The High Court has partly allowed an appeal against a decision of the Full Court of the Supreme Court of South Australia on special and general jury verdicts on the offence of persistent sexual exploitation of a child. Section 50(1) of the Criminal Law Consolidation Act 1935 (SA) prescribes the offence of ‘persistent sexual exploitation of a child’, defined as committing more than one act of sexual exploitation over a period of not less than three days, where an act of sexual exploitation means an act that could be subject of a sexual offence charge. The appellant was convicted under s 50 after the prosecutor gave the jury a list of six alleged abusive acts and asked the jury to convict if it was unanimous that at least two of these acts occurred over a two year period, and the trial judge sentenced him to ten years imprisonment with a non-parole period of six years. The SASCFC rejected the appellant’s contention that the trial judge erred in not taking a special verdict or asking questions of the jury after they returned the general verdict of guilt; specifically, to state which incidents they found had been proved, and in the absence of such information the trial judge should have sentenced him only for the two least serious acts alleged.

The High Court allowed the appeal against the sentence by majority, and unanimously dismissed the appeal against conviction. The plurality (Kiefel CJ, Keane and Nettle JJ) held that a trial judge in a s 50 case should not request the jury return a special verdict, but where a jury returns a general verdict of guilty and it is not clear which acts of sexual exploitation the jury found proved, the trial judge should request that the jury identify those acts. Section 354 of the CLCA contemplates the possibility of a South Australian jury bringing in a special verdict, but that is a privilege that only the jury itself may choose to exercise; ‘It is not for a trial judge to require a jury to bring in a special verdict’ (at [31], and see [28]ff). But the plurality noted there is nothing to prevent a trial judge asking the jury a specific question to ascertain the basis of a guilty verdict (at [32]). After noting and considering a range of ‘objections’ to the practice of asking a jury to identify its reasoning formulated in earlier case law on murder and manslaughter (see [34]–[36]), the plurality noted that these concerns are not relevant to s 50 cases, largely because the actus reus of that offence is composed of discrete underlying acts in turn defined by other sexual offences in the act, and because jury unanimity applies to each of those acts ([37] and see specific explorations of the objections at [38]–[42]). The plurality stated, at [43], that:

It is therefore no answer to say, as the Crown contended in this case, that, in the absence of questions being asked of the jury, a sentencing judge’s consideration of the acts of sexual exploitation that might have comprised the actus reus of the offence as found will not be inconsistent with the jury’s verdict because it is not known which of the alleged acts of sexual exploitation formed the basis of the verdict. To repeat, it is for the jury alone, not the judge, to find the acts which constitute the actus reus. Judges dealing with charges under s 50(1) should bear that in mind when exercising their discretion as to whether to ask questions of the jury designed to identify which of the underlying acts of sexual exploitation they have found to be proved.

The plurality also held that while s 50 is a single offence requiring only more than two of multiple alleged acts having been committed, on conviction the sentence to be imposed must be determined ‘by reference to each sexual offence which the alleged acts of sexual exploitation would constitute if charged separately, as if the accused had been convicted of each of those offences’ (at [44]).

Turning to the present verdict, the plurality reiterated that the trial judge should have exercised her discretion to ask the jury to specify which acts had been proved (at [46]) and noted that it would have been appropriate to direct the jury, before they retired to consider their verdict, that if they returned a guilty verdict they would be asked to state which acts they had unanimously agreed had been proved (at [47]). The plurality rejected the Crown’s arguments that this requirement would or could make the jury wrongly think that they needed to be agreed on all alleged acts (see [48]), noting that ‘there is no reason to suppose that, by the judge then telling the jury that if they return a verdict of guilty of the offence charged they will be asked to state which of the alleged acts of sexual exploitation they are agreed have been proved, the jury would be caused to think that they could not convict the accused of the offence charged without finding that more than two of the alleged acts of sexual exploitation have been committed.’ (at [49], and see the rejection of a further Crown argument on possible injustice at [50]–[51]).

Finally, turning to consider the sentence in this case, the plurality held that because the judge here did not ascertain which acts the jury agreed had been proved, the appellant should have been sentenced on the view of the facts most favourable to the appellant, rather than as if he had been found to have committed all of the alleged acts of exploitation, as occurred here: ‘The sentence imposed was therefore not only infected by error, but also manifestly excessive’ (at [53]). The plurality dismissed the appeal against conviction, but allowed the appeal against sentence, and ordered that the matter of sentencing be remitted to the SASCFC for resentencing (at [54]).

Bell J agreed with the orders of the plurality, and agreed with their reasoning that the jury’s non-disclosure of which acts were proved did not render the verdict uncertain (at [59]) and that the trial judge did not err in not inviting a special verdict from the jury (at [60]). Bell J also explored the discussion over the wisdom of a trial judge questioning the jury about the factual basis of its verdict (see at [62]ff) and also noted that these concerns were not relevant to s 50 trials in light of the particular requirements of that offence (at [65]). Bell J also rejected the respondent’s argument that questioning the jury might distract it from its function, noting that the adversarial criminal justice system is ‘posited upon acceptance that jurors will understand and apply the trial judge’s directions’, and that there is no reason to think a properly direct jury would be confused or see difficulty in answering questions about its verdict (at [67]).

Turning to the sentencing question, Bell J noted that while the SASCFC correctly identified the principle that the trial judge must sentence the appellant on the facts proved, provided those findings were not inconsistent with the verdict, here the verdict only required at least two of the acts, rather than all of them: ‘To sentence the appellant on the basis that he committed all of the particularised acts upon which issue was joined is to deprive the requirement of consistency with the verdict of practical content’ (at [71]). Consequently, Bell J held that because the jury was directed that guilt would be established on proof of two of the least serious indecencies, and because the jury was not asked to identify the acts of sexual exploitation that it had found were proved, the trial judge was constrained to sentence the appellant on the basis that the appellant’s culpability was confined only to those least serious indecent acts (at [74]).

Edelman J would have dismissed the appeal in its entirety. Rejecting the appellant’s contention that he be sentenced on the basis of the least serious acts only, Edelman J held that at common law the sentencing judge was not required to ask any special questions about the jury’s verdict, and the jury would not be required to answer those questions (at [82]). Sentencing judges have a general ability to find facts (see [83]ff), and that ability has not been modified or displaced by the introduction of s 50 (see [93]ff), nor does it require the judge to sentence the offender on the basis ‘most favourable’ to him or her (see the four consequences of that approach, explored at [109]ff): ‘The sentencing judge was not required to disregard numerous acts of sexual exploitation. That disregard would be contrary to her findings, which (i) were made beyond reasonable doubt, and (ii) were not inconsistent with the jury verdict.’: at [125].