Today (13 September 2017) the High Court passed down two judgments in two similar cases related to the issue of persistent sexual exploitation of a child. Both appeals were heard together and considered the application of persistent sexual exploitation as set out in the Criminal Law Consolidation Act 1935 (SA) (‘CLC Act’). In Chiro, the High Court allowed the appeal by majority. In Hamra, the High Court dismissed the appeal.
In Hamra, the case concerned the issue of whether in order to prove PSE of a child, the prosecution must prove features of the circumstances surrounding each act of sexual exploitation, such as that the occasions of these alleged act can be separately identified. The case concerned historical sexual abuse by the appellant between 1977 and 1982 when the victim was aged between 12 and 17 years old.
In Chiro the appellant was charged with an offence of persistent sexual exploitation of a child while he was employed as a teacher. The abuse occurred when the victim was in Years 9-12.
At first instance, the judge directed the jury that it was sufficient to prove the offence if they were satisfied that the appellant had kissed the complainant on more than one occasion. The jury returned a majority verdict of guilty and the judge sentenced the appellant finding that he had committed all the acts of alleged sexual exploitation. The appellant’s appeal to the Court of Criminal Appeal (‘CCA’) based on the argument that the trial judge erred in not asking questions of the jury was dismissed. He then appealed by special leave to the High Court.
The appellant Hamra, was acquitted of the charge of persistent sexual exploitation by the trial judge sitting alone, who found that there was no case to answer because the allegations could not be differentiated with regards to specific events. The Director of Public Prosecutions sought leave to appeal , and the CCA allowed the appeal, finding that despite the generalised nature of the assertions there was a case to answer. Thereafter the appellant appealed to the High Court on the basis that it was not possible to identify two or more sexual offences within the meaning of section 50 of the CLC Act.
The High Court unanimously dismissed the appeal in Hamra, finding that proof of the offence of sexual exploitation does not require evidence which allows the alleged acts of sexual exploitation to be delineated by reference to differentiating circumstances.
In Chiro, the High Court by majority allowed the appeal. It found that the judge should have exercised discretion to ask questions of the jury to specify which of the alleged acts of sexual exploitation they agreed had been proven. They found, upon construction of section 50(1), each act of sexual exploitation is part of the actus reus of the offence and in circumstances where the judge did not know which of the acts the jury decided the matter on, the appellant should have been sentenced on the view of the facts mostly favourable to him.
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Chiro v The Queen  HCA 37, and judgement summary.
Hamra v The Queen  HCA 38, and judgement summary.
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