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

Copyright in the High Court of Australia

____________________

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, dealt with section 50 once only two offences have been left as permitting that course.  It was not necessarily directly a focal point that you had to separate two offences because, indeed, the trial judge had done that in that case.  What this case ‑ ‑ ‑

NETTLE J:   So we would need to deal with both Chiro and Hamra to resolve all of those issues?

MS SHAW:   Yes, we would.

NETTLE J:   What about DL, that would be covered, in effect, would it not, by what is in Chiro?

MS SHAW:   And in Hamra.

NETTLE J:   And in Hamra?

MS SHAW:   Yes, because DL is the same issue in Hamra.  In Hamra his Honour holds you do not have to differentiate between two occasions, you can simply allege generalised illegitimate sexual conduct.  In DL that is what the judge did and the Court of Appeal upheld it.

NETTLE J:   If we were to grant special leave in Hamra, there would be no need to grant special leave, at least for the time being, in DL, would there?

MS SHAW:   As long as we were not prejudiced by that, your Honour.  It is just that the trial judge in DL did not make any findings at all in relation to sexual offences.  So, we would submit that if we are correct in our application in Hamra then the result in DL would follow in our favour.

GORDON J:   Can I ask you a question about your proposed ground 1?  Is the phrase “unrelated to any particular occasion” in the third line necessary and/or too narrow, having regard to the way in which the trial judge dealt with it at paragraph 43 on page 45 of the application book and the Chief Justice then dealt with it – sorry, I withdraw that – at page 23 the trial judge dealt with it at paragraph 27 and then the Chief Justice at paragraph 43 on page 45?  In other words, it seems to me that the ground is probably better identified with that phrase taken out, having regard to the terms of section 50.

MS SHAW:   We would take on board any suggestions that would improve our ground, your Honour.

GORDON J:   Well, it is not a question of improving, it is a question to make sure that what is set out in section 50, having regard to the manner in which it might be particularised, extends beyond just the occasion.

NETTLE J:   Do you agree with that, take out the clause “unrelated to any particular occasion”?

MS SHAW:   Yes.  We seek to make that alteration.

NETTLE J:   Hamra is a decision of a five judge Court of Criminal Appeal which should be taken ordinarily to have authoritatively resolved the law on this question in South Australia.  Why then is it of sufficient, general importance to warrant special leave?

MS SHAW:   Your Honours, because – your Honours will see from application book 110 of our application book that, in fact, it has been the subject at paragraph 8 that there have been inconsistent holdings by the Court of Appeal on this topic. 

GORDON J:   But none of those are five judge cases, are they?

MS SHAW:   Not identified there but R v Little is a five judge case.  R v Little was a case where the court sat to determine the conflict between R v M, BJ, a decision where her Honour Justice Vanstone held that section 50 was, in fact, a provision that needed to apply the principles of this Court in KBT and KRM and why it was necessary to identify separate occasions.

Subsequently, there was a decision of our Full Court in R v C, G where the court held the opposite and R v Little held that R v M, BJ was correct.  That was a five member court.  Following Little, a five member court, there was a decision in Johnson which was a unanimous court, also holding that it was necessary to identify separate occasions and applying KBT and KRM.  So, in essence, there within a short space of time, two five member courts and two other unanimous courts that are in conflict.

NETTLE J:   What about ground 2(b)?  Where is the issue of general importance in that?

MS SHAW:   The issue of general importance is that this was a matter where the accused, effectively, had a verdict of acquittal.  The issue of permission was important not just because of the acquittal but also because below counsel for the appellant had sought the Crown to seek reservation of a case on the very point that was raised in advance of verdict so that essentially the accused did not have to commit to a forensic trial.  The Crown refused that course.  Agreed that Johnson applied, that is, that the statements applying KBT and KRM applied but then sought permission on the basis that effectively Johnson should be reversed.

So, in our respectful submission, it was necessary for the Chief Justice to consider the question of permission, not just because of the proceedings below but at the end of the day if he was taking a different view to the trial judge of the facts then that necessarily meant it would not have been a case worthy of permission although the court could have proceeded to statements of principle.

NETTLE J:   It sounds like the issues are very fact‑specific as opposed to ones of principle of general application.

MS SHAW:   It is, in essence, in our submission, an argument that this Court’s judgment in Malvaso needed to be applied.  In Malvaso, the court below, the Full Court failed to consider permission and, effectively, the High Court held that that was a necessary jurisdictional step in order for the Court to be seized of the matter and, therefore, allowed the appeal in the High Court and sent it back for proper consideration.  Here, permission has been granted essentially by the record but no reasons given.

NETTLE J:   Yes, thank you.

MS SHAW:   If I can then turn to our submissions in relation to ground 1.  As your Honour has already pointed out, it raises the same issues in DL and also raised in Chiro.  In our respectful submission, our provision, section 50 is similar to that considered by this Court in KBT v The Queen and the South Australian Full Court, as I have said, a five member court, has held as

such and a three member court on two occasions.  It is similar to the provision in KRM v The Queen and the Court of Appeal in this State has previously held it to be analogous insofar as it requires proof of the commission of two sexual offences and not of some illegitimate relationship.

In our submission, therefore, the judgment of his Honour the Chief Justice in this case is to the effect that section 50 is not to be applied by reference to the principles articulated by this Court in KBT and KRM.  Instead, it was held at application book 45, paragraph 42, that there can be a verdict of guilty without proof beyond reasonable doubt of sexual offences which are to be identified in a way such that they can be distinguished one from the other.

In our submission, the Court of Appeal in substance, if not in form, has departed from its earlier decisions of the South Australian Court of Appeal, including that five member court I referred to but, more importantly, departed from the approach to construction of provisions of this kind established by KBT and KRM.  Critically, rather than starting from the proposition that proof of the actus reus involved proof of two or more constituent sexual offences and treating the provisions which partially relax requirements of particularity in the information as procedural rather than substantive the Chief Justice appears to have taken an approach more focused on what his Honour perceived to be the mischief that this section was intended to address; that is referred to in application book 45, paragraph 41.

This was in contrast to the earlier decisions in South Australia that held that section 50(4) was concerned with procedure and could not alter the actus reus and by extension the way in which it must be proved.  His Honour held at paragraph 37, application book 44 that the particulars provision was significant in resolving the question of whether proof of the composite offence, that is a composite offence insofar as it requires proof of two separate offences or identifiable constituent sexual offences committed three days apart.

NETTLE J:   Ms Shaw, we might hear from the Solicitor at this stage, thank you.  Mr Solicitor.

MR BLEBY:   May it please the Court. 

NETTLE J:   Could we start with ground 2(b) if that would not be inconvenient?

MR BLEBY:   I am simply prepared to rely on our written submissions in that respect, your Honour, so I do not propose to raise that orally.

NETTLE J:   Thank you.

MR BLEBY:   On the first ground in Hamra the question that is said to arise for special leave is said to arise notwithstanding that subsection 50(4)(b)(ii) provides that the information need not:

identify particular acts of sexual exploitation or the occasions on which, places at which or order in which acts of sexual exploitation occurred –

And notwithstanding that subsection 50(2)…..to the phrase “if it were able to be properly particularised” draws a distinction between what is required for proof of a sexual offence ordinarily listed in the statute book and what is required for proof of an offence under section 50.  That subsection, patently, we say, signals that common law requirements of proof of particulars of a sexual offence are not mandated on a charge under section 50 because of the use of the word “able”.  If they are not “able” to be particularised in a charge, they are not “able” to be proved.  So, question 1, we say, does not enjoy a sufficient prospect of success in light of ‑ ‑ ‑

EDELMAN J:   At the heart of it, it is really a question of what is meant by “act” in 50(1) when read with subsection (2), is it not?

MR BLEBY:   It is, your Honour, but then we derive contextual relevance from the particulars of charging regime that appears in subsection (4).

GORDON J:   Is that not itself a question because subsection (4)(b)(i) and (ii) talk about alternatives in the way in which it might be particularised for the purposes of the charging?  That is the question.  I mean, the Chief Justice describes 50(4) as a matter of procedure only, in paragraph 34.  You do not support that contention, surely?

MR BLEBY:   We do say that that which is ameliorated in subsection (4)(b) necessarily ameliorates requirement of proof that would otherwise be required by the common law not as to the elements of the offence, the elements of the offence are as they are, but where the common law would then ordinarily require particulars of time, place et cetera, so as to enable the accused to answer the charge and so as to guard against issues of duplicity, double jeopardy and the like.  That is which is ameliorated in pursuance of a policy.

Now, if subsection (4)(b), the two subparagraphs, not – while they use the expression “or” because they are in a negative, you neither merely allege particulars of each with a degree of particularity that would be required if the act were charged as an offence under a different section, nor need you “identify particular acts of sexual exploitation or the occasions on which, places at which” et cetera. 

So, once we realise that these are if you like a two‑stage amelioration of the charging process, given section 50(2) and given the patent unfairness that would result if you could charge, if you like, at a level of generality that whereas, nonetheless, you were required to prove at a higher level of particularity it would be a very odd construction, indeed, we would say, if you were effectively able to hold your cards to your chest at the charging stage.

GORDON J:   Is that not what happened here with the information which appears on page 5 of the application book?

MR BLEBY:   It was certainly expressed at the level of generality permitted by subsection (4) and the necessary consequence of that, we say, indeed, a patent consequence, is that proof requirements are ameliorated to the same extent.

Now, critically, that is not affected by the jurisprudence connected with KBT and that stands for the proposition of the necessity of an extended unanimity direction because those cases ‑ and that includes the judgment of Little in the Full Court of the South Australian Supreme Court ‑ are talking about the requirement of extended unanimity on the elements of the offence.  They say nothing about the further requirements of particularity imposed by the common law.  There is no inconsistency created by those matters – those cases, and it would be a fallacy, we say, to say that the requirement of extended unanimity would be rendered meaningless. 

Just to give by way of examples ‑ well, the Chief Justice gave an example at paragraph 36 of the judgment which is at casebook 43, other examples…..If you have evidence of a course of offending over a period of time, that was as required in the actus reus, and the jury accepts the complaints in the entirety of the complainant’s evidence, there can be no mischief and there can be no complaint.

Similarly, here, in the present case, there were essentially four categories of offending.  There was the initial offending that occurred in bedroom three.  There was the subsequent offending that occurred in bedroom two.  There was the offending that occurred in bedroom two in the specific period while the complainant’s parents were on holiday in Fiji over a 10 day or two‑week period, the evidence was it occurred every night, and there was a separate complaint of offending twice at the accused’s parents’ house at Kurralta Park.

NETTLE J:   Do you accept that the jury would have to be unanimous as to each act which constituted the cause of conduct?

MR BLEBY:   At the level of generality at which it is particularised and given evidence, so ‑ ‑ ‑

NETTLE J:   What do you mean?  What does that mean?

MR BLEBY:   The best way of looking at that, your Honour, is to look at it in the negative.  So, were the jury faced with, if you like, the evidence in its level of generality of the cause of offending in bedroom two, it may be that a juror ‑ the juror can say well, look, there was a period here when the accused said, I just was not in the State at that time, and some might believe him, some might not, you would have to have unanimity, for example, over the period of time and the nature of the acts.  So, that would be resolved at that level and it is said in that way that you refer to unanimity on the acts, but that is the way that the section is expressed.

NETTLE J:   So, there would need to be unanimity as to the number of acts?

MR BLEBY:   No, your Honour, there would need to be unanimity as to the acts, as to the period, and as to the nature of the offending because the complainant may not be able ‑ ‑ ‑

GORDON J:   So, just tie that back, Mr Bleby, to the information in this appeal – this application, how does that work for the purposes of the jury, page 5.

MR BLEBY:   Yes, your Honour, so it is a combination – the information then, but then the evidence, because the information simply says more than one act of sexual exploitation within a particular identified period at places, child being under the prescribed age and then that is ‑ ‑ ‑

GORDON J:   It is more general than that.  It says – it does not tie acts to places or to times.  It is separated out.  That is – I am trying to work out what is it the jury has to agree on, having regard to the way in which it has been particularised here?

MR BLEBY:   Yes, in terms of satisfying themselves of the offence at law as laid out in the information, once it comes to the evidence, of course, then the jury may disbelieve the complainant for whatever reason.  It may disbelieve the accused for whatever reason as to ‑ ‑ ‑

NETTLE J:   Can I just ask you, on your interpretation that means that one juror could be satisfied beyond reasonable doubt of only two acts and another juror satisfied beyond reasonable doubt of, say, 20 acts?

MR BLEBY:   In that case, the extended unanimity direction would go to say you have to be unanimous on all of the acts that you convict on and if all of them together were only satisfied of two acts then that would be the basis of the conviction.

NETTLE J:   You agree that the jury would need to be directed that they must be unanimous as to the individual acts of sexual exploitation that comprise together the offence?

MR BLEBY:   Not in terms, your Honour.  The difficulty is we have to separate out the idea of “acts” and those particulars of place, time, occasion and the like.  So, for example, if I can put it this way, part of the evidence related to when the complainant’s parents were in Fiji for the 10 day or two‑week period, the evidence was that every night during that period the accused assaulted the complainant.  The evidence was also that on two of those occasions, the accused forced the complainant to perform oral sex.

Now, the jury could be unanimously satisfied that on every night during that period the accused assaulted the complainant.  That would be sufficient.  Some of the jurors, for example, however, say might not be satisfied as to the “every night” aspect, so they might all be satisfied as to the two occasions of oral sex.  In that case, a unanimous verdict would be returned in respect of the two occasions of oral sex. 

So, while the complainant cannot say it was precisely these dates and, therefore, particularised the occasion in the ordinary way, the occasions are sufficiently particularised for the purposes of the section, it follows that unanimity on the acts is achieved, albeit that their, if you like, particularity of proof is not what you would normally require under the common law.

So, in that case, that is the example by which I can most easily answer your Honour’s question in saying, yes, they would, but not in the way that we ordinarily think about it because this section is designed to deal with those situations where a complainant cannot particularise in the ordinary way, can give evidence of the acts and, if you like, alters the burden of particularity required by the common law to pursue a policy objective that people, especially those victims of historical sex offences, possibly decades old, cannot recall with the particularity of the common law requirements, yet the policy says we still want to be able to put people on their trial for such offences, and it is designed to deal then with the paradox that the more recent and the more particular you can be and the fewer the occasions of assault, the more likely the conviction, where the longer more pervasive and continuing the assault the more difficult it is to get a conviction.  That is the policy of this section and the…..example is a very good example of how that policy is meant.

Can I speak briefly to the DL matter?  We oppose leave on DL at all and the reason for that is whether or not this Court decides that the principle raised – the question 1 raised in Hamra has sufficient prospects, the result will not change DL.  As we say in our response in DL from paragraph 11 of the response, in DL particular occasions and absolutely particular occasions were proved and certainly capable of acceptance.

So, your Honours will see from the response at page 91 of the casebook, there are seven identified instances of offending.  One of them is particularised by reference to a Christmas Day.  Another was proved by reference to a particular date because it was the date that the victim assaulted the applicant’s daughter and that would be demonstrated absolutely.  Otherwise, the occasions were described as the first occasion a particular incident when the complainant was aged five.  Secondly, a particular Christmas Day; thirdly, a particular occasion when the applicant took the complainant to a slot car venue called Red Line when the complainant was about nine years old.

NETTLE J:   Mr Solicitor, I take your point about the particulars but how is one to construe the reasons for judgment, or lack of them, more particularly, of the trial judge?

MR BLEBY:   Your Honour, in that case, you have to go to the particular paragraphs of that judgment and, in our submission, it is quite clear what was accepted.  So, if your Honours go to paragraph 66 which is at casebook 17 of the judgment.

GORDON J:   What is the reference in paragraph 66 to “core allegations”?

MR BLEBY:   In context, your Honour ‑ I need to take your Honour back down through the paragraphs that follow to understand that fully.  If your Honours just bear with me while I bring up the paragraph.  So, at 66 he holds that – he accepts the complainant:

as a reliable witness as to the core allegations.

Then, at 67:

having listened to MGF over a number of days, I simply believed him and found him to be reliable.

Then, at 69 found he was:

unimpressed by the accused’s presentation.  I found his answers to be glib and evasive on some topics –

and he emphasised certain of those.  At 70 through 73 he then notes the “forensic disadvantage” that the accused was under.  Then, at 73, page 18 of the casebook:

I reject the evidence of the accused on substantive issues where he denied the alleged sexual conduct.

With the evidence given of the particular occasions, this positive rejection of the denials and the finding of the complainant to be reliable, in our submission, there can be no doubt that what was accepted was each account of the separate occasions. 

NETTLE J:   Yes, Mr Solicitor.

MR BLEBY:   So, what we are left with is a complaint simply about reasons and that is not a question of general importance and, indeed, the mischief that is then said to arise from what is said to be a.….of reasons, was a ground before the Court of Criminal Appeal, not on this question of what is said to be underlying principle, and the Court of Criminal Appeal resolved those matters.  There was then a delay in bringing this application.  There is an affidavit in the application book explaining the delay but it does not speak to the first year of the delay.  And so what we are left with is simply a complaint of a want of reasons, it was resolved by the Court of Criminal Appeal, that raises no question of general importance.  May it please the Court.

NETTLE J:   Thank you.

MS SHAW:   If the Court pleases.  Firstly, subsection ‑ ‑ ‑

NETTLE J:   Just pardon me a moment please , Ms Shaw.  We need not hear from you, thank you, Ms Shaw.

In Hamra, leave is granted to the applicant to amend ground 1 so as to delete therefrom in the third line the words “unrelated to any particular occasion”.  There will be a grant of special leave to appeal on grounds 1, as so amended, and ground 2(b).

In DL, we shall adjourn the further hearing of the application for special leave to a date to be fixed.  Subject to further order, it is directed that the matter of Hamra and the matter of Chiro be heard together before

the same Court at the same time which it is proposed will be in the June sittings of the Court in Adelaide.  The parties will, therefore, need to consult shortly with the Registrar as to the steps to be undertaken to have both matters ready to be heard at that time.  Is there anything further sought by you, gentlemen?

GORDON J:   Or Ms Shaw?

NETTLE J:   Ms Shaw, anything further?

MS SHAW:   No ‑ extension of time.

NETTLE J:   Is that opposed, Mr Solicitor?

MR BLEBY:   Not in the circumstances, your Honour.

NETTLE J:   Time is extended, thank you.

AT 10.04 AM THE MATTERS WERE CONCLUDED