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7.3.22.1 – Charge: Persistent Sexual Abuse of a Child (From 1/7/17)

Click here to obtain a Word version of this document for adaptation.

Warning! This charge is currently under review following Chiro v The Queen [2017] HCA 37 and Hamra v The Queen [2017] HCA 38.

I must now direct you about the crime of persistent sexual abuse of a child under 16. To prove this crime, the prosecution must prove the following 2 elements beyond reasonable doubt:

One - the complainant, NOC, was under the age of 16 between [insert dates alleged in the count]. In this case, there is no dispute that NOC was under 16 during this period.[1]

Two - on at least three occasions between [insert dates alleged in the count] the accused committed the offence[s] of [insert relevant offences] in relation to the complainant.[2] I will explain the meaning of [this offence/ these offences] in a moment.

It is the commission of [this offence/ these offences] on at least three occasions that constitutes the "persistent sexual abuse" referred to in the name of this offence. NOA will therefore be guilty of this offence if the prosecution has proved, beyond reasonable doubt, that on at least three occasions during the relevant period, [he/she] committed [this offence/ these offences] in relation to a child under the age of 16.

[If different types of offences have been alleged, add the following shaded section.]

The offences do not have to be of the same type. That is, you do not need to find that the accused committed three acts of [insert one relevant offence] or three acts of [insert another relevant offence] for this element to be met. The element will be satisfied if, on at least three occasions, the accused committed any of the relevant offences – for example, [insert one relevant offence] on one occasion, and [insert another relevant offence] on two other occasions.

Elements of the constituting offence[s]

[Insert elements of the relevant offence[s] and apply to the facts in issue.]

Specificity of "occasions"

This offence is a little unusual. Ordinarily, the prosecution will need to provide specific details of the offence alleged, such as when and where it took place. However, the law says that this is not necessary in relation to the offence of persistent sexual abuse of a child under 16.

This does not mean that you can convict the accused simply because you believe that, on at least three occasions between [insert dates], they committed [insert relevant offences]. The prosecution must still prove, beyond reasonable doubt, that there were three separate occasions on which NOA committed such an offence, even if they cannot provide precise details about those occasions.

In this case, the prosecution alleged that the offences occurred on the following occasions: [insert details of the occasions alleged to provide the basis of the offence].

Special Directions

[Insert any directions or warnings necessary in accordance with Jury Directions Act 2015 Part 3.]

Need for Unanimity

[The need for a specific direction[3] about the requirement for unanimity in the context of this offence, and the content of that direction, will depend on the number of occasions and the number of offences raised by the evidence in the case. Four possible situations may arise:

  1. There is evidence that relevant offences were committed on only three occasions, and for each of those occasions there is evidence of only one relevant offence having been committed;
  2. There is evidence that relevant offences were committed on only three occasions, but there is evidence that on one [or more] of those occasions more than one relevant offence was committed;
  3. There is evidence that relevant offences were committed on more than three occasions, but on each of those occasions there is evidence of only one offence having been committed; and
  4. There is evidence that relevant offences were committed on more than three occasions, and there is evidence that on one [or more] of these occasions more than one relevant offence was committed.

There is no need for a specific unanimity direction in relation to the first situation (although a general direction about unanimity will still be required), but a direction will be necessary for each of the other circumstances. The appropriate direction should be selected from the shaded sections below.]

[If there is evidence that relevant offences were committed on only three occasions, but there is evidence that on one [or more] of those occasions more than one relevant offence was committed, add the following shaded section.]

I have told you that for this second element to be met, you must be satisfied that, on at least three occasions, the accused committed [insert relevant offences]. In this case, the prosecution alleged that NOA committed a number of offences on [one of/ some of/ each of] those three occasions. [Outline the alleged offences.]

You do not need to find that the accused committed all of these offences. This element will be satisfied even if you determine that NOA committed just one offence on three separate occasions.

However, you must all be in agreement about the three offences committed by NOA. It is not, for example, sufficient for some of you to decide that on [insert occasion][he/she] committed [insert offence], and for others to decide that on that occasion [he/she] committed [insert different offence].

For this second element to be met, you must all be in agreement about the offence or offences committed on each of the three alleged occasions.

If you find NOA guilty of this offence, I will ask you, after you deliver your verdict, to tell the court which offences you found proved on each occasion. To help you with this, my associate has given you a document that lists the offences alleged. For each offence, please select “proved” or “not proved”, depending on what you all agree has been proved beyond reasonable doubt. This will help the court to give effect to your verdict. I will only ask for this document if you find NOA guilty of this offence.

[If there is evidence that relevant offences were committed on more than three occasions, but on each of those occasions there is evidence of only one offence having been committed, add the following shaded section.]

I have told you that for this second element to be met, you must be satisfied that, on at least three occasions, the accused committed [insert relevant offences]. In this case, the prosecution alleged that NOA committed such an offence on more than three occasions. [Outline the alleged occasions.]

You do not need to find that the accused committed offences on all of these occasions. This element will be satisfied even if you determine that NOA committed [insert relevant offences] on only three of those occasions.

However, you must all be in agreement about the occasions on which NOA committed such an offence. It is not sufficient for some of you to decide that [he/she] committed an offence on three particular occasions, such as [insert examples from evidence],while others determine that [he/she] committed an offence on a different three occasions, such as [insert examples from evidence].

For this second element to be met, you must all be in agreement that NOA committed [insert relevant offences] on the same three occasions.

If you find NOA guilty of this offence, I will ask you, after you deliver your verdict, to tell the court which offences you found proved. To help you with this, my associate has given you a document that lists the occasions alleged. For each offence, please select “proved” or “not proved”, depending on what you all agree has been proved beyond reasonable doubt. This will help the court to give effect to your verdict. I will only ask for this document if you find NOA guilty of this offence.

[If there is evidence that relevant offences were committed on more than three occasions, and there is evidence that on one [or more] of these occasions more than one relevant offence was committed, add the following shaded section.]

I have told you that for this second element to be met, you must be satisfied that, on at least three occasions, the accused committed [insert relevant offences]. In this case, the prosecution alleged that NOA committed such an offence on more than three occasions. [Outline the alleged occasions.]

You do not need to find that the accused committed offences on all of these occasions. This element will be satisfied even if you determine that NOA committed [insert relevant offences] on only three of those occasions.

However, you must all be in agreement about the occasions on which NOA committed such an offence. It is not sufficient for some of you to decide that [he/she] committed an offence on three particular occasions, such as [insert examples from evidence],while others determine that [he/she] committed an offence on a different three occasions, such as [insert examples from evidence].

The prosecution also alleged that NOA committed a number of offences on [one of/ some of/ each of] those occasions. [Outline the alleged offences.]

Again, you do not need to find that the accused committed all of these offences. This element will be satisfied even if you determine that NOA committed just one offence on three separate occasions.

However, you must also all be in agreement about the three offences committed by the NOA. It is not, for example, sufficient for some of you to decide that on [insert occasion][he/she] committed [insert offence], and for others to decide that on that occasion [he/she] committed [insert different offence].

So for this second element to be met, you must all be in agreement about the three occasions on which NOA committed [insert relevant offences], and you must also be in agreement about the offence [he/she] committed on those occasions.

If you find NOA guilty of this offence, I will ask you, after you deliver your verdict, to tell the court which offences you found proved on each occasion. To help you with this, my associate has given you a document that lists the offences and occasions alleged. For each offence, please select “proved” or “not proved”, depending on what you all agree has been proved beyond reasonable doubt. This will help the court to give effect to your verdict. I will only ask for this document if you find NOA guilty of this offence.

Summary

To summarise, before you can find NOA guilty of persistent sexual abuse of a child under the age of 16, the prosecution must prove to you beyond reasonable doubt:

If you find that either of these elements have not been proven beyond reasonable doubt, then you must find NOA not guilty of persistent sexual abuse of a child under the age of 16.

Last updated: 30 November 2017

Notes

[1] - If the complainant’s age is disputed, this section of the charge will need to be modified accordingly.

[2] - The offences that can establish a count of persistent sexual abuse of a child under 16 are offences against a provision of Subdivision (8A) (rape, sexual assault and associated sexual offences), sexual penetration of a child under 12 (s49A(1)), sexual penetration of a child under 16 (s49B(1)), sexual assault of a child under 16 (s49D(1)), sexual activity in the presence of a child under 16 (s49F(1)), causing a child under 16 to be present during sexual activity (s49H(1)), incest (Subdivision (8C)).

[3] - Note that a general direction about the requirement for unanimity will always be required. See Unanimous and Majority Verdicts.

See Also

7.3.22 - Persistent sexual abuse of a child (From 1/7/17)

7.3.22.2 - Checklist: Persistent Sexual Abuse of a Child (From 1/7/17)

7.3.22.3 – Charge: Persistent Sexual Abuse of Child Under 16 (22/10/14 - 30/6/17)

7.3.22.4 – Checklist: Persistent Sexual Abuse of a Child under 16 (22/10/14 – 30/6/17)

7.3.22.5 - Charge: Persistent Sexual Abuse of Child Under 16 (1/12/06 - 21/10/14)

7.3.22.6 - Checklist: Persistent Sexual Abuse of a Child under 16 (1/12/06 - 21/10/14)

7.3.22.7 - Charge: Maintaining a sexual relationship with a child under 16 (5/8/91 – 30/11/06)

7.3.22.8 – Checklist: Maintaining a sexual relationship with a child under 16 (5/8/91 – 30/11/06)

7.3.22.9 – Jury handout: Identifying occasions for persistent sexual abuse of a child under 16