Hamra v The Queen; DL v The Queen - [2017] HCATrans 77

[2017] HCATrans 077

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A6 of 2017

B e t w e e n -
STEPHEN JOHN HAMRA
Applicant
and
THE QUEEN
Respondent

Office of the Registry
Adelaide No A45 of 2016

B e t w e e n -
DL
Applicant
and
THE QUEEN
Respondent
Applications for special leave to appeal

NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 7 APRIL 2017, AT 9.31 AM

____________________

MS M.E. SHAW, QC: If the Court pleases, I appear with my learned friend, MR B.J. DOYLE for the applicant in the matter of Hamra and DL. (instructed by Woods & Co Lawyers)

MR C.D. BLEBY, SC, Solicitor‑General for the State of South Australia: May it please the Court, I appear with my learned friend, MS F.J. McDONALD in the matter of Hamra, and with MR B. LODGE in the matter of DL. (instructed by Director of Public Prosecutions (SA))

NETTLE J: Yes, Ms Shaw.

MS SHAW: If the Court pleases, turning to the matter of Hamra, your Honours, the grounds upon which we seek special leave at application book 77 are grounds 1 and 2(b) that we submit arise from two errors by his Honour the Chief Justice in his judgment with whom Justices Kelly, Nicholson and Lovell agreed.

Firstly, the Chief Justice ruled at application book 45, paragraph 43 that in a case involving section 50 of the Criminal Law Consolidation Act 1935 (SA) “neither the elements of the offence” nor any of the consideration – any other consideration requires “the occasion on which” each of the two or more requisite acts of sexual exploitation was committed:

to be identified in a way which distinguishes it from other acts of sexual exploitation.

Secondly, we submit, his Honour failed to address whether it was appropriate to grant permission to appeal to the Crown against acquittal following the trial judge’s finding that he was not able to distinguish particular occasions beyond what typically or routinely or generally was alleged to have occurred, referring to the trial judge’s findings at application book 23, paragraph 27, and that, therefore, there was not a case to answer.

NETTLE J: Ms Shaw, is ground 1 any different in point of substance to the issue in Chiro in which we granted special leave some time back?

MS SHAW: It overlaps, your Honour. In other words, it ‑ ‑ ‑

GORDON J: What is the difference?

MS SHAW: The difference in Chiro is that the application focused on the directions to the jury and whether a special verdict was required, but at the end of the day the issue of the construction of section 50 is common, that is, in Chiro it was construed by the Court of Appeal as enabling the trial judge to make findings on all of the facts and, therefore,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Hamra v The Queen; DL v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] HCATrans 77
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered applications for special leave to appeal in two matters, *Hamra v The Queen* and *DL v The Queen*. The central dispute concerned the interpretation of section 50 of the *Criminal Law Consolidation Act 1935* (SA), which deals with sexual exploitation offences. The applicants argued that the Chief Justice of the South Australian Supreme Court erred in his interpretation of this section, which had been affirmed by a majority of the Court of Appeal.

The legal issues before the High Court were whether section 50 of the *Criminal Law Consolidation Act 1935* (SA) requires the identification of specific occasions on which sexual exploitation acts were committed, or if a more generalised allegation of such conduct is permissible. Further, the Court was asked to consider whether the Chief Justice erred in granting permission to the Crown to appeal against an acquittal, particularly in circumstances where the trial judge found the evidence insufficient to distinguish particular occasions of offending. The applicants contended that the Chief Justice's interpretation departed from established High Court authority and prior South Australian Court of Appeal decisions.

The applicants argued that section 50, when read in conjunction with High Court decisions such as *KBT v The Queen* and *KRM v The Queen*, necessitates proof of distinct sexual offences, not merely a general course of illegitimate sexual conduct. They submitted that the Chief Justice's approach, which focused on the perceived mischief of the section, effectively altered the substantive elements of the offence by relaxing the requirement for particularity in proof, contrary to established principles. The Crown, however, argued that section 50(4) expressly permits a less particularised form of charging and proof, signalling a departure from common law requirements regarding time, place, and order of acts, and that this amelioration of charging requirements necessarily extends to proof. The Crown further contended that prior jurisprudence concerning extended unanimity directions related to the elements of the offence and did not preclude the less particularised proof regime contemplated by section 50.

The High Court granted special leave to appeal in *Hamra v The Queen*, noting that the issues raised were of general importance and had led to inconsistent holdings within the South Australian Court of Appeal. The Court indicated that if *Hamra* were resolved in favour of the applicant, it would likely resolve the issues in *DL v The Queen* as well. The Court also considered an amendment to the grounds of appeal in *Hamra* to refine the articulation of the legal question.

Orders