Marco Chiro(Appellant) v The Queen

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Kiefel CJ,Keane,Nettle JJ.,Bell J.,Edelman J.
• Judgment Date: 13 September 2017
• Neutral Citation: [2017] HCA 37
• Docket Number: A9/2017
• Date: 13 September 2017

[2017] HCA 37

HIGH COURT OF AUSTRALIA

Kiefel CJ, Bell, Keane, Nettle AND Edelman JJ

A9/2017

Marco Chiro

Appellant

and

The Queen

Respondent

Chiro

and

The Queen

Representation

M E Shaw QC with B J Doyle for the appellant (instructed by Wallmans Lawyers)

C D Bleby SC, Solicitor-General for the State of South Australia with B Lodge for the respondent (instructed by Director of Public Prosecutions (SA))

Criminal Law Consolidation Act 1935 (SA), s 50.

Criminal law — Offence of ‘[p]ersistent sexual exploitation of a child’ — Criminal Law Consolidation Act 1935 (SA), s 50 — Where offence comprised of two or more acts of sexual exploitation separated by not less than three days — Where jury required to be unanimous (or agreed by statutory majority) as to same two or more acts of sexual exploitation — Where alleged acts of sexual exploitation ranged from kissing in circumstances of indecency to inserting penis into complainant's mouth — Where jury returned general verdict of guilty by statutory majority — Where not known which alleged acts of sexual exploitation jury agreed had been proved by prosecution — Whether conviction uncertain — Whether judge should have requested special verdict — Whether, after general verdict returned, judge should have asked questions of jury to identify acts of sexual exploitation found to be proved — Whether appellant should have been sentenced on view of facts most favourable to appellant in circumstances where factual basis of jury's verdict unknown.

Words and phrases — ‘acts of sexual exploitation’, ‘actus reus’, ‘course of conduct offence’, ‘extended unanimity’, ‘general verdict’, ‘jury directions’, ‘persistent sexual exploitation of a child’, ‘special questions’, ‘special verdicts’.

ORDER

• 1. Appeal allowed in part.

• 2. Set aside the order of the Court of Criminal Appeal of the Supreme Court of South Australia made on 30 September 2015 in SCCRM-15–232, and in its place order that the appeal against sentence be allowed and the sentence be set aside.

• 3. Remit the proceeding to the Court of Criminal Appeal of the Supreme Court of South Australia for the appellant to be resentenced in accordance with the reasons of this Court.

• 4. Appeal otherwise dismissed.

1 Kiefel CJ, Keane AND Nettle JJ. The principal question for decision in this appeal is whether, where an accused is tried before a judge and jury on a count of ‘[p]ersistent sexual exploitation of a child’ contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’), the judge should request that the jury return a special verdict or, if the jury returns a general verdict of guilty of the offence, whether the judge should question the jury to identify the underlying acts of ‘sexual exploitation’ which the jury found to be proved. For the reasons which follow, in such circumstances, 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 of sexual exploitation the jury found to be proved.

The facts

2 The appellant was charged with an offence of persistent sexual exploitation of a child under s 50(1) of the CLCA. The period to which the charge related was 1 July 2008 to 19 November 2011. The appellant is a former high school teacher. From 2000, he taught at the middle-school campus of a high school in Adelaide. The complainant was a student in a class taught by the appellant and was also supervised by the appellant in the completion of a major project. Although the complainant moved to the senior-school campus of the high school in the latter part of the period to which the s 50(1) charge relates, she continued to attend at the middle-school campus ostensibly to obtain assistance from the appellant with respect to her Italian studies. The prosecution alleged that conduct of a sexual nature commenced in 2008, when the complainant was in Year 9. The conduct was alleged to have commenced with kissing, first with a ‘quick peck on the lips’ and subsequently a ‘longer, open-mouthed kiss’. The conduct was said to have become more intimate. It was alleged to have progressed to a point where the appellant digitally penetrated the complainant and she masturbated and fellated him.

3 The appellant was initially charged with four separate offences, contrary to ss 49(5) (unlawful sexual intercourse), 56 (aggravated indecent assault) and 58 (procuring an act of gross indecency) of the CLCA. He was convicted by a majority verdict on one count of aggravated indecent assault but his appeal from that conviction was allowe 1. At the retrial, the Director of Public Prosecutions filed a fresh information charging the appellant with one offence of persistent sexual exploitation of a child contrary to s 50(1) of the CLCA. The information

on which the retrial proceeded particularised the acts comprising the offence as follows:

• ‘1. kissing [the complainant] on the lips, on more than one occasion,

• 2. touching [the complainant's] vagina, on more than one occasion,

• 3. touching [the complainant's] breasts, on more than one occasion,

• 4. inserting his finger into [the complainant's] vagina,

• 5. causing [the complainant] to touch his penis, and

• 6. inserting his penis into [the complainant's] mouth.’

Section 50 of the CLCA

4 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.’

5 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 2. A teacher is a person in a position of authority 3.

6 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.’

7 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.

8 An information charging an offence under s 50(1) is not required to contain the level of particularity which is demanded by the common law. Section 50(4) sets out the particulars required as follows:

‘Despite any other Act or rule of law, the following provisions apply in relation to the charging of a person on an information for an offence against this section:

• (a) subject to this subsection, the information must allege with sufficient particularity?

  • (i) the period during which the acts of sexual exploitation allegedly occurred; and

  • (ii) the alleged conduct comprising the acts of sexual exploitation;

• (b) the information must allege a course of conduct consisting of acts of sexual exploitation but need not?

  • (i) 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; or

  • (ii) identify particular acts of sexual exploitation or the occasions on which, places at which or order in which acts of sexual exploitation occurred;

• (c) the person may, on the same information, be charged with other offences, provided that any sexual offence allegedly committed by the person?

  • (i) in relation to the child who is allegedly the subject of the offence against this section; and

  • (ii) during the period during which the person is alleged to have committed the offence against this section,

must be charged in the alternative.’

9 Section 50(5) provides that a person who has been tried and convicted or acquitted of an offence against s 50(1) may not be convicted of a sexual offence against the same child alleged to have been committed during the period during which the person was alleged to have committed the offence of persistent sexual exploitation of the child.

The directions and verdict

10 In the course of her summing up to the jury, the trial judge (Judge Davison) twice directed the members of the jury that it would be sufficient to prove the offence under s 50(1) if they were satisfied to the requisite standard that the appellant had kissed the complainant on more than one occasion within the relevant period in circumstances of indecency. Those directions occurred in the context of what her Honour described as the ‘third element’ of the offence, which she explained required that the prosecution prove beyond reasonable doubt that two or more of the acts particularised in the information as acts of sexual exploitation took place over a period of not less than three days.

11 The judge commenced her discussion of the evidence by reference to the alleged acts of kissing. She then said to the jury:

‘If you were satisfied that the [appellant] had kissed [the complainant] on more than one occasion separated by three days, and that these kisses amounted to indecent assaults as I have described to you, that is, assaults occurring in circumstances of indecency, having some sexual connotation, then that alone would be sufficient to prove...