The High Court has dismissed an appeal against a decision of the Supreme Court of South Australia on the offence of persistent sexual exploitation of a child. The appellant was tried under s 50 of the Criminal Law Consolidation Act 1935 (SA) 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. After a trial by judge alone, the trial judge held that the general nature of the complainant’s evidence meant that it was not possible to identify two or more specific proven sexual offences, and thus there was no case to answer. The SASCFC allowed a Crown appeal against that decision and remitted the matter for retrial. Before the High Court, the appellant contended that the SASCFC erred in concluding there was a case to answer, and erred in not addressing the appellant’s argument that the Crown should not have been granted permission to appeal owing to the Court’s failure to consider the appellant’s arguments on double jeopardy concerns.
The High Court (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ) unanimously dismissed both arguments and the appeal. The Court noted that the appellant’s contention on the operation of s 50 was that the provision did not alter or ameliorate the requirement that the prosecution must prove each ‘distinct occasion’ or ‘distinct transaction’ constituting the alleged sexual offences, and that consequently the evidence must be capable of being similarly particularised (at ). After reviewing the legislative history of s 50 and its predecessor (at ff), the Court stated that the difficulty with the appellant’s submission was that the plain terms of s 50(4) required particularity in the information charging a person with an offence under s 50(1):
It modifies the common law by providing that although the information must allege a course of conduct consisting of acts of sexual exploitation it need not ‘identify particular acts of sexual exploitation or the occasions on which, places at which or order in which acts of sexual exploitation occurred’ (s 50(4)(b)(ii)). The sub-section requires the jury to find the same two or more acts committed over a period of three or more days in order for the accused to be convicted but, provided that two or more distinct acts can be identified, it does not require the occasions of those acts to be particularised other than as to the period of the acts and the conduct constituting the acts. In this respect, s 50(4)(b)(ii) has the same effect as its predecessor provision, which, in s 74(4), did not require particulars to ‘differentiate the circumstances of commission of each offence’.
The Court then illustrated this point with an example drawn from the evidence in the present case: that a complainant had given evidence that an act of sexual exploitation was committed every day over a two week period, despite being a general statement, would not, contrary to the appellant’s contention, preclude a judge or jury from deducing the simple conclusion that more than two acts had occurred (at ). Turning to the application of s 50 to the facts in this case, the Court held that the evidence of complainant B, ‘taken at its highest, demonstrates that there was a case to answer’ (at ), and, examining the content of B’s evidence in detail, rejected each of the appellant’s three arguments on there being no case to answer (see –).
The Court then rejected the appellant’s second ground of appeal, holding that while Kourakis CJ did not give specific reasons for why permission to appeal should be granted, or specifically mention considerations raised by the appellant, a consideration of his Honour’s reasons show that the issue was ‘considered and decided’, namely in noting that the DPP sought that permission, that orders made included granting that application, and in considering the possibility of an intermediate position of remitting the matter to the trial judge (see ). Further and more generally, the reason permission to appeal was granted is indicated by the circumstances of the case and the conclusions reached by the SASCFC; namely that the appeal would largely focus on a challenge to R v Johnson  SASCFC 170, on which the trial judge was found to have relied, in error (see details at ). Finally, the Court noted that it is not necessary in every case to refer to every factor holding weight in a decision and that there is no rigid formula for considerations warranting mention (at ). Finally, the Court made several points on the respondent’s notice of contention, which argued that the SASCFC erred in failing to find that R v Johnson was wrongly decided, while noting that resolving that notice was unnecessary in light of the Court’s earlier conclusions (see –).
|High Court Judgment|| HCA 37||13 September 2017|
|Related Case||Chiro v The Queen
|High Court Documents||Hamra|
|Full Court Hearings|| HCATrans 134||21 June 2017|
| HCATrans 133||20 June 2017|
|Special Leave Hearing|| HCATrans 77||7 April 2017|
|Appeal from SASCFC|| SASCFC 130||8 December 2016|