Last Thursday the government introduced into Parliament, urgently and without prior consultation, a Bill to amend the law dealing with the persistent sexual abuse of a child.
Those who commit these offences are amongst the most reviled in our community.
These types of offences have sometimes also been difficult to prove as a result of problems associated with children giving accurate evidence of relevant events and times.
The government, through the leadership in this area of the Attorney General, has introduced laws to make it easier for children to give evidence and to not require specific proof as would ordinarily be the case. The Government’s urgency in amending the law was in response to the High Court decision in R v Chiro on 13 September. In this case, allegations against Mr Chiro varied from kissing on the lips to much more serious conduct. He was found guilty of persistent sexual exploitation of the child but the trial Judge did not ask the jury whether, in finding him guilty, it found proven the less or the more serious conduct. The High Court held that the trial Judge erred in not obtaining that detail from the jury and, as a result of the wording of the offence, Mr Chiro must be sentenced on the basis of the factual circumstances most favourable to him.
The outcome reflects two important elements of the law. Firstly, in a trial by jury it is for the jury and not the trial Judge to make the essential findings of fact. Secondly, an accused is entitled to be presumed innocent and it is for the prosecution to prove offending.
The intention of the amendment passed by the Parliament last Thursday is to allow trial Judges in cases like Chiro to make the findings of fact that the High Court has held should be a matter for the jury.
The Parliament urgently passed the amendment because there are other cases where there has been a conviction but the offender is yet to be sentenced. However, there is a good argument that this amendment will not have retrospective effect. Even if it does, we do not know what findings will be made by the trial Judge.
On the basis of the High Court decision, there is a question as to whether this new law stands in conflict with the right of an accused to a trial by jury under our State Juries Act.
The wording of the amendment may also cause some difficulty in interpretation by the courts.
The rush was understandable but, as we all know, mistakes can easily be made when we rush things.