The offence of "persistent sexual abuse of a child under the age of 16" is currently located in Crimes Act 1958 s49J. This provision was introduced on 1 July 2017.
Prior to 1 July 2017, the offence was found in Crimes Act 1958 s47A.
Crimes Act 1958 s47A commenced operation on 5 August 1991. It was enacted to overcome problems that can arise when a young child, who has been the subject of repeated sexual abuse by the same person over a lengthy period, is unable to identify with any precision the occasions upon which particular sexual acts occurred (R v Macfie  VSCA 173).
The provision was amended in 1997. This amendment removed the requirements that:
The child have been under the care, supervision or authority of the accused; and
The prosecution prove at least three sexual offences of the same kind.
The amendment also amended the requirement for particulars. Prior to the amendment, s47A(3) specified that “it is not necessary to prove the dates or the exact circumstances of the alleged occasions”. Under the 1997 amendments, this was replaced with:
It is not necessary to prove an act referred to in sub-section (2)(a) or (b) with the same degree of specificity as to date, time, place, circumstances or occasion as would be required if the accused were charged with an offence constituted by that act instead of an offence against sub-section (1).
The 1997 modifications commenced operation on 1 January 1998. The removal of the requirement that the child was under the care, supervision or authority of the accused only applies to acts committed on or after that date (Crimes Act 1958 s587(3)). The removal of the requirement that the sexual offences were of the same kind, and the changes to s47A(3) concerning the degree of particulars required, apply to all offences where the charge is filed on or after 1 January 1998, regardless of when the offence is alleged to have been committed (Crimes Act 1958 s587(5)).
For the purpose of s587(3), if an offence is alleged to have been committed between dates, one date before and one date on or after 1 January 1998, the offence should be treated as having been committed before 1 January 1998 (Crimes Act 1958 s587(4)).
Section 47A was further amended on 1 December 2006. These amendments modified the description of the offence, but not its elements. Previously, the offence was called "maintaining a sexual relationship with a child under the age of 16". By the 2006 amendment, the offence was renamed to its current name of "persistent sexual abuse of a child under the age of 16". This "name-change" applies only to offences committed on or after 1 December 2006 (Crimes Act 1958 s606A). Unless otherwise indicated, references below to the new offence name apply also to the original offence.
The section was further amended on 22 October 2014, to remove the requirement that the child was not married to the accused. This applies only to offences committed on or after that date (Crimes Amendment (Sexual Offences and Other Matters) Act 2014 s5).
On 1 July 2017 the Crimes Amendment (Sexual Offences) Act 2016 commenced operation. This Act repealed section 47A and replaced it with the offence in section 49J.
This topic describes the elements of both the former section 47A offence and the current section 49J offence.
The elements – Pre 1 July 2017
Prior to 1 July 2017, persistent sexual abuse of child under the age of 16 has the following two elements:
On at least three occasions the accused committed acts which would constitute an offence under a provision of Subdivisions 8A, 8B or 8C of the Crimes Act;
These acts were committed against a child who was under the age of 16 at the time.
For offences alleged to have been committed prior to 22 October 2014, there is a third element:
The accused was not married to the child at the relevant time.
The offences specified in Subdivisions 8A, 8B or 8C are:
Indecent Assault (s39);
Assault with Intent to Rape (s40);
Sexual Penetration of a Child Under 16 (s45);
Indecent Act with a Child Under 16 (s47);
Sexual Penetration of a 16 or 17 Year Old Child (s48);
Indecent Act with a 16 or 17 Year Old Child (s49); and
Facilitating Sexual Offences Against Children (s49A).
Prior to 1 December 2006 s47A(1) stated that a person who "maintains a sexual relationship" with a child is guilty of an offence. However, the actus reus of the offence was never the maintenance of a sexual relationship with a child. It has always been (in this respect) the commission of the acts outlined above (KBT v R (1997) CLR 417; KRM v R (2001) 206 CLR 221; R v GJB (2002) 4 VR 355).
It is therefore not necessary for the prosecution to prove that there was a "relationship" between the accused and the child; that the relationship was a sexual one; that the relationship was "maintained" over a period of time; or that the accused intended that the sexual behaviour would be ongoing. The prosecution merely needs to prove the commission of offences of the specified type on at least three occasions (R v KRM (1999) 105 A Crim R 437; R v Macfie  VSCA 173; R v Sobevski (2004) 150 A Crim R 355).
The elements – Post 1 July 2017
Under section 49J(1), the offence consists of two elements:
(a) A sexually abuses another person (B) on at least 3 occasions during a particular period; and
(b) B is a child under the age of 16 years during the whole of that period.
The term "sexually abuses" is defined in s49J(5) as conduct that would involve the commission by A of any of the following-
(a) An offence against a provision of Subdivision (8A) (rape, sexual assault and associated sexual offences);
(b) An offence against section 49A(1) (sexual penetration of a child under the age of 12);
(c) An offence against section 49B(1) (sexual penetration of a child under the age of 16);
(d) An offence against section 49D(1) (sexual assault of a child under the age of 16);
(e) An offence against section 49F(1) (sexual activity in the presence of a child under the age of 16);
(f) An offence against section 49H(1) (causing a child under the age of 16 to be present during sexual activity);
(g) An offence against a provision of Subdivision (8C) (incest).
The effect of this revised list is to:
update the list to include newly defined offences such as causing a child under 16 to be present during sexual activity;
remove the superfluous references to sexual offences against children aged 16 or 17 from the list of notionally available offences; and
remove the facilitation offence (now located in s49S) from the list of included offences.
The new definition of the offence also states in clearer language that the child must be under the age of 16 for the whole of the period of the offending. Otherwise, the principles established in relation to the old Crimes Act 1958 s47A offence continue to apply to the operation of the new s49J.
Proof of at least three acts
The prosecution must prove that on at least three occasions while the complainant was under the age of 16 the accused committed acts of the relevant kind (s47A(2), s49J(1)).
It is no longer necessary that the acts committed be of a similar nature or constitute an offence under the same provision (s47A(2A), s49J(3)). It is therefore possible for a jury to convict an accused if, for example, they find that the accused sexually or indecently assaulted a child on one occasion, sexually penetrated them on another, and committed an indecent act with them (or engaged in sexual activity in their presence) on a third occasion.
It is not necessary to prove these acts "with the same degree of specificity as to date, time, place, circumstances or occasion" as would be required if the accused were charged with other offences constituted by those acts (s47A(3), s49J(4)).
While s47A(3) and s49J(4) reduces the specificity with which the relevant acts must be proved, they do not detract from the need to prove the actual commission of acts which constitute the specified sexual offences on at least three occasions.
The precise effect of the High Court’s decision in Hamra v R  HCA 38 on this requirement remains uncertain.
Prior to Hamra, courts held that the charge cannot be proved by a blanket assertion that on three or more occasions the accused committed one of the specified offences against the complainant (KBT v R (1997) CLR 417; KRM v R (2001) 206 CLR 221; R v SLJ (2010) 24 VR 372; REE v R  VSCA 124).
The prosecution must therefore still prove the circumstances or occurrences surrounding each of the acts in sufficient detail to identify each "occasion" (R v SLJ (2010) 24 VR 372; REE v R  VSCA 124; R v Sobevski (2004) 150 A Crim R 355; KRM v R (2001) 206 CLR 221 per McHugh and Kirby JJ, cf. Hayne J).
As this issue is so fundamental, the prosecution should clearly identify the evidence to be relied upon to prove the three occasions well ahead of the trial (REE v R  VSCA 124).
Reference to circumstances or occurrences happening at a particular time is the usual way of describing an "occasion" (KRM v R (2001) 206 CLR 221 per McHugh and Kirby JJ; R v SLJ (2010) 24 VR 372).
The critical question is not whether acts of the kind alleged would, if proved to have occurred, have constituted three or more of the relevant types of sexual offence. The question is whether the evidence in question proves, beyond reasonable doubt, that the applicant had on three occasions – identified with "some specificity" – done an act which constituted a relevant sexual offence (R v SLJ (2010) 24 VR 372; REE v R  VSCA 124).
Repeated references to what the accused "would always" or "would normally" do, in which the complainant is giving an account of what typically or routinely occurred, will not be sufficient. There must be something that distinguishes one occasion from another (R v SLJ (2010) 24 VR 372).
Where many occasions of sexual offending have been alleged, it is not sufficient for the prosecution to identify a first and a last occasion with specificity, and identify the third occasion as being "the next occasion after the first". All three occasions must be identified with specificity (REE v R  VSCA 124).
If the prosecution cannot give particulars sufficient to identify each of the three occasions relied on to constitute the charge, in the absence of some special factor the proper course will be to stay the proceedings on this charge (KRM v R (2001) 206 CLR 221 per McHugh J).
Effect of Hamra
Hamra v R  HCA 38 concerned the South Australian equivalent to s49J, which requires proof of two or more acts which constitute a specified offence, separated by at least three days. In the course of the judgment, the Court held that:
A jury could infer using deductive reasoning that the necessary number of acts and period of time where the complainant gave evidence of sexual exploitation every day over a two week period, or every weekend over a two month period, without identifying particular occasions (at , )
The Act does not always require evidence which allows acts of sexual exploitation to be delineated by reference to differentiating circumstances (at ).
The conclusion that a jury could find the offence proved if satisfied that relevant offences were committed every weekend for a period of two months without differentiating the particular occasions is difficult to reconcile with the principles outlined in R v SLJ (2010) 24 VR 372 and REE v R  VSCA 124 that the occasions of each offence must be sufficiently specified.
Because the matter was not argued, it is not known whether s49J is relevantly similar to s50 of the Criminal Law Consolidation Act 1935 (SA) such that previous Victorian decisions on s47A and s49J have been qualified or overruled.
In the South Australian Court of Criminal Appeal, Kourakis CJ had noted that the Victorian provision refers to “occasions”, whereas the South Australian provision contemplates that it may not be possible to particularise an occasion sufficiently (R v Hamra (2016) 126 SASR 374 at ). However, this passage was not considered or referred to by the High Court and neither was the earlier High Court decision KRM v R (2001) 206 CLR 221, which had considered the Victorian provision.
In obiter remarks made in an appeal against sentence for incest decided after Hamra, the Court of Appeal stated the Victoria offence requires proof of three distinct occasions and that a complainant cannot give evidence of what would typically or routinely occur (McCray v R  VSCA 340 at ).
Judges should therefore be circumspect about the possible relevance of Hamra to this offence and the prudent course is to treat Hamra as irrelevant to the Victorian legislation.
Extended unanimity requirement
Where there is evidence a relevant offence was committed on more than three occasions, it will be necessary to direct the jury specifically about the way in which the requirement for unanimity works in this context. In such a case, it is not sufficient for the jury simply to agree that a relevant offence was committed on at least three occasions. They must be in agreement about the three occasions on which a relevant offence was committed. This is known as the requirement for ‘extended unanimity’ (KBT v R (1997) CLR 417; R v KRM (1999) 105 A Crim R 437; R v Sobevski (2004) 150 A Crim R 355; REE v R  VSCA 124; Chiro v R  HCA 37).
Similarly, if there is evidence that more than one relevant offence was committed on any of the alleged occasions, the jury will need to agree about which of those offences the accused committed, rather than simply agreeing that the accused committed a relevant offence on three or more occasions (KBT v R (1997) CLR 417; R v KRM (1999) 105 A Crim R 437; R v Sobevski (2004) 150 A Crim R 355).
It is therefore necessary for a judge to make clear to the jury that:
They have to be agreed about the occasions on which the accused committed a relevant offence; and
They have to be agreed about the offences committed on those occasions.
The judge should also make clear which alleged acts and occasions the prosecution relies on to prove the offence (R v Sobevski (2004) 150 A Crim R 355).
In relation to similar South Australian legislation, the High Court has held that in the event of a guilty verdict, the judge should usually ask the jury to specify which of the particularised offences have been proved beyond reasonable doubt. This unusual process is a consequence of the extended unanimity requirement and the fact that the actus reus of this offence is the commission of other offences (Chiro v R  HCA 37 at -, -).
This process of asking the jury to specify the occasions which they found proved does not involve the jury returning a special verdict. A special verdict would involve the jury making pure findings of fact concerning proof of individual occasions, which the court would convert to a general verdict. In contrast, under the process discussed in Chiro, the jury returns a general verdict of guilty, and is only expected to specify which occasions were proved after they return that verdict (see Chiro v R  HCA 37 at , [32).
Without information from the jury on the nature of its verdict, a judge must sentence on the basis that the jury had convicted the accused of the minimum number of the least serious offences which the prosecution alleged (Chiro v R  HCA 37 at -).
A jury should therefore be informed during directions that they will be asked to identify the occasions proved (Chiro v R  HCA 37 at , ).
A jury cannot be compelled to provide this information, or continue to deliberate to identify additional proved occasions after reaching the minimum necessary to give a verdict (Chiro v R  HCA 37 at , ). However, the judge should inform the jury that the information sought will help the judge give effect to the jury’s verdict.
Sections 47A(5) and 49J(7) specifically provide that where a jury is not satisfied of the persistent sexual abuse offence but is satisfied that the accused engaged in conduct during the qualifying period that constitutes one or more qualifying offences, then the jury must find the accused not guilty of the persistent sexual abuse offence and may find the accused guilty of one or more instances of a qualifying offence (Crimes Act 1958 s47A(5), 49J(7)).
Where the prosecution alleges that the accused committed an offence against s47A or s49J, and further alleges that, during the same period, s/he committed specific qualifying offences, the specific qualifying offences averred must be treated as particulars of, and alternatives to, the offence of persistent sexual abuse. A person must not be convicted of both an offence against s47A or s49J and the specific offences which are relevant to proving that offence (R v GJB (2002) 4 VR 355; R v Sobevski (2004) 150 A Crim R 355).
This is because the offence created by s47A and s49J subsumes within its requirement of proof of "at least" three relevant acts all of the acts done by the accused in relation to the child during the period of the relationship which are offences of the relevant kind. Every such act committed within the specified period is capable of being relied upon by the prosecution to prove the offence, and must necessarily be an ingredient or particular of that offence (R v GJB (2002) 4 VR 355).
The s47A or s49J charge must therefore not be confined to some of the acts allegedly committed by the accused during the relevant period, with other acts alleged to have been committed by the accused during that period charged as substantive offences punishable independently (R v GJB (2002) 4 VR 355; R v RNT  VSCA 137).
This does not mean that the offences that the prosecution relies upon to establish a count of persistent sexual abuse cannot be charged separately. It merely means that when charged separately, such counts must be regarded as alternatives to the more general s47A or s49J charge, of which they can be seen to be particulars (R v Menta  VSCA 57. See also s47A(5) and s49J(7)).
Other Directions and Warnings
The fact that it is possible for the jury to convict on the basis of acts which have not been specified with a high degree of particularity creates the potential for unfairness to the accused, who may find it difficult to defend against the allegations. It is therefore important that the trial judge’s summing-up include whatever directions are necessary to ensure that the accused’s trial is fair (KRM v R (2001) 206 CLR 221 per Kirby J; R v Kemp (No.2)  2 Qd R 510).
This may include addressing the special risk of unfairness that arises from the generalised nature of the allegations, and the difficulties confronting an accused person in meeting such allegations (KRM v R (2001) 206 CLR 221 per Gummow and Callinan JJ; R v Kemp (No.2)  2 Qd R 510).