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
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.
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 allowed. 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
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.
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."
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
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.
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 this element of the offence."
The judge thereafter pointed out that there was other conduct alleged, and her Honour proceeded to discuss the evidence relating to the other particularised acts. Towards the end of her discussion of the third element, her Honour explained that:
"In order to be satisfied of this element, you must be satisfied that two or more acts contained within the particulars 1-6 have occurred and be satisfied of that beyond reasonable doubt. It may be that you are satisfied that there was an act of fellatio and an act of kissing on one or more occasions. If these two events were separated by three days and if you are satisfied that the act of kissing amounted to an act of the indecent assault and the act of fellatio the offence of unlawful sexual intercourse, then this element would be proven.
Alternatively, you may be satisfied that he kissed her in a way that amounted to an indecent assault on two or more occasions separated by three days and that would suffice for proof of this element. What I am trying to illustrate is that it could be that you are all satisfied that he kissed her on more than one occasion in circumstances of indecency or that he kissed her on one occasion and caused her to touch his penis, or kissed her on one occasion and inserted his penis into her mouth. Any combination will suffice as long as you are all agreed on which acts constitute this element."
In the second day of deliberations, the jury asked a question of the judge. The question was not recorded, but there is no dispute that the jury enquired whether they would be asked for a verdict on indecent assault and a verdict on unlawful sexual intercourse. When the judge then raised the issue with counsel, counsel for the appellant stated that, if the jury returned a verdict of guilty, she would ask for a special verdict. The judge responded that no special verdicts would be taken. Her Honour stated that the South Australian Court of Criminal Appeal in the case of R v N, SH had said that special verdicts should not be taken in relation to a charge under s 50(1) of the CLCA. The jury were thereafter directed to the effect that "there is one charge before this court, that is persistent sexual exploitation of a child. That's what you have to decide in this matter." The jury returned a verdict of guilty.
Sentencing
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. Her Honour concluded that the appellant must be sentenced on the basis of those facts of which she was satisfied beyond reasonable doubt and which were consistent with the verdict of the jury. Her Honour stated that "[t]he very nature of the offence of persistent sexual exploitation of a child means that there has been a course of conduct of sexual abuse that has occurred over a period of time involving a range of conduct".
The judge stated that she accepted the evidence of the complainant beyond reasonable doubt, rejected the appellant's denials of the alleged conduct, and considered that the appellant should be sentenced on the basis that he had committed each of the acts particularised in the information. Her Honour observed that the appellant's offending involved a range of behaviours including offences of unlawful sexual intercourse involving fellatio and digital penetration. On that basis, her Honour identified the starting point as a sentence of 10 years' imprisonment and said that she saw no reason to reduce that term. A non-parole period of six years was set.
Proceedings before the Court of Criminal Appeal
The Court of Criminal Appeal (Vanstone J, Kelly J and David AJ agreeing) dismissed the appellant's appeal against conviction and appeal against sentence. The Court rejected the appellant's contention that the trial judge had been in error in not taking a special verdict or asking questions of the jury after the general verdict was returned. The Court applied what it considered had been said by the Court of Criminal Appeal of the Supreme Court of New South Wales in R v Isaacs and by this Court in Cheung v The Queen as to the considerations that militate against asking "special questions" of a jury to ascertain the factual basis of a verdict. Those considerations included:
"the fact that foreshadowing a later request to be provided with the basis of the verdict might distract the jury from its task of seeking unanimity on the general verdict and might provoke unnecessary confusion and disagreement; the answers might be of themselves uncertain; in a case where a particular verdict, such as manslaughter, might be reached in different ways, different jurors might have reached the result via those different avenues; the jury might be invited to make a decision upon which there had been no thorough address by counsel; and the judge might be embarrassed if he or she did not agree with the jury's answer."
The Court of Criminal Appeal noted that the plurality in Cheung 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. Their Honours noted, too, that the Court of Criminal Appeal was critical of the trial judge in R v N, SH for taking a special verdict after a trial on a charge against s 50(1) of the CLCA. The Court concluded that there was no need for a special verdict in this case. In their Honours' view, the task of sentencing was peculiarly that of the judge: it was for the judge to sentence the appellant on the basis of such facts as she found to be proved "so long as they were not inconsistent with the verdict of the jury". In their Honours' opinion, the situation facing a sentencing judge in relation to the offence of persistent sexual exploitation of a child under s 50(1) is little, if at all, different from the situation which faces a sentencing judge upon the return of a verdict of guilty of manslaughter in circumstances where multiple possible bases for the verdict were left to the jury.
The Court of Criminal Appeal also rejected the appellant's appeal against sentence on the ground that the sentence imposed was manifestly excessive. In reaching that conclusion, the Court had regard to the judge's findings that each of the acts particularised was proved beyond reasonable doubt and, on that basis, it was held that the sentence reflected the range of conduct committed by the appellant, as a person in a position of trust.
Actus reus of the offence and the extended unanimity requirement
As the South Australian Court of Criminal Appeal held in R v Little, applying this Court's decision in KBT v The Queen, because s 50(1) defines the offence of persistent sexual exploitation of a child to be constituted of underlying acts of sexual exploitation, in order to convict an accused of an offence against s 50(1) 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 of sexual exploitation separated by not less than three days. That requirement was appropriately described by the Court in Little as a requirement for extended unanimity.
In KBT, this Court was concerned with an offence against s 229B(1) of the Criminal Code (Q) of maintaining "an unlawful relationship of a sexual nature with a child under the age of 16 years". Section 229B(1A) provided that a person was not to be convicted of an offence against s 229B(1) unless it was shown that the offender had, during the period in 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" and evidence of the doing of any such act was "admissible and probative of the maintenance of the relationship notwithstanding that the evidence [did] not disclose the dates or the exact circumstances of those occasions". Hence, Brennan CJ, Toohey, Gaudron and Gummow JJ concluded:
"The offence created by s 229B(1) is described in that sub-section in terms of a course of conduct and, to that extent, may be compared with offences like trafficking in drugs or keeping a disorderly house. In the case of each of those latter offences, the actus reus is the course of conduct which the offence describes. However, an examination of sub‑s (1A) makes it plain that that is not the case with the offence created by s 229B(1). Rather, it is clear from the terms of sub-s (1A) 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 or more occasions. Once it is appreciated that the actus reus of the offence is as specified in sub-s (1A) rather than maintaining an unlawful sexual relationship, it follows, as was held by the Court of Appeal, that a person cannot be convicted under s 229B(1) unless the jury is agreed as to the commission of the same three or more illegal acts."
Their Honours added that:
"it is convenient to note one other matter that arises out of the identification of the actus reus of the offence created by s 229B(1). As already indicated, sub-s (1A) of s 229B requires the doing of 'an act [which] constitute[s] an offence of a sexual nature … on 3 or more occasions', albeit that it does not require proof of 'the dates or the exact circumstances of [the] occasions' on which the acts were committed. The sub-section's dispensation with respect to proof applies only to the dates and circumstances relating to the occasions on which the acts were committed. It does not detract from the need to prove the actual commission of acts which constitute offences of a sexual nature.
... [E]vidence of a general course of sexual misconduct or of a general pattern of sexual misbehaviour is not necessarily evidence of the doing of 'an act defined to constitute an offence of a sexual nature … on 3 or more occasions' for the purposes of s 229B(1A) ... [I]f the prosecution evidence in support of a charge under s 229B(1) is simply evidence of a general course of sexual misconduct or of a general pattern of sexual misbehaviour, it is difficult to see that a jury could ever be satisfied as to the commission of the same three sexual acts as required by s 229B(1A)."
In those respects, the offence of maintaining an unlawful sexual relationship with a child with which this Court was concerned in KBT is to be contrasted with the kind of offence prescribed by s 4(1) of the Protection from Harassment Act 1997 (UK), which provides as follows:
"A person whose course of conduct causes another to fear, on at least two occasions, that violence will be used against him is guilty of an offence if he knows or ought to know that his course of conduct will cause the other so to fear on each of those occasions."
The latter is truly a "course of conduct" offence akin to, for instance, an offence of unlawful stalking contrary to s 21A of the Crimes Act 1958 (Vic). With offences of that kind, unparticularised evidence of an accused's conduct may be relevant and admissible as establishing a connection between various acts sufficient to amount to a "course of conduct" and there is no need to show that the individual acts which comprise the course of conduct are in themselves unlawful or constitute underlying offences. By contrast, the offence at issue in KBT was not a course of conduct offence properly so called, but one comprised of discrete underlying offences, more similar to the offence of unlawful stalking contrary to Ch 33A of the Criminal Code (Q), and, therefore, was an offence that required unanimity by the jury as to each of the underlying offences found to have been proved.
In Little, the Court of Criminal Appeal reasoned that the same approach that this Court applied to s 229B(1) in KBT applies to s 50(1) of the CLCA, and thus that where an accused is tried on a charge under s 50(1) it is an error for the trial judge to fail to direct the jury that, in order to find the accused guilty of the offence charged, they must be agreed as to the commission of the same two or more acts of sexual exploitation separated by not less than three days. In this case, that was not disputed.
Here, the trial judge directed the jury with respect to extended unanimity, and so it may 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. But, 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. As has been recorded, her Honour took the view, consistently with what she perceived to be this Court's reasoning in Cheung, that it was her task for the purposes of sentencing to find the two or more offences that had been proved beyond reasonable doubt; and, on the basis of a very brief recitation of acceptance of the complainant's evidence as establishing guilt beyond reasonable doubt, the judge stated that she found that the appellant had committed all of the acts of sexual exploitation alleged. The appellant was sentenced accordingly.
The appellant's contentions
The appellant did not suggest that the plurality in Cheung was wrong to observe that there will be "very few cases" in which it is useful to ask questions of a jury as to the process of reasoning by which a verdict was reached. But the appellant contended, in view of the peculiar nature of the offence prescribed by s 50(1) an offence comprised of not less than two acts of sexual exploitation separated by not less than three days and because of the requirement of extended unanimity in respect of the underlying acts of sexual exploitation, that this case was one of the few cases in which it was necessary that the judge exercise the discretion to ask questions of the jury. More particularly, given the jury were directed that they need find no more than that the appellant committed two of the alleged acts of sexual exploitation, it was not the least improbable that the jury considered and found no more than that the appellant committed the two least serious acts of sexual exploitation alleged. It was, therefore, said to be necessary for the judge to take a special verdict, or at least to ask questions of the jury, to ascertain which of the underlying acts of sexual exploitation the jury found proved. The judge's refusal to do so had the result that it was impossible to say which of the alleged acts of sexual exploitation the jury had found to be proved and it followed, in the appellant's contention, that the verdict was uncertain and should be set aside.
Alternatively, it was submitted, inasmuch as justice required that the appellant not be punished on the basis of having committed any more of the alleged acts of sexual exploitation than the jury found to be proved, it was incumbent on the judge to ascertain which they were. But, as a result of the judge's refusal to take a special verdict or to ask questions of the jury, it was and is not known which of those offences the jury found to be proved. Consequently, there was a real chance that the appellant was sentenced on the basis of having committed a greater number of and more serious acts of sexual exploitation than the jury were satisfied were proved beyond reasonable doubt. It followed, it was contended, that the sentence should be quashed and the appellant should be resentenced on the basis of having committed no more than the two least serious alleged acts of sexual exploitation, which, in this case, were two offences of indecent assault constituted by kissing the complainant in circumstances of indecency.
The Crown's contentions
The Crown contended to the contrary that there was nothing uncertain about the jury's verdict and no basis for the taking of a special verdict. In the Crown's submission, it was clear from the verdict of guilty that the jury had found that not less than two of the alleged acts of sexual exploitation, separated by not less than three days, had been proved beyond reasonable doubt, and, on that basis, that the elements of the offence prescribed by s 50(1) had been proved beyond reasonable doubt. Nor was there any need or justification for the purposes of sentencing for the judge to ask the jury to identify which of the alleged acts of sexual exploitation they found to be proved. Rather, it was contended, just as in any other case where it cannot be determined from a verdict whether a jury has found one way or the other as to facts that may be pertinent to sentencing, it was correct for the judge to find those facts herself, in accordance with Cheung, on a basis not inconsistent with the verdict.
Special verdicts
In Cunningham v Ryan, Isaacs J stated that "in strict law apart from any statutory provision a jury is entitled to choose in every case, civil or criminal, whether it will give a general or a special verdict, so long as it is intelligible". As was later noticed by O'Bryan J, however, in Russell v Railways Commissioners (Vic), it may be that Isaacs J was using the expression "special verdict" as equivalent to a jury's answers to questions asked by the judge. Strictly speaking, mere answers to questions are not a verdict at all. Inasmuch as the trial judge and the Court of Criminal Appeal in this case spoke in terms of a special verdict, it assists to bear that distinction in mind.
In a civil case, it is the jury's privilege to return a special verdict if in doubt as to a question of law, which is then left to the court to determine. The privilege was first conferred on juries in 1285 to alleviate the possibility of attaint for the falsity of a general verdict. The same privilege was also accorded to criminal juries. When formally drawn up, a special verdict should state 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. Isaacs J in Cunningham considered that it did not follow from a jury's entitlement to give a special verdict that the jury should be informed of that option. Not infrequently, in civil cases, the parties may and do agree that the jury be directed to answer specific questions. But the jury retains the right to bring in a general verdict. Thus, as Dixon J noted in McDonnell & East Ltd v McGregor, even where the parties are agreed as to specific questions, the proper course is to obtain a general verdict by direction in accordance with the jury's answers to the questions unless the parties are agreed that there is no objection to forgoing that formality.
In Solomon and Triumph, the Criminal Division of the Court of Appeal for England and Wales held that it is no longer possible for a jury in a criminal case to bring in a special verdict strictly so called: the only verdicts open to a jury in a criminal trial are general verdicts of guilty or not guilty of the offence charged. But it is to be observed that s 354(3) of the CLCA 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."
That 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.
Separate questions
By contrast, where a jury has returned a general verdict of guilty of an offence of persistent sexual exploitation of a child, there is nothing in principle, or necessarily in practice, to prevent the trial judge asking the jury specific questions to ascertain the basis for the verdict. As Stephen J observed in Veen v The Queen, in cases where an accused had been tried for murder and the jury returned a general verdict of guilty of manslaughter, it was the practice in England from at least 1887 for trial judges to ask specific questions of juries in order to determine the reason for their verdicts. The same applied in Queensland. And although a trial judge's power so to question the jury is undoubtedly discretionary, Stephen J considered that ordinarily in such cases the discretion should be exercised in favour of asking questions.
In Isaacs, the New South Wales Court of Criminal Appeal stated to the contrary that, although the power to question a jury as to the basis on which it returned a verdict of manslaughter had long been acknowledged, there was "disagreement" as to the wisdom of the practice. To characterise the then present state of authority as one of "disagreement" was, however, something of an exaggeration. In Petroff, a case that is notable as much for its early recognition of the propriety of providing juries with written directions as for its recognition of the rectitude of a sentencing judge asking a jury questions to ascertain the basis on which it found an accused to be guilty of manslaughter, Nagle CJ at CL, with whom Street CJ agreed, held that it was both permissible and appropriate for a trial judge to make such enquiries of a jury. Nagle CJ at CL stated the position clearly as follows:
"[I]t is submitted that as the question of the proper sentence to impose and the facts on which this should be based are matters for the trial judge it is wrong to seek any guidance from a jury. I cannot agree with this submission as the practice both here and in England for some years has been that juries have been asked to give the reasons for the verdict at which they arrive. But it is said that it is advisable if reasons are sought that they should be informed that they need not comply with the request. It is only necessary to refer to the judgment of Stephen J in Veen and the cases therein cited. Other illustrations of the practice are to be found in Storey [1931] NZLR 417, at p 439; and Curry [1969] NZLR 193, at p 208."
Roden J dissented for reasons which his Honour stated thus:
"This requirement of the jury that they answer the manslaughter questions separately, and the terms in which the requirement was made, seem to be open to a number of objections:
1. The requirement called for a unanimity as to grounds, which the law does not require; and could, as suggested above, have led to an inappropriate verdict, or an inappropriate failure to return a verdict.
2. It added needlessly to what was already a difficult and complex task for the jury.
3. It is contrary to the principle that the jury's verdict should be taken, without reason or explanation being sought.
4. In the terms in which the requirement was made, it improperly, in my view, suggested to the jury before verdict that it was their function, in certain circumstances, to give guidance as to sentence.
5. In any event, it is contrary to the principle that for sentencing purposes it is for the trial judge to make his own findings of fact, consistent with the jury's verdict."
His Honour added that:
"There is no other field of criminal law within which judges adopt the practice of seeking the assistance of jurors in this way when it comes to establishing the appropriate factual basis for sentencing. I do not believe that manslaughter verdicts should be made an exception to this general rule. Neither Stephen J's remarks [in Veen], nor the authorities to which he referred, require this."
Notwithstanding Roden J's dissent in Petroff, in Low, Lee CJ at CL, with whom McInerney J and Sharpe J agreed, reaffirmed the appropriateness of a trial judge asking questions of a jury as to the basis on which it found an accused not guilty of murder but guilty of manslaughter. After referring to the remarks of Stephen J in Veen, Lee CJ at CL continued:
"In the light of the statement which I have just read, it seems to me that the judges of this Court should adopt the practice in all cases where provocation and diminished responsibility are raised and also, I would say in cases where manslaughter by unlawful and dangerous act and manslaughter by provocation, or manslaughter by diminished responsibility are raised of telling juries that they will be asked upon what basis the verdict of manslaughter was found. Asking that question equips the judge with the jury's finding in cases where provocation and diminished responsibility are raised as defences, for each has the very significant legal effect of reducing a crime of murder to a crime of manslaughter."
Thus stood the state of authority in New South Wales until Isaacs was decided. In that case, however, the New South Wales Court of Criminal Appeal, comprised of Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ, stated, contrary to what had been held in Petroff and Low, that the following considerations should lead trial judges to refrain from questioning a jury as to the basis of a verdict of manslaughter save in exceptional circumstances:
"First, to inform the jury, in the course of a summing-up, that they will later be invited to answer a question, or questions, as to the basis of the verdict, may distract them from their task of seeking unanimity on a general verdict, and provoke unnecessary confusion and disagreement as to the basis of the verdict.
Secondly, the jury's response to any such question may be unclear. A response that indicated two grounds of decision might, depending upon the circumstances, indicate that the jury were unanimous on both grounds, or that some jurors adopted one ground, and the remainder adopted another. The response may create more uncertainty than previously existed.
Thirdly, there may be various possible views of the evidence in a case; different jurors may adopt different views and yet, consistently with their directions, reach a common verdict. To invite them to refine their verdict may be productive of mischief.
Fourthly, there is a substantial risk that the jury will be invited to make a decision upon which they have not been properly addressed by counsel. The present case provides a good example. Trial counsel never addressed the jury on provocation. Rarely would defence counsel's address to a jury be expressed in terms appropriate to a plea in mitigation.
Fifthly, where there are two or more accused the jury might choose to answer the question with respect to one or more and not with respect to another or others. This would be invidious.
Sixthly, the judge may be embarrassed if he or she does not agree with the jury's answer to the question.
Seventhly, where two or more partial defences are advanced, if the jury were to come to a conclusion favourable to an accused on the first defence they considered, they might not consider the other or others; if that occurred, an answer to the question might convey a false impression of having considered and rejected the other or others."
Evidently, those observations were largely based on Roden J's dissenting judgment in Petroff: in particular, his Honour's expressed "objections" to the practice of asking a jury to identify the basis on which it found an accused not guilty of murder but guilty of manslaughter. But, whatever the force of those objections in relation to such a verdict, it is necessary to observe that they do not apply in the same way to a jury that returns a verdict of guilty of an offence of persistent sexual exploitation of a child contrary to s 50(1) of the CLCA. 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.
In particular, the first objection that the questions asked in cases like Petroff called for a degree of unanimity in the jury's reasoning process which the law did not require, and thus could have led to an inappropriate verdict, or an inappropriate failure to return a verdict does not apply to an offence of persistent sexual exploitation of a child contrary to s 50(1) because the requirement for extended unanimity, which derives from this Court's decision in KBT, necessitates that the jury be unanimous as to each of the underlying acts of sexual exploitation which they find to be proved. No prospect of distraction or inappropriate verdicts arises from questioning a jury so as to identify those acts. For that reason, the submission put on behalf of the Crown that the extended unanimity requirement is of no import in relation to how facts are to be found for the purposes of sentencing cannot be accepted.
The second objection that it would add "needlessly" to the task of the jury is similarly inapplicable. Given that, in the case of an offence of persistent sexual exploitation of a child under s 50(1), each of the underlying acts of sexual exploitation is part of the actus reus of the offence, and that it is for the jury alone to find the actus reus of an offence alleged, it must be for the jury, and the jury alone, to determine which of the alleged acts of sexual exploitation they find to be proved. It does not add to the jury's burden to require them to state which of the alleged acts of sexual exploitation they find to be proved.
The third objection that to ask such questions is "contrary to the principle that the jury's verdict should be taken, without reason or explanation being sought" takes the matter no further. In effect, it simply reiterates the dissenting view of Roden J in Petroff, which was adopted by the New South Wales Court of Criminal Appeal in Isaacs, that it is inappropriate for a trial judge to ask the jury the basis on which they returned a verdict of not guilty of murder but guilty of manslaughter. Contrary to that view of the matter, as has been seen, there was a substantial history of trial judges in England, and, until Isaacs was decided, also in this country, asking juries in such circumstances to identify the basis on which they had found the accused to be guilty of manslaughter. It was that practice of which Stephen J expressly approved in Veen. Further, although the practice was generally confined to ascertaining the basis of a verdict in cases of manslaughter, there were instances of it being applied in cases of other offences too. And most importantly for present purposes, whether or not the practice somehow implied that it was necessary to achieve a degree of unanimity in relation to manslaughter which the law did not require, that is not so in relation to an offence of persistent sexual exploitation of a child contrary to s 50(1): the law does require extended unanimity in relation to each of the elements which constitute the offence, and thus requires extended unanimity in relation to each of the underlying acts of sexual exploitation found to be proved.
That is also the answer to the fourth objection that to ask a jury to identify the basis on which an accused was found to be guilty of manslaughter "improperly" suggests that it is the jury's function, in certain circumstances, to give guidance as to the way in which the accused should be sentenced. For, a trial judge having directed the jury that they must be unanimous as to each of the underlying acts of sexual exploitation which they find to be proved, as a jury must be directed, the only significance which the jury would likely attribute to being told that they would be asked to identify such of the alleged acts as they find to be proved is that, because they are required to be unanimous as to the underlying acts of sexual exploitation, they are required to state which they are.
The same applies to the fifth objection that it would be contrary to the principle that, for sentencing purposes, it is for the trial judge to make his or her own findings of fact consistent with the jury's verdict. As the plurality observed in KBT, an accused cannot be convicted of an offence of this kind unless the jury are agreed as to the commission of at least the requisite number of underlying acts. Each of the underlying acts of sexual exploitation comprises an element of the actus reus of the offence prescribed by s 50(1), and it is for the jury alone, not the sentencing judge, to find the acts which constitute the actus reus.
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.
It is true, as the Crown contended, that an offence under s 50(1) is but one single offence, albeit constituted of two or more underlying acts of sexual exploitation separated by not less than the requisite number of days, and it is also true that, despite the allegation of a multiplicity of alleged acts of sexual exploitation, the jury need be satisfied of no more than that the accused committed two of those acts separated by a period of three days. If the accused is convicted, however, the sentence to be imposed is to 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. For that reason, the principle laid down in R v De Simoni is instructive. Plainly, an accused is not to be sentenced for an offence which the jury did not find the accused to have committed. Insofar as R v N, SH held to the contrary, it should no longer be followed.
The passage in Cheung to which the Court of Criminal Appeal referred does not gainsay that. In that case, it was noted that there had been some discussion in the course of oral argument about whether the trial judge could or should have questioned the jury as to the process of reasoning by which they came to their verdict. But the point assumed no importance in the reasoning on the appeal. The trial judge had not been asked to do so and it was not suggested that he should have done so of his own motion. Gleeson CJ, Gummow and Hayne JJ merely remarked that there would be very few cases in which it would be appropriate to do so, for the reasons given in Isaacs. So understood, Cheung does not stand as authority for the proposition that questions should not be asked of a jury and in any event Cheung did not concern an offence such as that arising under s 50(1) of the CLCA.
The verdict and questions in this case
In this case, the judge was right not to direct the jury to bring in a special verdict, and the jury's general verdict of guilty of the offence charged was not uncertain. This was a case, however, in which, after the jury had returned the general verdict, the judge should have exercised her discretion to ask the jury to specify which of the particularised acts of sexual exploitation they were agreed had been proved. For the reasons stated, the considerations which the Court of Criminal Appeal identified as weighing against the exercise of that discretion were inapposite in the context of an offence under s 50(1) of the CLCA.
There was also nothing to prevent the judge directing the jury before they retired to consider their verdict that, if they reached a verdict, they would be asked whether they found the accused guilty or not guilty of the offence charged and, if their verdict was guilty, they would be asked to state which of the alleged acts of sexual exploitation they were unanimously agreed (or agreed by statutory majority) had been proved. It would have been appropriate for her Honour to do so. Such an instruction would also have been aided by listing each of the acts of sexual exploitation particularised in the information on the aide memoire of the elements of the offence that was issued to the jury, so as to enable the jury, as it were, to tick off each of the alleged acts of sexual exploitation that they were agreed had been committed. Of course, in cases in which the alleged acts of sexual exploitation are not as clearly particularised as they were here, or in cases where the evidence of the complainant and the conduct of the trial involves allegations of a more general nature, a trial judge might need to adapt the form of his or her questions commensurate with the detail of the acts alleged.
Counsel for the Crown submitted that so to direct the jury would or could wrongly have conveyed to the jury that they could not convict the appellant of the offence charged unless they were agreed on all of the alleged acts of sexual exploitation, or would or could have wrongly conveyed to the jury that, despite having reached agreement that the appellant had committed two or more of the alleged acts of sexual exploitation, the jury were required to persist in endeavouring to reach agreement as to the remaining allegations. And in counsel's submission, so to influence the jury would have tended to engender uncertainty amongst them and thus to dissuade them from convicting the appellant of the offence charged when the evident object of s 50(1) was to minimise uncertainty and so increase the prospects of conviction in cases in which a complainant is unable to attest to the underlying acts of sexual exploitation with the same particularity as was previously required.
Those submissions should be rejected. If a judge directs a jury that, in order to convict an accused of an offence under s 50(1) of the CLCA, the jury 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 and that they cannot find that he or she committed any of the alleged acts of sexual exploitation unless they are agreed that that alleged act has been proved beyond reasonable doubt. In those circumstances, 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. And if, against the odds, a judge were to conclude that it might have that effect, the judge could rapidly dispel that possibility by repeating the admonition that, in order to convict, it is not necessary to find more than two of the alleged acts of sexual exploitation separated by the requisite period of time. Alternatively, or as well, a judge might choose to explain to the jury that, although any combination of two or more of the alleged acts of sexual exploitation separated by the requisite period of time would be sufficient to find the accused guilty of the offence under s 50(1), if they do find the accused guilty of that offence they will be asked which of the acts of sexual exploitation they found to be proved in order to assist the court with the sentencing process.
Possibly it is true, as the Crown contended, that so to direct a jury might increase the possibility of the jury answering that they were agreed as to no more than two of the alleged acts of sexual exploitation, and, because a judge could not then make findings as to the other alleged acts, might increase the possibility of an accused being sentenced on the basis of having committed no more than two of the acts of sexual exploitation. In counsel's submission, that would be productive of injustice in a case where it was proved beyond reasonable doubt that the offender had committed more than two of the alleged acts of sexual exploitation, but the jury did not deliberate in respect of more than two of those allegations, particularly given the stipulation in s 50(5) of the CLCA that a person who has been tried and convicted or acquitted of a charge of persistent sexual exploitation of a child may not be convicted of a sexual offence against the same child alleged to have been committed during the period to which the offence of persistent sexual exploitation of that child related.
That submission should also be rejected. By the adoption of the form of the offence prescribed in s 50(1), Parliament has signified that the actus reus of the offence of persistent sexual exploitation of a child is comprised of discrete underlying acts of sexual exploitation and that an accused is not to be convicted or sentenced on any basis other than having committed only those acts of sexual exploitation which the jury are agreed have been proved. Consequently, whether or not that may be productive of a risk of injustice of the kind contended for by the Crown is essentially beside the point. The risk is also overstated. It is in the hands of the Crown to avoid, or at least substantially mitigate, the risk by taking care not to allege in one information a greater number or diversity of alleged acts of sexual exploitation, or a greater period of offending, than will enable the jury effectively to concentrate on each of the alleged acts of sexual exploitation and decide upon them individually, as the legislation requires them to do, rather than being inclined to switch off from that task because of an overly large number of alleged acts or an overly large period of alleged offending.
The sentence in this case
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. Consequently, where a jury returns a verdict of guilty of a charge of persistent sexual exploitation of a child contrary to s 50(1) and the judge does not or cannot get the jury then to identify which of the alleged acts of sexual exploitation the jury found to be proved, the offender will have to be sentenced on the basis most favourable to the offender.
In this case, since the judge did not ascertain which of the alleged acts of sexual exploitation the jury were agreed were proved, the appellant should have been sentenced on the view of the facts most favourable to the appellant: that the jury had convicted the appellant of persistent sexual exploitation of the complainant on the basis of having committed no more than the acts of sexual exploitation alleged in Particular 1, namely, kissing the complainant on more than one occasion in circumstances of indecency. In fact, as will be recalled, the judge had expressly directed the jury that it was open to find the appellant guilty on that basis. The appellant was sentenced, however, as if he had been found to have committed all of the alleged acts of sexual exploitation. The sentence imposed was therefore not only infected by error, but also manifestly excessive.
Conclusion and orders
In the result, the appellant's appeal against the Court of Criminal Appeal's rejection of his appeal against conviction should be dismissed. The appellant's appeal against the rejection of his appeal against sentence should, however, be allowed. The sentence should be set aside and the matter should be remitted to the Court of Criminal Appeal for the appellant to be resentenced.