Chiro; Harma and Special Verdicts

By Sophie Coulson

On 13 September 2017, the High Court of Australia heard two appeals considering the operation of s 50(1) Criminal Law Consolidation Act 1935 (CLCA) These two appeals, Chiro v The Queen  and Hamra v The Queen, are considered in detail below.

The effect of the decisions of the High Court can be summarised as follows:

1. A judge should not request a jury to return a special verdict;
2. If the jury returns a general verdict of guilty, for the offence of “persistent sexual exploitation of a child” pursuant to section 50(1), the trial judge should question the jury to determine which acts of sexual exploitation they have found proven beyond a reasonable doubt; and
3. Section 50(1) requires a judge or jury to identify two or more acts, however proof of the offence does not require evidence which allows acts of sexual exploitation to be defined by reference to differentiating circumstances.

Marco Chiro v The Queen

This appeal concerns whether a judge is obliged to make further enquiries of a jury who has found a defendant guilty of the offence of “persistent sexual exploitation of a child” (PSE) in order to identify the two or more sexual acts which they found had been committed in order to sentence the offender.

The High Court held that a trial judge should not request the jury to return a special verdict but, if the jury returns a general verdict of guilty, the judge should request that the jury identify the underlying acts of sexual exploitation that were found to be proved unless it is otherwise apparent to the judge which acts of sexual exploitation the jury found to be proved.

History

Initially the appellant was charged with four separate sexual offences against the complainant. A jury convicted the appellant on one of those charges and were hung on the remaining three. The appellant lodged an appeal against the conviction and the SA Supreme Court sitting as the Court of Criminal Appeal (CCA) found that there had been a miscarriage of justice and that the verdict was unsafe. A re-trial was ordered.

On the first day of the re-trial, the Director of Public Prosecutions (DPP) laid a fresh charge pursuant to section 50(1) of the CLCA. This provision reads as follows:

An adult person who, over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age is guilty of an offence.

The charge in this case relied on more than six different sexual exploitation incidences.

The jury found the accused guilty of this offence by a majority verdict. The judge did not ask the jury questions in order to identify which two or more acts of sexual exploitation they were satisfied beyond a reasonable doubt had been committed. At sentence, the judge sentenced the appellant on the basis that he had committed all of the acts of sexual exploitation despite having given a direction to the jury that it would be sufficient to prove the offence under section 50(1) if they were satisfied that the appellant had kissed the complainant on more than one occasion. The judge rejected a submission for the appellant that he should be sentenced on the basis that the offence was made out only by the acts of kissing amounting to indecent assaults.

The appellant appealed the conviction and sentence to the CCA. The grounds of the appeal were:

1. The judge should have sought a special verdict from the jury so that the particular acts upon which the jury found guilt could be established and that, because that was not done, the resulting conviction was void for uncertainty;
2. The verdict was unreasonable; and
3. The sentence was manifestly excessive.

On appeal, the appellant argued that this was one of the few cases where it was necessary to ask questions of the jury once they had returned a guilty verdict. The appellant submitted that it was not improbable that the jury only found the appellant guilty of two acts beyond a reasonable doubt and that it was therefore necessary to clarify which acts they were satisfied of. Without asking questions it was impossible to say which acts were proven beyond a reasonable doubt.  It was fairly submitted that the appellant should not be punished on the basis of having committed any more of the alleged acts than the jury found to be proven.

The CCA (Vanstone J, Kelly J and David AJ agreeing) dismissed the appeal finding that:

1. The judge was correct to not take special verdict, as to have done so would have potentially led to confusion amongst the jury and detracted from its focus.
2. The evidence demonstrated that it was well open to the jury to find the appellant guilty and that the verdict was not unreasonable; and
3. The sentence was not manifestly excessive.

The CCA considered the appropriateness of asking the jury questions. They noted that the plurality in Cheung v The Queen had stated that there would be very few cases in which it would be appropriate or useful to ask a jury about the process of reasoning by which a verdict was reached. The Court found that this was not one of those cases.

Section 50(1) Criminal Law Consolidation Act 1935 (SA)

Paragraphs 4, 5, 6 and 7 of the High Court judgment outline section 50 of the CLCA as follows:

The sub-section prescribing the offence of persistent sexual exploitation of a child, s 50(1), requires only two acts of sexual exploitation separated by three or more days for the offence to be complete.

It provides:

An adult person who, over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age is guilty of an offence.

Maximum penalty:  Imprisonment for life.

The prescribed age is 18 years in the case of an accused who is in a position of authority in relation to the child; and 17 years in any other case.  A teacher is a person in a position of authority

Section 50(2) defines an “act of sexual exploitation” for the purposes of s 50(1) as follows:

A person commits an act of sexual exploitation of a child if the person commits an act in relation to the child of a kind that could, if it were able to be properly particularised, be the subject of a charge of a sexual offence.

Section 50(7) defines “sexual offence” by reference to other offence provisions contained in the CLCA, including in Pt 3, Div 11 (Rape and other sexual offences).  It was the prosecution case that the acts described in Particulars 1, 2, 3 and 5 each amounted to an indecent assault, contrary to s 56 of the CLCA, and the acts described in Particulars 4 and 6 amounted to unlawful sexual intercourse, contrary to s 49 of the CLCA. “

Particulars and outline of facts

The indictment provided the following particulars:

Marco Chiro between the 1st day of July 2008 and the 19th day of November 2011 at Rostrevor, over a period of not less than 3 days, committed more than one act of sexual exploitation of [V], a child under the prescribed age, and in relation to whom he was in a position of authority.

I note briefly that s50(1) of the CLCA does not require the same level of particularity which is demanded by the common law. See [6] – [9] of this High Court judgment. This issue was also considered in Hamra v The Queen (discussed below).

The acts comprising the persistent sexual exploitation in this case were:

1. kissing [V] on the lips, on more than one occasion,
2. touching [V]’s vagina, on more than one occasion,
3. touching [V]’s breasts, on more than one occasion,
4. inserting his finger into [V]’s vagina,
5. causing [V] to touch his penis, and
6. Inserting his penis into [V]’s mouth.

The facts of this case were succinctly outlined at [3] of the CCA judgment:

The appellant, Marco Chiro, was a teacher at the “middle campus” of Norwood Morialta High School during the years 2007 to 2012. The complainant, to whom I shall refer as “V”, was in a class given by the appellant in 2007 and 2008, and in 2009 she was supervised on a major project by the appellant. By 2010 and 2011 V had moved to the senior school campus, but she would attend at the middle school campus to obtain assistance from the appellant with her Italian lessons.

The prosecution alleged that conduct of a sexual nature commenced in 2008 when V was in Year 9, and continued until either 2010 or 2011. The complainant reported the conduct to police in about April 2012. The conduct commenced with kissing and became progressively more intimate.”

Appeal to High Court

The two grounds of appeal were that the CCA had erred in:

1. Failing to hold that the trial judge erred by failing to ask the jury the necessary questions to identify for the purposes of sentencing which of the alleged acts the jury found had been proven – which it was submitted rendered the verdict uncertain; and
2. Finding that in the absence of an answer by the jury to those questions, and in light of the direction to the jury that they were entitled to convict if satisfied only two kissing episodes occurred, it was open to the trial judge to sentence the appellant as if he were guilty of all the sexual offending alleged.

A majority (Kiefel CJ, Keane and Nettle JJ, and Bell J in a separate judgment) dismissed ground one, but upheld ground two. The matter was remitted back to the CCA for resentencing. Their Honours held in relation to the two grounds that:

1. While the trial judge was right not to direct the jury to bring in a special verdict, Kiefel CJ, Keane and Nettle JJ held that the judge should have exercised her discretion to ask the jury, after the general verdict was returned, to specify which of the alleged acts they agreed had been proved (Bell J noted judicial discretion would usually favour this in a trial for a s 50(1) offence). The judge could have also directed the jury before they retired that, inter alia, if their verdict was guilty, they would be asked to state which of the alleged acts they were unanimously agreed had been proved. Their Honours held that each of the underlying acts of sexual exploitation is part of the actus reus of this offence and it is for the jury alone to find the actus reus of the offence proved; and
2. In circumstances where the judge did not know which of the acts of sexual exploitation the jury agreed had been proved, the appellant should have been sentenced on the facts most favourable to him.

In summary, the majority held that a judge should not request the jury to return a special verdict but, if the jury returns a general verdict of guilty, the judge should request that the jury identify the underlying acts of sexual exploitation that were found to be proved unless it is otherwise apparent to the judge which acts the jury found to be proved (at [1]).

Extended unanimity

The majority also considered the issue of unanimity and confirmed that for this offence a jury must reach unanimous agreement (or, after four hours, must reach agreement by a requisite statutory majority) that the Crown has proved beyond reasonable doubt that the accused committed the same two or more underlying acts – known as an extended unanimity requirement ([19] – [24] and [59], [65]). The majority assumed that the jury had abided by such unanimity (see [24] and [59]) but Kiefel CJ, Keane and Nettle JJ stated at [24], that:

Because the judge declined to ask the jury which of the acts of sexual exploitation they had so found to be proved, there was and is no way of knowing which they were.

While this did not render the verdict uncertain (see [46] and [59]) the trial judge incorrectly sentenced the appellant as if all underlying acts had been committed (discussed further below).

Edelman J delivered a separate judgment. His Honour agreed with the majority that the verdict was not uncertain, but did not agree that the appellant should be re-sentenced. His Honour did not consider s 50 modified the common law approach to sentencing whereby a sentencing judge finds facts, provided that they are not inconsistent with the jury verdict, and any facts adverse to the offender are established beyond reasonable doubt.

The focus of this post is the majority judgment.

Special verdicts

Kiefel CJ, Keane and Nettle JJ noted that a special verdict of a jury is not merely answers to a judge’s questions. Rather, it is “the facts as found by the jury, and that the jury is in ignorance of how upon those facts the issue ought to be resolved and therefore prays the advice of the court.” (at [29]). The bench considered the decisions in Solomon and Triumph (1984) 6 Cr App R (S) 120 at 126. In these cases it was held that a special verdict is no longer possible and that the only verdicts a jury can give in a criminal trial are guilty or not guilty. I note however, that these decisions were heard before the Criminal Division of the Court of Appeal for England and Wales. Kiefel CJ, Keane and Nettle JJ contrasted those decisions with section 354(3) of the CLCA which provides that:

Where on the conviction of the appellant the jury has found a special verdict and the Full Court considers that a wrong conclusion has been arrived at by the court before which the appellant has been convicted on the effect of that verdict, the Full Court may, instead of allowing the appeal, order such conclusion to be recorded as appears to the Court to be in law required by the verdict and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law.

Their Honours considered at [31] that the provision contemplates that:

It is possible for a jury in a criminal case in South Australia to bring in a special verdict.  If so, it remains that it is for the jury to determine whether and when to exercise the privilege to do so.  It is not for a trial judge to require a jury to bring in a special verdict.

Their Honours held the the judge was right not to direct the jury to bring in a special verdict.

Separate questions

The majority held that where a jury has returned a guilty verdict of an offence of this kind, there is nothing in principle or practice to prevent a judge asking specific questions of the jury to determine the acts in which they have found to be committed.

Both the CCA and the High Court referred to the dissenting judgment of Justice Roden in Petroff (1980) 2 A Crim R 101, at 135 and outlined the reasons for his Honour’s reservations against asking questions of the jury.

The majority in the High Court at [37] and [64] – [65] acknowledged these concerns but held that they do not apply in the same way to a jury that returns a verdict of guilty under section 50(1) of the CLCA. In particular, Kiefel CJ, Keane and Nettle JJ said at [37]:

Inasmuch as the actus reus of the offence is comprised of discrete underlying acts of sexual exploitation that are defined by reference to sexual offences found in the CLCA, and inasmuch as the requirement of extended jury unanimity applies to each of those underlying acts of sexual exploitation, most of Roden J’s objections adopted by the New South Wales Court of Criminal Appeal in Isaacs are in this case irrelevant.

Their Honours addressed and rebutted the objections on pages 18 – 19 of the High Court decision. Bell J also rebutted the objections, via a slightly different reasoning process, at [65] – [67].

The Crown submitted against questions being asked of the jury and argued that giving this direction would wrongly convey to jury that they could not convict appellant unless agreed on all of the alleged acts as opposed to just two or more. At [49], Kiefel CJ, Keane and Nettle JJ rejected the submission on the basis that a judge would correctly direct a jury that:

[They] need not be satisfied of anything more than that the accused committed at least two of the alleged acts of sexual exploitation separated by the requisite period of time, but that they cannot find that the accused committed an alleged act of sexual exploitation unless they are agreed that the commission of that act has been proved beyond reasonable doubt, the jury will be made to understand, as they should, that they cannot find that the accused committed an offence against s 50(1) unless they are satisfied that he or she committed not less than two of the alleged acts of sexual exploitation.

Bell J also refuted the suggestion that the jury’s task would be pressurised or burdensome and noted that “our adversarial system of criminal justice is posited upon acceptance that jurors will understand and apply the trial judge’s directions” (at [67]).

At [67] Bell J also considered that following return of a verdict of guilty in a trial of s 50(1) offence, the exercise of discretion will usually favour asking the jury to identify the acts proved. Kiefel CJ, Keane and Nettle JJ went a little further, and held that this was a case in which, after the jury had given their verdict, the judge should have exercised her discretion to ask the jury to specify which of the acts were found to have been committed (at [46]).

Sentence

Kiefel CJ, Keane and Nettle JJ held that generally speaking a judge is not required to sentence on a view of the facts most favorable to an offender, citing Cheung v The Queen. A judge will assess the aggravating and mitigating factors of the offence to assess the appropriate sentence: Filippou v The Queen at 72.  Their Honours found that the situation in this kind of case differs.  Where an accused faces a charge of trafficking a drug over a period of time, or an offence of a continuing nature, the jury don’t need to be unanimous as to each of the particular acts. In contrast, in the offence before the court, they must be unanimous.

Kiefel CJ, Keane and Nettle JJ noted 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: R v Kidd, at 607. A jury cannot be compelled to explain the basis of their verdict and in the event that the judge cannot get them to identify which of the acts they find proven, then the offender must be sentenced on the facts most favourable to him or her.

Bell J also contrasted the factual situation in Cheung with the present case. Her Honour held that since the verdict signifies that the appellant engaged in at least two of the particularised acts, and no more, it would be inconsistent with the verdict to sentence the appellant on the basis he had committed all of the particularised acts (at [72]).

Their Honours were in agreement that the basis on which the appellant should have been sentenced was confined to the acts of indecent kissing in Particular 1 (at [53], [74]). To do otherwise would be contrary to De Simoni (see [44] and [72])

Stephen John Hamra v The Queen

This case considers the issue of whether, in PSE cases, the prosecution must prove features of the circumstances surrounding each act of sexual exploitation relied upon, so that each act can be separately identified.

The appellant argued that proof of the sexual offences involves proving the elements of those offences beyond a reasonable doubt and the capacity to identify and prove actual occasions on which each element of that offence occurred. The respondent submitted that the common law requirement for particularity has been abrogated for the purposes of proving an offence against 50(1) CLCA.

The High Court unanimously rejected the appeal. Their Honours found that while section 50(1) requires a judge or jury to identify two or more acts, proof of the offence does not require evidence which allows acts of sexual exploitation to be defined.

History

The initial trial was heard by a judge alone who held that there was no case to answer and the appellant was acquitted. He came to this conclusion on the basis that the nature of the allegations were generalised and lacked specificity. The trial judge held at [14] that the complainant had been unable to relate the alleged acts of sexual exploitation to any particular occasion, circumstance or event beyond “what typically or routinely or generally occurred”. It was therefore held that it was impossible to identify two or more acts as required by section 50(1).

The DPP appealed against the acquittal to the CCA and the appeal was allowed. The grounds of the appeal were that the CCA had erred:

1. In holding that the trial judge had erred in concluding that there was no case to answer because the complainant’s allegations were of a generalised nature such that it was not impossible to identify two or more proven sexual offences; and
2. In failing to address whether permission to appeal should be granted having regard to, among other things, the considerations relating to double jeopardy.

A majority of the CCA, Kourakis CJ with whom Kelly, Nicholson and Lovell JJ agreed, held that there was a case to answer. A retrial was ordered and the appellant by grant of special leave, appealed to the High Court.

Provision

Section 50(1) of the CLCA is outlined and discussed above. A more in depth analysis of subsections (2) and (4) is required in this case. Subsection 2 states that:

“For the purposes of this section, a person commits an act of sexual exploitation of a child if the person commits an act in relation to the child of a kind that could, if it were able to be properly particularised, be the subject of a charge of a sexual offence.”

Subsection 4 states that despite any other Act or rule of law, the following provisions apply in relation to the charging of a person on an indictment for an offence pursuant to section 50(1):

1. The information must allege with sufficient particularity the period during which the acts of allegedly occurred; and the alleged conduct comprising the acts of sexual exploitation;
2. The information must allege a course of conduct consisting of acts of sexual exploitation but need not allege particulars of each act with the degree of particularity that would be required if the act were charged as an offence under a different section of this Act; and
3. The person may, on the same information, be charged with other offences, provided that any sexual offence allegedly committed by the person in relation to the child who is the subject of the offence and during the period which the person is alleged to have committed the offence against this section, must be charged in the alternative.

Particulars and facts

Paragraph 4 of the High Court judgment outlines the particulars of the offence:

[The appellant] between the 30th day of October 1977 and the 1st day of November 1982 at Morphett Vale, and another place, committed more than one act of sexual exploitation of [B] a child under the prescribed age.

It is further alleged that the acts of sexual exploitation performed by [the appellant] upon [B] were, touching [B’s] genitals, placing his penis between [B’s] bottom, causing [B] to touch his penis and performing fellatio upon [B].”

The significance of 1 November 1982 is that it was the date when B turned 17 years old.

The case concerned historical sexual abuse by the appellant of a male complainant “B” between 1977 and 1982. B was between 12 and 17 years old at the time of the offences. At the time of trial B was 50 years old. B first met the appellant at a surprise birthday party for his mother when B was around 11 years old.  The appellant subsequently visited B’s home regularly and was considered part of the family. The appellant would sleep over at B’s house, sometimes on the couch and sometimes in B’s room which B and his brother shared.

The first occasion of sexual exploitation involved the appellant getting into bed with B and touching his genitals on the outside of his clothing. He was 12 or 13 at the time of the incident and was sleeping in the same room as his brother.

B’s evidence was that the touching became more frequent when he moved into another room at the age of 13 or 14. At this time, the appellant was sleeping over each weekend. The acts of sexual exploitation progressed from touching under B’s pyjamas to mutual fondling leading to ejaculation.

When B was 15 or 16, his family went on holidays to Fiji and the appellant looked after B. B’s evidence was that through his family’s 10-14 day trip, the sexual exploitation acts occurred every night. The acts were always touching under B’s pyjamas to mutual fondling leading to ejaculation, but on two occasions the appellant put his penis in B’s mouth.

B also said that he stayed at appellant’s house overnight on several occasions. On each occasion mutual touching leading to ejaculation occurred.

High Court decision

The appellant appealed with special leave to the High Court. The grounds were the same as those in the appeal to the CCA and were that the CCA erred in:

1. Holding that the trial judge had erred in concluding that there was no case to answer; and
2. Failing to address whether permission to appeal should be granted having regard to, inter alia, to considerations relating to double jeopardy.

The High Court rejected both grounds of the appeal. The court unanimously held that although s 50(1) requires a judge or jury to identify two or more acts, proof of the offence does not require evidence which allows acts of sexual exploitation to be defined by reference to differentiating circumstances. It is therefore sufficient if jury accepted that an act of sexual exploitation was committed every day over a two week period without any further differentiation of those occasions.

On the second ground of appeal, the High Court held that although the CCA did not expressly give reasons for why permission to appeal should be granted, it was clear that the issue was considered and decided. This ground of appeal is not considered in this post.

Particularisation

The unanimous majority held that the appellant’s submission, that the State must prove a distinct occasion constituting each alleged sexual offence, was based on an incorrect understanding of section 50(1). They held that section 50 ameliorates the requirement that the State must prove a distinct occasion constituting each alleged sexual offence.

The appellant referred to Johnson v Miller to support a submission that an accused:

Is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge.

The appellant directed the bench to decision of Evatt J at 497, who said that:

It is of the very essence of the administration of criminal justice that a defendant should, at the very outset of the trial, know what is the specific offence which is being alleged against him.

Gaudron and McHugh JJ in S v The Queen confirmed Johnson v Miller and said at 286:

By reason that the offences were neither particularized nor identified, the accused was effectively denied an opportunity to test the credit of the complainant by reference to surrounding circumstances such as would exist if the acts charged had been identified in relation to some more precise time or by reference to some other event or surrounding circumstance.

The High Court considered S v The Queen noting that the case predated s 50 of the CLCA.

The High Court referred to the Second Reading Speech of the Criminal Law Consolidation (Rape and Sexual Offences) Amendment Bill 2007 (SA), which introduced section 50, and noted that section 50 was “designed as a response to decisions such as S v The Queen to create a new, but single, offence that focused upon acts of sexual exploitation.”  (at [26]). The provision focuses on acts that comprise a course of conduct rather than a series of separately particularised offences. For example, it would be sufficient if the jury (or judge in a judge-alone trial) accepted that acts which could be the subject of a charge of a sexual offence occurred every night or weekend, over a period of two months without differentiation of the particular occasions of the offending (at [46]).

Conclusion

In conclusion, the cases of Chiro and Hamra now stand for the principles, in cases of this kind, that:

1. If the jury returns a general verdict of guilty, the judge should question the jury to determine which acts of sexual exploitation they have found proven beyond a reasonable doubt; and
2. Section 50(1) requires a judge or jury to identify two or more acts, however proof of the offence does not require evidence which allows acts of sexual exploitation to be defined by reference to differentiating circumstances.