions in other States and the model provision. Their Honours noted that the Explanatory Statement which accompanied the 2017 bill to amend s 56 in response to the Royal Commission referred to the recommendation of the Commission that legislation be introduced "so that the unlawful sexual relationship, rather than the individual sexual acts, constitute the actus reus for the offence in accordance with the Model Provision" and that "s 56(4) is intended to clarify that the prosecution must prove the existence of the unlawful relationship, not the individual sexual acts, beyond reasonable doubt." Their Honours concluded that the clear words of s 56(2) compelled the conclusion that the offence was committed on proof of the sexual acts, and that the "text provides no scope to impose an additional element of the offence." Their Honours noted that the legislature had chosen to enact s 56(2) although it differed substantially from the model provision. Moreover, their Honours reached that conclusion notwithstanding their concern that the result was that:
• there was no requirement for jury unanimity about the conduct founding the offence; • the purpose stated by the Royal Commission and in the explanatory statement was not achieved; and • s 56(4) had little, if any, work to do. 28 The decision in KN was distinguished by NSW Court of Appeal in MK v R; RB v R because "s 56(2) did not refer to or even imply the existence of any relationship between the offender and the victim." Although the decision in KN may be distinguished on that basis in New South Wales (and in South Australia and Queensland), it is not so distinguishable in Tasmania. The reasoning adopted by their Honours in KN applies in Tasmania with even greater force. The Tasmanian provision, similarly, does not, in s 125A(3), refer to or even imply the necessity for proof of the existence of a relationship. The terms of s 125A go further in that it is unambiguously stated, in subs (3), that "a person is guilty of having committed an offence under subsection (2)" if the unlawful sexual acts are proved, and there is no equivalent to s 56(4) of the ACT provision. Although there are some other differences in the terms of the ACT and Tasmanian provisions, I would consider myself bound to follow KN. In any event, I respectfully agree with it.
29 The terms of the Second Reading speech introducing the FVR Act may be an aid to interpretation but cannot justify a departure from the clear words of the legislation. When amending the legislation in 2018 the legislature did not amend the terms of s 125A(3) so that it was equivalent to the model provision or the comparable legislation in Queensland, South Australia or New South Wales, although it could have done so. I am mindful that the construction I have adopted leaves the terms of s 125A(2) with little work to do, but even if an argument could be sustained that maintenance of a sexual relationship could be proved independently of subs (3), which I doubt, there is no available reading of sobs (3) which would justify the conclusion that a person is not guilty of the offence if three separate
9 No 41/2023
occasions on which an unlawful sexual act is committed are proved. The terms of s 125(6B) which apply to the task of a sentencing judge when finding facts for sentence, whilst contextually relevant, do not overcome the clear words of subs (3) about when guilt is proved.
30 In my view, on its proper construction, guilt of an offence under s 125A of the Code is established by proof, without more, of three separate occasions during a particular period on which the accused committed an unlawful sexual act against the young person. If those acts are proved then that conduct constitutes maintenance of a sexual relationship within the terms of subs (2), and there is no additional requirement for proof of a relationship or sexual relationship.
The Constitutional challenge
31 The result of the construction of s 125A I have adopted is that the accused may not be found guilty of a crime under subs (2) unless the jury, unanimously or by majority, is satisfied beyond reasonable doubt that during a particular period the accused committed an unlawful sexual act in relation to the young person on at least three occasions. However, if s 125A(4)(c) is valid, the jury need not be satisfied that the unlawful sexual acts were committed on the same three occasions.
32 The case against the accused is particularised on the basis that he committed an unlawful sexual act against the complainant on ten separate occasions. Consequently, the accused may be found guilty of the crime, even if there is no agreement amongst the jury, or even the majority of the jury, about which occasions have been proved provided that there is agreement that "at least three" have been proved. The judge is not required to ask any question of the jury when making findings for sentence in accordance with s 125A(6B). There would be little utility in doing so in any event because the absence of a requirement for extended unanimity means that the verdict may have been reached for quite different reasons amongst individual jurors. One member of the jury may have been satisfied that only three occasions were proved. Another member of the jury may be satisfied that a different three or more occasions involving a greater or lesser degree of seriousness were proved. Another member of the jury
may be satisfied that all specified occasions were proved.
33 There have been two challenges to the constitutional validity of legislation of this type based on the Kable principle, first in 2011 in Queensland in CAZ, and secondly in South Australia in 2022 in Henry. I will return to an examination of those cases, as well as to make reference to a further South Australian case, Question of Law Reserved (No 1 of 2018) [2018] SASCFC 128; 275 A Crim R 400. The accused, in his written submissions, refers to various statements of the Kable principle. The principle for which Kable stands is stated in Attorney-General (NT) v Emmerson [2014] HCA 13; 253 CLR 393 at 424 [40]:
"that because the Constitution establishes an integrated court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a power or function which substantially impairs the court's institutional integrity, and which is therefore incompatible with that court's role as a repository of federal jurisdiction, is constitutionally invalid" (footnotes omitted).
34 In Garlett v Western Australia [2022] HCA 30; 96 ALJR 888, at [7] Kiefel CJ, Keane and Steward JJ re-stated the principle in these terms:
"The decision in Kable established that, by reason of the integrated system of courts postulated by the provisions of Ch III of the Constitution, State legislation which purports to confer upon a State Supreme Court a function which substantially impairs the institutional integrity of such a court in its role as a repository of federal jurisdiction is 'repugnant to or incompatible with' that role and is, therefore, invalid."
35 Gageler J stated at [118] of his Honour's reasons in Garlett:
10 No 41/2023
"The secondary operation of Ch III can therefore be expressed, sufficiently for present purposes, as being to invalidate a State or Territory law which purports to confer upon a State or Territory court a function that 'substantially impairs its institutional integrity' considered in terms of its capacity to be (and be seen to be) an institution for the administration of justice according to the common law system of adjudication."
36 See also Kuczborski v Queensland [2014] HCA 46; 254 CLR 51 at 98 [139] and Vella v Commissioner of Police (NSW) [2019] HCA 38; 269 CLR 219 at 245-246 [55]. The accused refers to the reasons of Bell, Keane, Nettle and Edelman JJ in Vella at [56]:
"Although it is only extreme legislation that will substantially impair the institutional integrity of a State court, the boundaries of the Kable principle are not sharp. The contours of the categories where State legislation will substantially impair a court's institutional integrity will necessarily emerge slowly. But the categories must develop in a principled, coherent, and systematic way rather than as evaluations of specific instances."
37 The accused contends that the that the function given to the Supreme Court by s 125A in its amended form impairs its institutional integrity by departing to a significant degree from the processes which characterise the exercise of judicial power, particularly when that function involves the adjudication of criminal guilt. He refers to the role of a jury in the exercise of "judicial power" and argues that because the jury is the "constitutional tribunal for deciding issues of fact" the result of s 125A is to "work a radical alteration to the conventional mode of criminal trial by jury."
38 It may be accepted that the jury is "the fundamental institution in our traditional system of administering criminal justice": Brown v The Queen (1986) 160 CLR 171 per Brennan J at 197. Trial by jury is "universally regarded as a fundamental right of the subject": Newell v The King (1936) 55 CLR 707 per Evatt J at 713, cited in Cheatle v The Queen [1993] HCA 44; 177 CLR 541. Those cases each concerned, in differing contexts, the requirement for jury unanimity rather than statutory majority. The jury is, as representatives of the community chosen at random, "the constitutional tribunal for deciding issues of fact", in a criminal trial to ascertain guilt or innocence: R v Baden-Clay [2016] HCA 35; 258 CLR 308. See also Alqudsi v The Queen [2016] HCA 24; 258 CLR 203.
39 While those authorities confirm the fundamental role of the jury trial in the administration of criminal justice, they do not, for present purposes, specify the minimum requirements to ensure that a jury trial meets that description or what might result in an impermissible impairment of a criminal court's institutional integrity in a Kable sense. The accused submits that there is such an impairment because the result of s 125A is that the verdict does not, or need not, involve a collective finding about the actus reus of the crime. It follows, the accused submits, that the sentencing judge will make findings and fix sentence based on those findings which may be "untethered from" the verdict and may be "contrary to the sentencing judge's own assessment of the question of guilt." The accused makes the following submissions, some of which are interrelated:
•
removal of the requirement for extended unanimity relieves the jury of the important need to work collectively, a fundamental characteristic of jury decision-making;
•
it is possible that, in respect to each occasion identified by the prosecution on which unlawful sexual act was committed, the majority of the jury were not persuaded of guilt;
•
without the safeguard and discipline generated by the requirement for unanimity, there is a departure from the ordinary and essential characteristics of the exercise of judicial power to such a degree as to impair the institutional integrity of the Supreme Court;
•
a verdict will be so uncertain as to its substantive content as to amount to a departure from the characteristic incidents of the exercise of judicial power; and
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• the verdict may lack a common or unanimous foundation with respect to the actus reus such that the sentence may have no connection with the conduct the jury found to be proved.
40 In CAZ, a Kable challenge to the validity of the equivalent Queensland provision on similar grounds was rejected. The principal judgment was delivered by Fraser JA with whom Chesterman and White JJA agreed. The appellant's contentions included that the provision impermissibly eroded the "right to trial by jury and to receive a unanimous verdict (subject only to legislative safeguards for permissible substantial majority verdicts)." As the argument was recorded by Fraser JA, the appellant relevantly argued that Ch III of the Constitution of the Commonwealth was offended because "the jury can effectively return a non-unanimous verdict contrary to the requirement for a trial by jury and a unanimous verdict under s 80 of the Constitution", and "a unanimous verdict by a jury satisfied of the material facts beyond reasonable doubt on each element of the offence is an essential feature of a jury trial", and "there were no safeguards to protect the rights of defendants" because the practical result was to "enable the jury to return a non-unanimous verdict 'on an element of the offence', namely the alleged unlawful sexual acts of the defendant."
41 Fraser JA rejected those contentions. Section 80 of the Constitution, which appears in Ch III, provides in relevant part that "[t]he trial on indictment of any offence against any law of the Commonwealth shall be by jury ...". His Honour noted, at [52], that the High Court decisions "concerning the effect of s 80 as conferring a constitutionally entrenched status upon the essential features of the institution of trial by jury at common law at the time of federation did not extend to trials in State courts of offences against State law." That statement would not detract from the force of authorities such as Newell, Brown and Cheatle about the fundamental role of the jury trial according to the common law. However, his Honour's essential reasoning is stated at [53]-[55] which should be set out in full:
"[53] In any event, s 229B does not purport to dispense with trial by jury. Indeed, s 229B expressly contemplates trial by jury and requires jury unanimity upon the essential allegation that the defendant maintained a sexual relationship with a child that involved more than one unlawful sexual act. The appellant argued that a direction to the jury (in conformity with s 229B(3)) that all jurors must be satisfied beyond reasonable doubt of one or more unlawful sexual acts, but (in conformity with s 229B(4)(c)) not necessarily of the same acts, is inconsistent with the conventional directions that the prosecution must prove each element of the offence beyond reasonable doubt before it may convict and that the jury's verdict in respect of each offence must be unanimous. There is no such conflict. The jurors could be unanimously satisfied that the defendant maintained an unlawful sexual relationship with the child involving more than one unlawful sexual act whilst at the same time disagreeing about which two or more of numerous alleged unlawful sexual acts were proved beyond reasonable doubt.
[54] Because jurors might differ about which unlawful sexual acts are proved and which are not, a verdict that the defendant is guilty of an offence against s 229B may leave unresolved some matters that bear significantly upon the defendant's culpability, such as the frequency and seriousness of the unlawful sexual acts involved in the unlawful sexual relationship. In the result, trial judges may be required to make significant findings of fact in the sentencing process. In this respect s 229B, like some other provisions (such as those which create the offence of trafficking in drugs) reduces the role of the jury in the fact finding process and to that extent erodes the safeguards traditionally associated with trial by jury of more specific offences, but that is not an unconventional feature of trial by jury. These results are necessary corollaries of the qualified dispensation from alleging particulars given by s 229B(4)(a) and are justifiable by the considerations I have already discussed.
[55] In my opinion, s 229B does not work such a serious diminution upon the necessary extent of particularisation of the offence, the usual requirement for jury unanimity (or majority verdicts in certain cases), or other procedures designed to ensure a fair trial, as to justify the conclusion that the trial court no longer exhibits any of the defining
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characteristics which mark it apart from other decision-making bodies. I would hold that s 229B of the Code is not constitutionally invalid on any of the grounds argued by the appellant."
42 The accused points out the distinction between the Queensland and Tasmanian provisions such that, in the former, jury unanimity of the existence of an unlawful sexual relationship is required. However, in my opinion, the essential aspects of his Honour's reasoning are not dependant on that requirement. His Honour clearly reached the conclusion that jury disagreeing about which two or more of numerous alleged unlawful sexual acts were proved did not result in invalidity of the provision.
43 The validity of part of the South Australian provision was challenged on constitutional grounds in Henry. The lead judgment was written by Doyle JA, with whom David JA agreed, but I refer first to the reasons of Livesey P. His Honour first examined and explained the basis of the decision of the High Court in Chiro. His Honour noted at [12] that the requirement for extended unanimity which applied in Chiro meant that, unless the jury had identified the underlying acts of sexual exploitation were identified, the sentence was to be imposed on the basis most favourable to the offender because, otherwise, the accused may be sentenced for an offence the jury did not find him to have committed. However, his Honour then addressed the position following removal of the legislative requirement for extended unanimity and stated, at [26]-[29]:
"[26] Because the trier of fact must make a finding about the existence of an unlawful sexual relationship, and if that is a jury it is no longer required to be agreed about which of the 2 or more unlawful sexual acts alleged constitute the unlawful sexual relationship, the jury may well reach agreement about the existence of the unlawful sexual relationship without also being in agreement as to which 2 or more unlawful sexual acts were engaged in with or towards a child over the particularised period of time.
[27] In consequence, the question of consistency between the determination made by the sentencing court and the verdict of the jury is to be assessed differently than it was at the time of Chiro and that assessment must now be made by reference to s 50(4)(c) and s 50(11) of the CLCA.
[28] Apart from sentencing consistently with the verdict that there was an unlawful sexual relationship, it is for the sentencing court to determine the general nature or character of the unlawful sexual acts which were proved beyond a reasonable doubt. Contrary to the contention of the applicant in this case, the sentencing court is not required to evaluate the verdict of the jury in order to be satisfied as to which two or more unlawful sexual acts were committed. Following a conviction after a trial by jury, a sentencing judge is required to find the facts on the evidence, consistently with the jury's verdict: Savvas v The Queen [1995] HCA 29; 183 CLR 1 at 8 (Deane, Dawson, Toohey, Gaudron and McHugh JJ). A sentencing judge ought not speculate on what findings the jury would or could have made on the basis of the evidence: Fuller v R [2022] NSWCCA 203 at [9]- [13] (myself) and [105]-[106] (N Adams J).
[29] It follows that s 50(11), unlike s 9(2) of the Amending Act considered in Question of Law Reserved (No 1 of 2018), neither requires nor permits a sentencing court to sentence on a basis that is inconsistent with the verdict of the jury. It follows that the basis upon which the Court of Criminal Appeal found that s 9(2) impermissibly interfered with the adjudication and punishment of criminal guilt by the court such as to offend the Kable principle is absent in this case."
44 Nothing Livesey P said about the validity of the amendments depended upon jury unanimity about the additional requirement, according to the South Australian legislation, of proof of the existence of a relationship in addition to the unlawful sexual acts. His Honour's reasoning applies with equal force to the Tasmanian legislation as I have determined it should be interpreted.
45 Like Livesey P, Doyle JA distinguished the Court's previous decision in Question of Law Reserved (No 1 of 2018). That case concerned the operation of a transitional provision which, in short
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summary, permitted the sentencing court, after a verdict of guilt returned when the requirement for extended unanimity applied, to sentence on the basis of the alleged acts of sexual exploitation the judge, rather than the jury, found proved. The Court unanimously held that the provision impaired in institutional integrity of the Court and was invalid. Separate reasons were given by Vanstone J and Hinton J. However Doyle JA, in Henry, found that an essential aspect of the reasoning of both was that the provision permitted the sentencing judge to sentence on a basis that was inconsistent with the jury's verdict. The question in Henry was whether the amended provision, after removal of the requirement for extended unanimity, was invalid for the same reasons. Doyle JA found that it was not and referred to the submission as "misconceived". At [95]-[96] his Honour stated:
"[95] As I have already explained, a key feature of the MUSR offence under the current version of s 50 of the CLCA is that it expressly does away with any requirement that the jurors be agreed as to the particular unlawful sexual acts. The requirement of jury unanimity does not extend beyond agreement that the relationship between the accused and the complainant was corrupted by the commission of at least two unlawful sexual acts. It does not require agreement as to the particular unlawful sexual acts that have been proved.
[96] Understood in this way, the jury verdict does not entail any conclusion as to the particular unlawful sexual acts that were committed by the accused. While individual jurors will have formed conclusions as to which acts were established beyond reasonable doubt, their task does not extend to their being agreed, as the constitutional finder of fact, or as an institution or body, as to which of those acts were committed. No particular finding or conclusion in this respect is inherent in the jury's verdict."
46 At [101]-[102] his Honour continued:
"[101]…the task required by the sentencing judge under s 50(11) does not differ from
the task ordinarily undertaken by a sentencing judge. The sentencing judge takes the verdict as his or her starting point. While the sentencing judge is left to make additional findings of fact to establish the detailed factual basis for imposing sentence, he or she is required to do so in a manner that is consistent with the jury's verdict. In this way, the sentencing task contemplated by s 50(11) mirrors the orthodox fact-finding function undertaken by sentencing judges that has a considerable historical pedigree and prevailed before the decision in Chiro v The Queen."
[102] Properly understood, the task required by the sentencing judge under s 50(11) is, for example, analogous to that which occurs following a conviction for the offence of manslaughter where distinct grounds for finding manslaughter (such as provocation, excessive self-defence and unlawful and dangerous act manslaughter) were raised, but no questions were asked of the jury regarding the basis for their verdict. In circumstances where, like under s 50 of the CLCA, the jury need only agree as to the general verdict (as opposed to the basis for that verdict), the sentencing judge must find for himself or herself the facts material to the sentencing. Provided the judge imposes a sentence on the basis of manslaughter (and not murder), no issue arises as to inconsistency with the jury's verdict." (Citations removed)
47 Doyle JA stated that he was fortified in his conclusion by the decision in CAZ. The accused in this case submits that "it is apparent that the Court proceeded on the footing that there was a collective jury finding as to the maintenance of an unlawful sexual relationship, and it was for that conduct which the sentencing judge would proceed to formulate a sentence." To the extent that this submission suggests that the reasoning of the Court in Henry depends on a requirement in South Australia for proof of the existence of a "relationship" it is to be rejected. None of the passages I set out suggest this to be the case. I would add that, in my view, it would be difficult to understand how the validity of the provision may be preserved by jury unanimity about proof of a relationship involving no criminal conduct when the contended invalidity arises from the absence of unanimity about the unlawful element of the offence, the unlawful sexual acts.
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48 Counsel for the accused submits that the Court of Appeal, in Henry, did not confront the more fundamental point that the accused now raises, that if part of the actus reus of the crime is not collectively determined by a jury, the jury is "doing something quite different to what juries normally do". The accused contends that the challenge was not to the efficacy of the verdict or the process by which the finding of guilt was made but, rather, was confined to the sentencing provision. I do not accept that submission. The question of the validity of the sentencing provision under challenge in Henry could not be assessed without consideration of the respective functions of the jury and sentencing judge under the South Australian provision when considered as a whole. Those issues were expressly addressed by both Livesey P and Doyle JA in rejecting the challenge to validity.
49 In any event, by resort to principle, I do not consider that s 125A in its amended form results in such a departure from the processes which characterise the exercise of judicial power as to impair the institutional integrity of the Court. In North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; 256 CLR 569 French CJ, Kieffel and Bell JJ, at [39] summarised the notion of "institutional integrity" established by Kable and the cases following it in these terms:
"Those decisions have established propositions including the following:
1 A State legislature cannot confer upon a State court a function or power which substantially impairs its institutional integrity, and which is therefore incompatible with its role, under Ch III of the Constitution, as a repository of federal jurisdiction and as a part of the integrated Australian court system.
2 The term "institutional integrity" applied to a court refers to its possession of
the defining or essential characteristics of a court including the reality and appearance
of its independence and its impartiality.
3 It is also a defining characteristic of courts that they apply procedural
fairness and adhere as a general rule to the open court principle and give reasons for
their decisions.
4 A State legislature cannot, consistently with Ch III, enact a law which purports to abolish the Supreme Court of the State or excludes any class of official decision, made under a law of the State, from judicial review for jurisdictional error by the Supreme Court of the State.
5 Nor can a State legislature validly enact a law which would effect an impermissible executive intrusion into the processes or decisions of a court.
6 A State legislature cannot authorise the executive to enlist a court to implement decisions of the executive in a manner incompatible with the court's institutional integrity or which would confer on the court a function (judicial or otherwise) incompatible with the role of the court as a repository of federal jurisdiction.
7 A State legislature cannot enact a law conferring upon a judge of a State court
a non-judicial function which is substantially incompatible with the functions of the
court of which the judge is a member." [Citations removed]
50 The removal of the requirement for extended unanimity, even if properly characterised as a departure from the traditional judicial process, does not compromise the court's independence or impartiality. The court is not deprived of the ability to provide procedural fairness. The court will sit in public. The ability to appeal or seek judicial review is not removed. The court is not directed or required to implement a political decision or a government policy without following ordinary judicial processes. It is a conventional requirement that a judge make factual findings for the purpose of sentence without, subject to consistency with the verdict, speculating about what is to be inferred from the verdict. As Doyle JA explained in Henry, it is the case with other crimes that there may not be unanimity between jurors about the pathway to a verdict of guilt. His Honour referred to the crime of manslaughter. The same can be said of other crimes, not only as to the actus reus but also as to the required mental element.
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It may commonly be the case in the conventional judicial process that a judge may sentence on a factual basis which may not have been the basis of the verdict. Jurors may not agree about the pathway to guilt, provided there is unanimity or majority as to the verdict. Section 125A requires jury unanimity, or statutory majority, on the essential allegation that a defendant committed an unlawful sexual act against a young person on at least three occasions. The duty of a sentencing judge is to sentence in a manner which is consistent with the verdict. That the "judge's own assessment of the question of guilt" may differ from the verdict is immaterial. A judge will be required to give reasons for factual determinations relevant to sentence.
Conclusion
51 In my opinion the amendments to s 125A introduced by the FVR Act are not invalid by operation of the Kable principle. Following removal of the requirement for extended unanimity, to reach a verdict of guilt the jury must be satisfied beyond reasonable doubt, either unanimously or by majority, that at least three of the occasions identified by the prosecution have been proved. The jury need not agree on which three such occasions were proved. On return of a verdict of guilt the sentencing judge is, subject to consistency with the verdict, left to make the additional findings to determine the factual basis for imposing sentence. To the extent that these amendments result in a departure from the more traditional jury function and trial process, the institutional integrity of the court is not compromised. In my respectful view, the submission of the Solicitor-General that CAZ and Henry are not distinguishable on the constitutional point and ought to be followed should be accepted. However, I would have reached the same conclusion by application of principle and authority to the terms of the relevant provision. On the resumption of the trial of the accused the jury will be directed accordingly.
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