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43 B A L A N C E M A R C H 2 0 1 8 C R I M I N A L L A W Offence of persistent sexual exploitation Where jury required to identify acts of exploitation In Chiro v The Queen [2017] HCA 37 (13 September 2017) the accused was charged with persistent sexual exploitation of a child. That offence requires the commission of at least two acts of sexual exploitation (each of which could be the subject of a sexual offence charge) over less than three days. The jury was directed that it would be sufficient if the accused had kissed the complainant in circumstances of indecency (which was a particular of the offending), or had committed any of the other, more serious, acts particularised on more than one occasion within three days. The jury returned a verdict of guilty. No further questions were asked of them. A majority of the High Court held that the trial judge should have asked further, more specific questions of the jury, designed to understand which of the alleged acts of exploitation they had found proved. It would also have been open to give directions to the jury that they would, if a guilty verdict was returned, be asked those questions. However, the conviction of the accused in this case was not uncertain because that had not happened. The appeal on conviction was dismissed. However, in this case, because the trial judge did not know which acts of exploitation the jury had found proved, the accused should have been sentenced on the view of the facts most favourable to him; that is, on the basis that the least serious alleged acts had been proved. Because the trial judge sentenced the accused on another basis, the appeal against sentence was allowed. The matter was remitted for the accused to be resentenced. Kiefel CJ, Keane and Nettle JJ jointly; Bell J separately concurring; Edelman J dissenting. Appeal from the Supreme Court (SA) allowed in part. C R I M I N A L L A W Offence of persistent sexual exploitation Legality of actions relating to regional processing in PNG Hamra v The Queen [2017] HCA 38 (13 September 2017) concerned the same persistent sexual exploitation of a child offence as Chiro v The Queen (above). This case was heard by judge alone. At the end of the prosecution case, the defence made a no case submission that was accepted. The judge held that it was not possible to identify two or more proved sexual acts or offences as required, given the general nature of the complainants evidence. The Court of Appeal allowed an appeal, holding that it was not necessary for each act of sexual exploitation to be identified so as to be distinguishable from the others. The evidence, if accepted, was capable of proving the offence. The High Court agreed that, so long as two or more distinct acts committed in a three-day period could be identified, the acts do not need to be particularised beyond the period of the acts and the conduct constituting the acts. It would be sufficient, for example, if evidence was accepted that an act was committed every day over a two week period without further differentiation, allowing for a deduction that the acts occurred over not less than three days. The appeal on that point had to be dismissed. The High Court also held that the Court of Appeal had considered and decided whether to grant permission to appeal, though no reasons had been given. The Court also had not erred by failing to refer to double jeopardy as a factor weighing against a grant of permission to appeal. Kiefel CJ, Bell, Keane, Nettle, and Edelman JJ jointly. Appeal from the Supreme Court (SA) dismissed. DECEMBER C O N S T I T U T I O N A L L A W Appropriations Statutory construction In Wilkie v the Commonwealth; Australian Marriage Equality v Cormann [2017] HCA 40 (28 September 2017) the High Court upheld the validity of the appropriation made to allow the Marriage Equality postal plebiscite to be carried out. On 9 August 2017, the Finance Minister Matthias Cormann announced that the government would proceed with a postal plebiscite to ask electors whether the law should be changed to allow for same-sex marriage. The Minister also announced that he had made a determination, under s 10 of the Appropriation Act (No 1) 2017-2018 (Cth), providing for an advance of $122m to go to the Australian Bureau of Statistics to conduct the plebiscite. On the same day, the Treasurer gave a direction to the Australian Statistician, to collect the data from the plebiscite. The plaintiffs argued that the appropriation under s 10 was constitutionally invalid; that s 10 should not be construed to allow for the actions taken; that the Finance Ministers Determination and the Direction to the Australian Statistician were invalid; and that the Australian Electoral Commission (AEC) had no authority to assist in the plebiscite. In relation to validity of the appropriation, the Court held that it was actually s 12 of the Act that made the appropriation. The Determination under s 10 is an allocation of funds already appropriated under s 12. The degree of specificity of purpose for the appropriation is a matter for the parliament. In this case, the appropriation was for an amount for a purpose that the parliament had lawfully decided could be carried out.