Hamra v The Queen

Case [2017] HCA 38

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
BELL, KEANE, NETTLE AND EDELMAN JJ

STEPHEN JOHN HAMRA  APPELLANT

AND

THE QUEEN  RESPONDENT

Hamra v The Queen

[2017] HCA 38

13 September 2017

A14/2017

ORDER

Appeal dismissed.

On appeal from the Supreme Court of South Australia

Representation

M E Shaw QC with B J Doyle for the appellant (instructed by Woods & Co Lawyers)

C D Bleby SC, Solicitor-General for the State of South Australia with F J McDonald for the respondent (instructed by Director of Public Prosecutions (SA))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Hamra v The Queen

Criminal law – Offence of "[p]ersistent sexual exploitation of a child" – Criminal Law Consolidation Act 1935 (SA), s 50 – Where offence requires prosecution to prove two or more acts of sexual exploitation – Whether generalised nature of complainant's evidence meant that not possible to identify two or more acts of sexual exploitation – Whether no case to answer.

Criminal law – Permission to appeal – Where orders made included granting application for permission to appeal – Whether majority of Court of Criminal Appeal failed to consider question of permission to appeal.

Words and phrases – "acts of sexual exploitation", "distinct occasion", "distinct transaction", "double jeopardy", "extended unanimity", "no case to answer", "particularity", "particulars", "permission to appeal", "persistent sexual exploitation of a child".

Criminal Law Consolidation Act 1935 (SA), s 50.

KIEFEL CJ, BELL, KEANE, NETTLE AND EDELMAN JJ.  

Introduction

  1. The appellant was charged with an offence of persistent sexual exploitation of a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). Section 50 creates an offence where an adult person, "over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age". Sections 50(2) and 50(4) provide that the act of sexual exploitation must be an act in relation to the child of a kind that could be the subject of a charge of a sexual offence, although it is not required to be properly particularised other than as to the period during which the acts of sexual exploitation allegedly occurred and the alleged conduct comprising the acts of sexual exploitation.

  2. At the conclusion of the prosecution case in the South Australian District Court, the trial judge (who heard the case without a jury) heard, and subsequently accepted, a no case submission. The trial judge held that the highly generalised nature of the complainant's evidence meant that it was not possible to identify two or more proved sexual offences within s 50(1). The Full Court of the Supreme Court of South Australia, sitting as the Court of Criminal Appeal, allowed an appeal and remitted the matter for retrial.

  3. By special leave, the appellant relies upon two grounds of appeal.  The first is that the Court of Criminal Appeal erred by concluding that there was a case to answer.…

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AGLC
Hamra v The Queen [2017] HCA 38
Case
[2017] HCA 38
Decision Date

CaseChat Overview and Summary

This case concerned an appeal to the High Court of Australia following a decision by the Court of Criminal Appeal of South Australia. The appellant, Hamra, had been acquitted of the offence of persistent sexual exploitation of a child under section 50 of the *Criminal Law Consolidation Act 1935* (SA) after a trial by judge alone. The trial judge had upheld a "no case to answer" submission, finding the complainant's evidence too generalised to establish two or more distinct acts of sexual exploitation. The prosecution appealed this acquittal.

The central legal issue before the High Court was whether the trial judge erred in finding that the complainant's evidence, taken at its highest, was incapable of sustaining a conviction for persistent sexual exploitation of a child. This required the Court to consider the interpretation of section 50 of the *Criminal Law Consolidation Act*, specifically whether it mandated the particularisation of each distinct act of sexual exploitation, or if a jury could infer the commission of multiple acts from generalised evidence. The Court also considered whether the majority of the Court of Criminal Appeal had adequately addressed the question of permission to appeal.

The High Court reasoned that a "no case to answer" submission should only be upheld if the evidence, taken at its highest, could not lawfully support a guilty verdict. The Court held that section 50 of the *Criminal Law Consolidation Act* did not require the prosecution to particularise each distinct occasion or transaction of sexual exploitation. Instead, it was permissible for a judge or jury to deduce the occurrence of two or more acts through simple logic, provided they reached a unanimous or statutory majority conclusion as to the same acts. The Court found that the complainant's evidence, if believed, was capable of supporting a finding that two or more acts of sexual exploitation had occurred, and therefore a case to answer did exist.

The appeal was dismissed. The High Court affirmed the decision of the majority of the Court of Criminal Appeal, which had quashed the acquittal and remitted the case for a new trial.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

An example which illustrates this point is evidence of a complainant that an act of sexual exploitation was committed every day over a two week period. The appellant submitted that such evidence would be insufficient because, even if the jury (or judge in a trial by judge alone) were to conclude that those acts had occurred in that way, this would invite "deductive reasoning", "rather than identifying an occasion and determining what is the evidence to prove that occasion". In other words, it is impermissible to use logic to deduce from the occurrence of acts of sexual exploitation every day for two weeks that two or more acts must have occurred over a period of "not less than 3 days". The submission cannot be accepted. Neither the common law nor s 50 of the Criminal Law Consolidation Act precludes a judge or jury from deducing a conclusion by simple and obvious logic, provided, of course, that the members of the jury reach the conclusion as to the same two or more acts unanimously, or by a statutory majority where a majority verdict is permitted[24]. [24]Juries Act 1927 (SA), s 57(1).The application of s 50 to the facts The issue before the trial judge raised by the no case to answer submission was "not whether on the evidence as it stands [the appellant] ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted"[25] (emphasis in original). In other words[26]:"if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty."[25]May v O'Sullivan (1955) 92 CLR 654 at 658; [1955] HCA 38. [26]Doney v The Queen (1990) 171 CLR 207 at 214-215; [1990] HCA 51. The evidence of B, taken at its highest, demonstrates that there was a case to answer. The fourth category of alleged acts, concerning the incidents at the house of the appellant's parents in Kurralta Park, can be put to one side. The respondent conceded that there was nothing to link B's evidence about those incidents to a period when B was under 17 years old. The issue, therefore, was whether B's evidence was capable of being believed in respect of each of the alleged acts of sexual exploitation in the first, second, and third categories. It is convenient to commence with the first and second categories of B's evidence, which concerned alleged offending in bedroom three and then bedroom two. The appellant submitted that there was no case to answer in relation to those categories for the following reasons: (i) the bedroom three allegations could not have occurred when B was 12 or 13 because B's family only met the appellant after he finished his teaching studies in 1978, and B turned 14 on 1 November 1979; (ii) the allegations concerned undifferentiated offending and were therefore incapable of constituting the s 50 offence; and (iii) taking the evidence at its highest, it was not open to conclude beyond reasonable doubt that any of the bedroom two allegations occurred before B turned 17. Each of these submissions should be rejected.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KIEFEL CJ, BELL, KEANE, NETTLE AND EDELMAN JJ
Fourthly, B gave evidence of occasions when he stayed at the house of the appellant's parents in Kurralta Park. The appellant drove him to the Kurralta Park house and he stayed there overnight several times. On a couple of those occasions the appellant caused mutual touching of his and B's genitals until ejaculation. Again, B described the manner of these incidents in detail. The decisions below At the conclusion of the prosecution case, counsel for the appellant made a no case to answer submission. The trial judge accepted the submission and delivered a verdict of not guilty. His Honour found that B's evidence, taken at its highest, was highly generalised and non-specific as to times and dates. The trial judge held that B had been unable to relate any incident to any particular occasion, circumstance or event beyond "what typically or routinely or generally occurred" so that it was impossible to identify two or more of the requisite acts[2]. [2]R v Hamra (No 2) [2016] SADC 8 at [27]. The prosecution appealed to the Full Court of the Supreme Court of South Australia sitting as the Court of Criminal Appeal. The Court of Criminal Appeal held, and there is now no dispute, that the Crown had the power to appeal from an acquittal in a trial by a judge alone[3]. The central issue concerned the construction and application of s 50 of the Criminal Law Consolidation Act.[3]R v Hamra (2016) 126 SASR 374 at 380-383 [18]-[29]. In the Court of Criminal Appeal the majority – Kourakis CJ, with whom Kelly, Nicholson and Lovell JJ agreed – held that the primary judge erred in directing himself that B's evidence was not capable of proving the commission of two or more acts of sexual exploitation over a period of three days or more. The Chief Justice held that s 50 did not require evidence which allowed the occasion of each act of sexual exploitation to be identified in such a way that it was distinguished from other acts of sexual exploitation[4]. He concluded that B's evidence concerning the conduct in bedroom two and bedroom three, as well as the incidents while B's parents were in Fiji, if believed, was capable of proving the commission of two or more acts of sexual exploitation[5]. The application for permission to appeal was granted; the appeal was allowed and the verdict of acquittal quashed; and the case was remitted for a new trial, with the decision left to the District Court as to whether the new trial would be before the same judge or a different judge of the District Court[6]. [4]R v Hamra (2016) 126 SASR 374 at 389 [47].[5]R v Hamra (2016) 126 SASR 374 at 390 [52].[6]R v Hamra (2016) 126 SASR 374 at 393 [66]. Peek J agreed with the majority that the trial judge erred in finding that there was no case to answer[7]. However, his Honour would have ordered that the matter be remitted back only to the trial judge "with a direction to further hear and determine the case according to law"[8]. He reached this conclusion in the course of considering the submission by the appellant that permission to appeal should not be granted having regard to considerations of double jeopardy and the alleged weakness of the case against the appellant[9]. [7]R v Hamra (2016) 126 SASR 374 at 407 [112].[8]R v Hamra (2016) 126 SASR 374 at 413 [132], [134].[9]R v Hamra (2016) 126 SASR 374 at 409-411 [117]-[121].The operation of s 50 of the Criminal Law Consolidation Act

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, BELL, KEANE, NETTLE AND EDELMAN JJ

Peek J agreed with the majority that the trial judge erred in finding that there was no case to answer[7]. However, his Honour would have ordered that the matter be remitted back only to the trial judge "with a direction to further hear and determine the case according to law"[8]. He reached this conclusion in the course of considering the submission by the appellant that permission to appeal should not be granted having regard to considerations of double jeopardy and the alleged weakness of the case against the appellant[9]. [7]R v Hamra (2016) 126 SASR 374 at 407 [112].[8]R v Hamra (2016) 126 SASR 374 at 413 [132], [134].[9]R v Hamra (2016) 126 SASR 374 at 409-411 [117]-[121].The operation of s 50 of the Criminal Law Consolidation Act The essence of the appellant's submission concerning the construction of s 50 of the Criminal Law Consolidation Act is that s 50 does not ameliorate the requirement that the State must prove, and therefore that the evidence must be capable of particularising, a "distinct occasion" or "distinct transaction" constituting each alleged sexual offence. The appellant referred to passages from the reasons of Dixon J in Johnson v Miller[10], that an accused is "entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge". Consistently with these reasons, the appellant submitted that it was necessary that each "occurrence or transaction, the subject of the charge ... be identified and distinguished from other occurrences or transactions alleged to have occurred"[11]. The appellant also referred to the judgment in that case of Evatt J, who said that it is "of the very essence of the administration of criminal justice that a defendant should, at the very outset of the trial, know what is the specific offence which is being alleged against him"[12]. [10](1937) 59 CLR 467 at 489; [1937] HCA 77.[11]Johnson v Miller (1937) 59 CLR 467 at 490.[12]Johnson v Miller (1937) 59 CLR 467 at 497. The appellant relied upon the application of these principles by this Court in S v The Queen[13].In that case, S was convicted of three counts of carnal knowledge of his daughter. Each count had charged one act of carnal knowledge on a date unknown. The three counts specified separate periods of 12 months within which each offence was alleged to have occurred. The complainant gave evidence of two acts of sexual intercourse but there was no evidence to link those acts to any of the periods. She also gave evidence that sexual intercourse occurred "every couple of months for a year" during a two year period before she left home at 17. A majority of the Court allowed the appeal. Gaudron and McHugh JJ relied upon Johnson v Miller and said[14]:"The evidence of a number of offences said to have been repeated at two-monthly intervals over a period of one year (which period might fall anywhere within a period of almost three years) had the same practical effect that was noted by Evatt J in relation to the course proposed in Johnson v Miller. Effectively, the applicant was required to defend himself in respect of each occasion when an offence might have been committed. Additionally, by reason that the offences were neither particularized nor identified, the accused was effectively denied an opportunity to test the credit of the complainant by reference to surrounding circumstances such as would exist if the acts charged had been identified in relation to some more precise time or by reference to some other event or surrounding circumstance." (emphasis in original)[13](1989) 168 CLR 266; [1989] HCA 66.[14]S v The Queen (1989) 168 CLR 266 at 286.