DISTRICT COURT OF QUEENSLAND

THE APPLICATION

1. [1]
   The applicant challenges the constitutional validity of s 229B of the Criminal Code (Qld). Notice of the application has been provided to all Commonwealth and State Attorneys-General in compliance with s 78B of the Judiciary Act 1903.

2. [2]
   The application is made pursuant to s 590AA(2)(a) and (e). The applicant submitted that s 229B of the Criminal Code (Qld) in its current form (as enacted at 01 May 2003) was invalid as being beyond the power of the Queensland Parliament. Consequently, it was submitted that the prosecution of the applicant upon the charge of maintaining an unlawful sexual relationship with a child (count 2 on indictment C000313/2008/LO1) should be quashed or alternatively should be permanently stayed.

THE INDICTMENT

3. [3]
   The applicant is charged with nine counts of indecent treatment of a child with circumstances of aggravation and one count (count 2) of maintaining a sexual relationship. Count 1 charges two circumstances of aggravation: that the child was under 12 years of age and that the applicant knew her to be his lineal descendant. Counts 3 to 10 inclusive, charge one circumstance of aggravation namely that the applicant knew the child was his lineal descendant. Those 9 counts are made pursuant to s 210(1)(a) of the Criminal Code (Qld).

4. [4]
   The count in the indictment the subject of this application is expressed (as amended at the conclusion of the hearing of the application) as follows:

5. [5]
   The applicant originally had been charged with 12 charges but at the committal proceeding was committed for trial on six charges of indecent treatment of a child under the age of 16 years pursuant to s 210(1)(a) of the Criminal Code (Qld). It appears that the other six charges were struck out on the ground of being a duplication of the six that were committed for trial.

6. [6]
   The current indictment was presented on 24 April 2009. The original indictment did not include counts 3-10.

SECTION 229B CRIMINAL CODE (QLD).

7. [7]
   The section currently provides, so far as is relevant, as follows:

“[s 229B] Maintaining a sexual relationship with a child

229B (1) Any adult who maintains an unlawful sexual relationship with a child under the prescribed age commits a crime.

offence of a sexual naturemeans an offence defined in s 208, 210 (other than section 210 (1)(e) or (f)), 215, 222, 349, 350 or 352.

prescribed age …

unlawful sexual act means an act that constitutes, or would constitute, if it was sufficiently particularised), an offence of a sexual nature.”

LEGISLATIVE HISTORY

8. [8]
   The section in its original form in July 1989 required proof of the commission of 3 or more offences of a sexual nature (other than under s 210(5) or (6)). Further amendments that had effect from 01 July 1997 still required proof of 3 or more offences of a sexual nature (other than under s 210(e) or (f)). The current form of the section was enacted with effect from 01 May 2003.

9. [9]
   So far as is relevant, the original form of the section provided in subsection 1(A) that:

“A person shall not be convicted of the offence …unless it is shown that the offender, as an adult, has, during the period in which it is alleged that the offender maintained the relationship in issue with the child, 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 shall be admissible and probative of the maintenance of the relationship notwithstanding that the evidence does not disclose the dates or the exact circumstances of those occasions.”

10. [10]
    The equivalent section in its first amended form (from 01 July 1997 until the commencement of the current section on 01 May 2003) was in substantially the same terms as the original form.

THE ISSUES

11. [11]
    The gravamen of the application is that the section obliges the court to conduct its determination of the accused’s guilt of innocence of the charge in a manner whereby no specific contravention of the criminal law is (a) particularised to him; (b) particularised to the jury and (c) required to be proven beyond reasonable doubt. The applicant submits that this is such an interference with the exercise of the judicial process as to be repugnant or incompatible with the judicial power of the Commonwealth, as provided for under Chapter III of the Constitution.

12. [12]
    The form of the section prior to the commencement of the current version of the section was considered in KBT v The Queen (1997) 191 CLR 417.  The High Court unanimously upheld the Court of Appeal finding that the “actus reus” of the section was the commission of three or more offences of a sexual nature, thereby requiring the jury to be agreed as to the same three or more offences beyond reasonable doubt in order to convict.  In the joint judgment of Brennan CJ, Toohey, Gaudron and Gummow JJ, Their Honours stated (at pp 422-3):

“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 offences 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.

……

It should be noted that, quite apart from any question of fairness to the accused, evidence 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).  Moreover, if 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).”

13. [13]
    Kirby J (at p 428) stated:

“It will be observed that the offence provided by s 229B(1) is of a somewhat unusual character.  It relates not to a particular act, matter or thing … [h]appening upon a specified date at an identified place.  It is inherent in the nature of a ‘relationship’ that it will extend over a period of time and be of a continuous nature.  The provisions of s 229B(1A) are clearly intended to strike a balance between the need for a measure of precision in the proof of the offence (on the one hand), and on the other, the need to recognize that it may not be possible for a complainant to identify exactly the dates and circumstances of the events said to prove the maintenance of the relationship”

14. [14]
    His Honour, continuing in the course of noting a number of considerations about the nature of the section, said the following (at p 432-3):

“3. Section 229B(1A) provides that the prosecution must prove that the offender has done an act constituting an offence of a sexual nature of three or more occasions.  This statutory pre-requisite must be given full effect.  This is because it amounts to a parliamentary recognition of the risks involved in the offence.  Those risks include the exposure of a person to conviction upon generalised evidence which it may be difficult or impossible to disprove, which need not be confirmed by testimony other than that of the complainant which may result in a trial involving little more than accusation and denial.  These risks provide reasons, quite apart from the general rule of construction ordinarily applied to a criminal statute, for adopting an approach to the pre-conditions laid down by Parliament which is rigorous and defensive of the fair trial of the accused. It is in this context that the previous holding of the Court of Appeal (a reference to R v Kemp [1997] 1 QdR 83) and its holding in this case … must be understood.  The jury may find offences of a sexual nature in relation to the child on more than three occasions. But to warrant a verdict of guilty of an offence against the section, the jury must identify to themselves at least three occasions, reach unanimous agreement that the offences on those occasions are of a sexual nature, that they relate to the child and are such as to show the maintenance of the relationship charged and have been proved beyond reasonable doubt.  All of these elements must be made out.  It is the duty of the judge to explain to the jury the need for each one of them to be proved to their unanimous satisfaction.  In default of such an explanation there will have been an error in the conduct of the trial.”

15. [15]
    It is against that background that the legislative amendments appear to have been made, that gave effect to the section in its current form, with a focus on the course of conduct rather than the separate sexual acts comprising the relationship.

APPLICANT’S SUBMISSIONS

16. [16]
    Mr Callaghan SC submitted that, in effect, the amended section was not analogous to other offences which relied upon proof of a course of conduct. For example, he referred to a charge of trafficking in a dangerous drug based upon a course of conduct requiring evidence of indicia, which of necessity had to be particularised in order for the accused to know the case against him or her. Similarly, he submitted that where the trafficking offence relied upon discreet transactions, then such transactions had to be nominated and properly particularised for the same reason. Alternatively, the prosecution was required to proceed upon separate counts.

17. [17]
    By way of further example, the offence of stalking (s 359B Criminal Code (Qld)) was comprised of separate acts which by their very nature might not themselves be necessarily unlawful but by their combination, intent and effect may constitute unlawful conduct. However, they may constitute unlawful conduct. That did not apply to an unlawful sexual relationship charge which could only arise due to the unlawful nature of the separate acts. In a stalking charge there was no provision against the giving of particulars or as to the need for the jury to be satisfied as to the same acts that might constitute the offence.

18. [18]
    In the current form of s 229B, the relationship continues to be defined by specific acts but it is those acts alone that constitute the relationship and not any identifiable objective indicia or other incidents or transactions. Mr Callaghan SC submitted that in the current form of the section, evidence of unlawful acts not the subject of the charge were admissible. In its current form the section did not require the criminal acts upon which the relationship is founded to be particularised and the members of the jury could each take into account different conduct as constituting the unlawful acts and the jury did not have to be satisfied in respect of any particular unlawful act beyond reasonable doubt.

19. [19]
    The applicant’s submission was that it is not possible to construe s 229B in a way that would not encroach upon the accused’s fundamental right to a fair trial. Mr Callaghan SC submitted that the jury function of fact finding which was critical to the criminal process has been circumvented, in effect, by the current section. The form of the section was, he submitted, impermissible and required the exercise of judicial power in a manner which was inconsistent with the essential character of a Court. This was so regardless of whether the prosecution, by its own volition, in fact provided particulars of the offence or charged each of the unlawful acts said to constitute the maintenance of the sexual relationship as separate counts in the same indictment.

20. [20]
    He described the impact of the current section upon the character of the criminal justice process, in the following terms (T 1.4-1.5):

“[the] characteristics of a jury and the manner in which a jury functions are not set in stone.  Again, we’ve witnessed in recent times some significant alterations to the procedural aspects of a jury’s determination, but they are just that, in our submission, procedural.  For example, after a certain time a jury is now allowed to separate.  In certain circumstances and after a certain time a majority verdict can be returned.  But event hen the finding of guilt which might be reached by a jury can be said to be at least the result of a consensus of a conclusion of fact by at least a majorities of jurors. 

Section 29B has put an end to all that.  It does not just go into unchartered territory, it sails off the edge of the constitutional map.  We can examine its terms.  Sub-section (1) is in a form which, again, whilst of relatively recent currency in this context is in a form with which we’re at least familiar.  Sub-section (2) gives the section, it might be thought, an extra ordinary wide operation.  What’s more, we allow that Parliament’s intention must be respected and that fact cannot be the subject of complaint.  Sub-section (3) is, without more, really a restatement of (1) and (2), but our point is that there is more and the mischief flows from sub-section (4).  Sub-section(4)(a) an (b) remove, in effect the right of an accused person to know the alleged case which is alleged against them and a Court is impotent in the face of sub-section (4)(a) to remedy the situation by ordering the delivery of particulars,  (4)(a) provides the prosecution is not required to allege them.  There is nothing a Court can do in the face of such a clear statement by Parliament.

The necessary and objectionable consequence of (a) and (b) is that there is no longer any comfort that the accused and indeed the community, can enjoy from the certainty - which once attached to a jury’s verdict.  It changes all that, has for centuries and indeed at the point when our nation was brought into existence, was represented by a jury’s verdict.  Whilst the – the machinations of a jury’s deliberations have always been and must remain inscrutable, that which is represented by the verdict is not.  It represents a conclusion beyond a reasonable doubt about something which has been reached by at least a majority in all circumstances – in all circumstances of which a – a verdict might be delivered.  That this provision has validity that can no longer be said.  It’s a change which is – so, this – this would be, if – if allowed, a change so fundamental that it could be said to be inconsistent with judicial power as we know and understand it.”

21. [21]
    As I understood the applicant’s submissions, the constitutional challenge was made broadly and beyond merely the specifics of this prosecution. In other words, the drafting of the section was such that regardless of whether it might be ameliorated in some way by a specific prosecutory decision or exercise of judicial direction, it was and it remains constitutionally invalid.

RESPONDENT’S SUBMISSIONS

22. [22]
    Mr Cowen submitted that so far as this case is concerned any argument concerning constitutional validity does not apply, if it did apply at all, because the prosecution has provided particulars and the applicant is apprised of the nature and content of the prosecution case and therefore is not in an unfair or invidious position so far as his capacity to defend the charges is concerned.

23. [23]
    He submitted that the determination of this application could only be made upon the circumstances in this case, namely the fact that the trial indictment charges each of the unlawful acts said to constitute the maintenance of a sexual relationship as individual counts together with the count made pursuant to s 229B.

24. [24]
    The respondent has informed the applicant that the current indictment is the trial indictment and would be prosecuted upon particulars that were provided under cover of a letter dated 12 September 2008, in the following terms:

“Count 3:  Indecent dealing – involves an incident at Wunjunga in the Easter holidays of 2005.  the complainant slept in a bed with the accused.  She felt him touching her vaginal area.

Count 4:  Indecent dealing – it is alleged that the accused then touched the complainant’s breasts and pulled her shoulders to lay her flat on her back and placed her legs between his.

Count 5:  Indecent dealing – it is alleged that the accused then placed his hands on the inside of the complainant’s underwear and touched her on the clitoris and vagina. 

Count 6:  Indecent dealing – on a different night still in the same 2005 Easter holiday period at Wunjunga the complainant was lying in a single bed in a downstairs room.  The accused is alleged to have come in to the room and touched her on the outside of the clothing in the vaginal area.  The accused’s hand was under the blanket and stroking the complainant’s vagina. 

Count 7:  Indecent dealing – further in the Easter holiday in 2005 at the house in Clare the complainant was sharing a double bed with her sister RC.  It is alleged the complainant was awoken by the accused touching her vagina, firstly on the outside of her clothing, and then on the inside of her underwear touching her clitoris and vagina.

Count 8:  Indecent dealing – on a later night during the same Easter holidays (in 2005) at Clare the complainant was again in the bed with RC when it is alleged the accused again entered the bedroom and touched the complainant on the outside of her clothing in the vaginal area.

Count 9:  Indecent dealing – involves an incident in January 2006 at Clare where the complainant was again sharing a bedroom with RC.  It is alleged the accused entered the room and started feeling the complainant on the outside of the clothing on her stomach and her breasts.  The accused then put his hand up the complainant’s shirt, unclipped her bra and then rolled the complainant onto her back.  He then touched her on the breasts, touching and rubbing her nipples. 

Count 10:  Indecent dealing – it is alleged the accused then put his hand inside the complainant’s underwear and touched the complainant on the vagina and clitoris.”

25. [25]
    It is those eight counts which apparently constitute the unlawful acts relied upon for the charge in Count 2 of maintaining an unlawful sexual relationship. Count 1 refers to conduct, when the child was younger, on a date unknown between 1 January 2002 and 31 December 2002 at Clare. In so far as that charge is concerned, no specific submissions were made as to either its joinder with the other charges or any lack of particularisation of that specific charge. Of course it may be that Count 9 is not necessarily relevant to Count 2.

JURISDICTION

26. [26]
    The criminal jurisdiction of this Court is provided in sections 60 and 61(1) of the District Court of Queensland Act 1967:

“60 The District Court has jurisdiction to inquire of, hear, and determine all indictable offences, wheresoever committed save as hereinafter accepted.

61 (1)  The District Court does not generally have jurisdiction to try a person charged with an indictable offence if the maximum penalty for the offence is more than 14 years.”

27. [27]
    The source of the criminal jurisdiction of this Court is in sections 39(2) and 68(2) of the Judiciary Act 1903.  Section 61 extends the criminal jurisdiction in certain circumstances referred to in sub-sections (2) and (3).  The criminal jurisdiction of this Court extends to federal offences committed within this State.  Hence the Court is invested with federal jurisdiction.  The applicant submitted that the principle in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 is that judicial institutions invested with federal jurisdiction may not act in a manner inconsistent with the requirements of Chapter III of the Constitution (s 77(iii)).  The Court  has criminal jurisdiction in respect of indictable offences, both federal or state and exercises the judicial power of the Commonwealth under s 71 of the Constitution.

INVALIDITY AND INCONSISTENCY

28. [28]
    Mr Callaghan SC submitted that the adjudication and punishment of criminal guilt was exclusively a judicial function and involved the exercise of judicial power. The Constitution did not permit the making of a law which required or authorised the Court to exercise judicial power in a manner inconsistent with the essential character of a court with the nature of judicial power: Re Criminal Proceeds Confiscation Act [2004] 1QdR 40; and Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1.

29. [29]
    The application of the Kable principle has been considered in a number of cases.  The applicant specifically referred to Nicholas v The Queen (1998) 193 CLR 173.  That case concerned legislation which provided that evidence obtained in the course of controlled operations (pursuant to s 15G of the Crimes Act 1914 (Cth)) was not to be rejected on the grounds of unlawful conduct of officers.  Whilst a majority of the High Court held that the law was valid, the applicant relied upon statements as to the role of the Court in criminal proceedings and in the fact-finding function. 

30. [30]
    Brennan CJ said (at pp 187-8) that:

“The findings of facts is a curial determination of the actual existence of occurrence of the acts, matters and things on which criminal liability for the offence charged depends.  It is a function which, on the trial on indictment of a person charged with an offence against a law of the Commonwealth, is reposed in a jury…”

31. [31]
    Gummow J stated (at pp 235-6) that it was for the judicial tribunal “to determine on recognised principles the issue of guilt or innocence upon any evidence that may be adduced.”

32. [32]
    Gaudron J said (at pp 208-209):

“In my view, consistency with the essential character of a court and with the nature of judicial power necessitates the Court not be required or authorised to proceed in a manner that does not ensure equality before the law, impartiality and the appearance of impartiality, the right of a party to meet the case made against him or her, the independent determination of the matter in controversy by application of the law to facts determined in accordance with rules and procedures which truly permit the facts to be ascertained and, in the case of criminal proceedings, the determination of guilt or innocence by means of a fair trial according to law. That means, moreover, that a court cannot be required or authorised to proceeding any manner which involves an abuse of process, which would render its proceedings in  inefficacious or which brings or tends to bring the administration of justice into disrepute.”

33. [33]
    Conversely Mr Cowen submitted that the Kable principle was a narrow one and that if the section was in truth repugnant to one or more of the defining characteristics of a court, the court’s capacity to exercise federal judicial power is not compromised. Reliance was made upon statements in Forge v ASIC (2006) 80 ALJR 1606 and Fardon v AG (Qld) (2004) 223 CLR 575:  The defining characteristics of the “Court” were those which set the court apart from other decision-making bodies and which gave to it “institutional integrity”.  McHugh J said in Fardon (at paragraph 41) that “the bare fact that particular State legislation invests a State court with powers that are or jurisdiction which is repugnant to the traditional judicial process was seldom, if ever, compromised the institutional integrity of that court to the extent that it affects that court’s capacity to exercise federal jurisdiction impartially and according to federal law… [I]t does not follow that, because State legislation requires State Courts to make orders that could not be countenanced in a society with a Bill of Rights, the institutional integrity of those Courts is compromised.’

34. [34]
    Mr Cowen cited, by way of example, the court having for a long time admitted evidence of previous sexual acts even though those acts were not fully particularised and the allegations were of a generalised nature.

35. [35]
    He submitted that s 229B was intended to resolve issues that arise from circumstances where offences occurred over a long period of time and the victim was of an age which made particularisation of individual offences difficult. In other words, the legislature had endeavoured to strike a balance between competing interests in the enactment of the section. He submitted that the prosecution was not prohibited from alleging particulars of the unlawful acts but simply that it was not required so to do, depending upon the circumstances of the case including the age of the victim and the difficulty to which I have referred. If the prosecution did not or could not particularise the unlawful acts, judicial intervention would provide the necessary remedy to ensure that an accused received a fair trial and was afforded the opportunity to meet the case against him.

36. [36]
    In R v WAB [2008] QCA 107 (at [28] Keane J A observed:

“It is also important to state that, while s 229B(4) is clearly intended to facilitate the conviction of offenders of contravention of 229B (1) even though the evidence against the accused is not sufficiently particularised to establish a charge of a separate sexual offence, that circumstance makes it all the more important to ensure that the accused has the benefit of the other procedures calculated to ensure a fair trial.  In this regard, it is, of course, important that the accused should have every opportunity to meet the case made against him or her by the Crown.”

37. [37]
    His Honour had said, in response to the appellant’s submission (that generalised descriptions of offending conduct made it difficult for an accused to mount an effective defence on a charge pursuant to s 229B(1)), that “[i]t is not possible, however, in my respectful opinion to avoid the conclusion that the legislature intended to permit an accused person to be charged and convicted of maintaining an unlawful sexual relationship upon unparticularised evidence of unlawful sexual activity” and that “[I]t must also be borne in mind that generalised or vague assertions can be expected to be regarded with proper scepticism by a jury” and that proper directions by the trial Judge would, inferentially, ameliorate any unfairness to the accused.

38. [38]
    Mr Callaghan SC challenged the assertion regarding the provision of particulars in any specific case as an amelioration of the effect of the section and submitted that the section could not be read in a way so as to permit the trial judge to retain a discretion.

39. [39]
    The expressions “the prosecution is not required…” or “the jury is not required…” or “all the members of the jury are not required….” were mandatory terms. The section prohibited the provision of particulars, prohibited the jury from being required to be satisfied as to particular acts said to amount to guilt and prohibited the jury from acting unanimously in respect of those facts. He submitted that such prohibition amounted to a fundamental inconsistency with the constitutional function of the court such as to render the section invalid. The validity of legislation did not and could not depend upon the exercise of a prosecutorial discretion in any particular case. The provision of particulars in any given case could not be the subject of direction by the court. In so far as other procedures that might be available to ensure a fair trial was concerned it was not possible to identify what other procedures might be invoked that would overcome the fundamental difficulty faced by an accused upon a literal construction of the section.

40. [40]
    He relied on a statement by McHugh J in KRM v R (2001) 206 CLR 221 (at pp 226-227):

“Subject to the operation of Ch III of the Constitution the legislature of the State of Victoria may modify – even abolish the need for particulars of criminal charges but an intention to do so should be imputed to the legislature only when it has enacted words that make its intention unmistakably clear.  Courts should not lightly infer that the legislature has intended to abolish or modify fundamental principles of the common law such as the principal that an accused person must have a fair opportunity to defend a criminal charge.  Here the legislature has made it clear that the prosecution does not have to prove the date or the exact circumstances of the offence.  But that is all.  It is not said that the prosecution need not give particulars or need not prove the general circumstances of each act constituting an offence…”

THE OPPOSING CONTENTIONS

41. [41]
    Mr Callaghan SC submitted that s 229B “[s]o impinges on judicial power to control its own processes to ensure a fair trial for the defendant in its prosecution under s 229B that it renders the provision incompatible with the essential judicial function required to be exercised by Chapter III of the Constitution.”

42. [42]
    Mr Cowen submitted that “in this case the events have been particularised and identified by the particulars provided and in any event by the evidence disclosed. The allegations are not vague; the accused knows the legal and factual character of the Acts which constitute the nature of the maintaining charge. Even if that were not the case the gravamen of the offence is the maintaining of an unlawful sexual relationship and the trial process has within it procedures calculated to ensure a fair trial. S 229B was amended to ensure the criminality of maintaining an unlawful sexual relationship with a child could be prosecuted in circumstances where the abuse is so frequent to market he acts undistinguishable in the mind of a child. He said that it was an affront to common sense to commit an offender to escape sanction in such circumstances where the child is abused so frequently.

DISCUSSION 

43. [43]
    The High Court in Nicholas was concerned primarily it seems to me with the restriction imposed by the legislature on the capacity of the court to exclude evidence obtained unlawfully.  It is in that context that the observations about the institutional integrity of a court should be understood.  For example, Hayne J (at p 274) referred to intrusion on the judicial power in the context of that issue, in the following terms

“Once it is accepted that the legislature may make or change the rules of evidence it is clear that it may make or change the rules governing the discretionary exclusion  of evidence, in particular, it may make or change rules governing the factors which a court is to take into account in exercising that discretion.  In the case of this particular discretion, the exercise of which depends upon the balancing of competing considerations, I see no intrusion on the judicial power by the legislature saying that in some kinds of case, one consideration (that of preserving the reputation of the Courts by their not being seen to condone lawbreaking) is to be put to one side in favour of the consideration that persons committing particular kind of crime should be convicted and punished.”

44. [44]
    The applicant’s submission is directed at the whole of s 229B but, it seems to me’ is primarily focussed upon sub-section (4) and more particularly sub-paragraph (4) (c). The equivalent provisions to subsection (4) (a) and (b) in both the original and the first amended form of the section, refer to the admission of evidence of the doing any act defined to constitute an offence of a sexual nature, notwithstanding that the evidence “does not disclose the dates or the exact circumstances of those occasions”.  It seems to me that the current form of the section in sub-section 4(a) and (b) covers the same consideration, albeit expressed in different language.  Those sub-paragraphs of the current section really, in a more expansive form, reflect the same intent as was provided for in the original and first amended forms of the equivalent sub-section.

45. [45]
    However, it is sub-paragraph (c) - namely that “all the members of the jury are not required to be satisfied about the same unlawful sexual acts” which sets the current section apart from its predecessors.  Mr Callaghan SC addressed the concern about this provision by reference to the implication such a provision has for the pleas of autrefois  acquit or autrefois convict (T1-5 to 1-6).  He postulated that from a purely theoretical standpoint there was nothing to prevent the prosecution from proceeding upon a charge referable to a specific incident of an unlawful sexual act committed during the same period as the period of maintaining a sexual relationship even if an accused person had been convicted or acquitted of the latter offence, because it could not be said that the further charge was different from or the same as any specific unlawful act which may have been relied upon on the charge of maintenance of a sexual relationship.  He submitted in effect that a verdict on the latter charge – whether acquittal or conviction – would in such circumstances stand for nothing because it could not be said with certainty what it represented.

46. [46]
    This is the issue that has troubled me most in determining the application. Certainly the section as it is currently drawn goes much further than its predecessors and the implications of the provision to which I’ve just referred have not, it seems to me, been specifically judicially considered in the past.

47. [47]
    In KBT v R the High Court referred to the need for the legislative intention to be stated in unmistakably clear terms.  The intention of the Queensland legislature in enacting s 229B  was to facilitate the prosecution of  alleged sexual offenders in respect of offences committed against children – who may be of a very tender age and unsophisticated – where the frequency of offending or the type of offending in the circumstances of the particular complainant were such that specific acts could not be identified and specific occasions could not be established; and that as a matter of public policy a prosecution should nevertheless proceed despite the lack of particularisation or, as it is currently expressed in the section, a need for the jury to be unanimously satisfied of the particulars of any specific unlawful act.  It is in that context that the statement by McHugh J (supra at paragraph [40]) is understood by me.

48. [48]
    Hence a modification of fundamental rules by legislative intervention is not prohibited if it is clearly expressed, subject to the maintenance of the institutional integrity of the judicial process in terms of Chapter III of the Constitution. In KRM v R, Kirby J referred to “the rule of particularity” and the applicable general principles, in the following terms:

“[T]he first is that the essential character of our criminal justice system is accusatorial.  The normal rule is that a person, accused of a criminal offence, is entitled to be informed not only of the ‘legal nature of the offence with which he is charged but also with the particular act, matter or thing alleged as the foundation of the charge’.  Unlike some other systems of criminal trial, that of the common law is disinclined to permit the conviction of an accused person upon ‘inexact proofs, indefinite testimony, or indirect inferences’.  In harmony with this fundamental postulate, the rule established for criminal trials in Australia is an ordinarily one which requires a high degree of specificity in the accusations, charges and evidence preferred by the prosecution.  Because these are principles of the common law, they may, subject to the requirements of Chapter III of the Constitution, be modified by legislation.  However any derogation from such fundamental rules has to be very clearly expressed. Otherwise it will be presumed that no departure from them is included in the legislation concerned.”

49. [49]
    As I have said, judicial authority has largely dealt with issues of particulars rather than specifically an issue such as a finding by the jurors of the same or different unlawful sexual acts constituting the offence.

50. [50]
    So far as s 229B (4)(a) and (b) is concerned no issue of invalidity or inconsistency with the Commonwealth Constitution arises. It is within the power of the legislature to make an enactment in those terms, as it had - albeit in a different form of words – in both the original and the first amendment forms of the section.

51. [51]
    I do not agree with the submission of the applicant that the words of those subparagraphs are prohibitive in their effect. The court does have discretion to direct that the prosecution provide particulars. It seems to me that the court has and continues to have its power to regulate the proceedings before it and it would be a brave prosecution which declined, in any given case, to provide such particulars as were known or available in respect of a charge under the section if directed to do so by the court, provided the direction was made in order to ensure fairness to an accused or to enable the accused to properly know the case against him or her. If the prosecution nevertheless declined to do so, or if the particulars were so minimal as to be of little utility to the accused, the court retains its power to deal with the case either by way of acceding to an application to permanently stay the proceeding, whether as an abuse of process or otherwise, or to direct an acquittal on the basis of there being no evidence of the indecent acts which are required to be proved to establish the maintenance of a sexual relationship.

52. [52]
    In so far as subparagraph 4(c) is concerned, the theoretical concern expressed by the applicant in respect of the special pleas, to which I have referred, may be addressed by the court exercising a power such as that to which I have referred above in paragraph [51].

53. [53]
    The provision of particulars and/or the inclusion in an indictment of specific charges which constitute the unlawful acts relied upon in respect of the s 229B offence, as is the situation in this case, seems to me to address the concern of the applicant in this particular case.

54. [54]
    I have understood the applicant’s submission that the validity of the section should not be dependent upon either the exercise of a prosecutory discretion or the exercise of a judicial discretion and that the issue of invalidity or inconsistency is more fundamental than that. Nevertheless, the legislature has made its intent clear in the legislation in its modification of the requirement for the jury to be unanimous in its findings in respect of specific unlawful acts and even though it is arguable that there is thus a legislative modification of a fundamental principle, the enactment of the section is within the power of the legislature of the state of Queensland so to do. Other fundamental principles relating to juries in criminal trials have similarly been modified in Queensland: the enactment allowing majority verdicts, the enactment permitting juror to separate even after retirement to consider the verdict and the provision of trial by judge alone.

CONCLUSION

55. [55]
    The enactment of s 229B (4) (c) has given me the greatest difficulty in determining the application. It undoubtedly is a modification of a more fundamental judicial function than that covered by sub-paragraphs (4) (a) and (b). However, on balance I consider that this provision is within the power of the legislature of the State of Queensland to make and it is expressed in clear and unequivocal terms.  I do not consider that s 229B in its current form is invalid as being beyond the power of the Queensland legislature. The application therefore fails.

ORDERS

1 The application is refused.