R v Hamra - [2018] SASCFC 20

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HAMRA
[2018] SASCFC 20
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Kelly)
23 March 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The appellant was found guilty by jury of one count of persistent sexual exploitation of a child.
The abuse was particularised on the information to have occurred over a period of approximately eight years against the complainant, GT. The abuse was alleged to have begun when GT was nine or 10 years old. The particulars alleged were the touching of GT’s genitals by the appellant, the appellant placing his penis between the legs of GT, causing GT to touch the appellant’s penis and causing GT to perform fellatio upon the appellant.
The appellant appeals against the conviction on five grounds. Grounds 1, 3 and 4 concern the adequacy of the trial Judge’s directions as to the elements of the offence. Ground 2 is a complaint that the verdict is void for uncertainty. Ground 5 is a complaint that the verdict is unreasonable and cannot be supported by the evidence.
Held per Kelly J (Kourakis CJ and Vanstone J agreeing) dismissing the appeal.
1.       The extended unanimity direction given by the trial Judge was adequate.
2.       The verdict is not void for uncertainty.
3.       The trial Judge did not misdirect the jury as to the fourth element of the offence.
4.       The trial Judge did not err in directing the jury on the second element of the offence when referring to the first particular of the charge and the evidence of GT.
5.       The verdict is not unreasonable having regard to the evidence.
Criminal Law Consolidation Act 1935 (SA) s 50; Evidence Act 1929 (SA) s 34CB, referred to.
Hamra v The Queen (2017) 91 ALJR 1007; Chiro v The Queen (2017) 91 ALJR 974; M v The Queen (1994) 181 CLR 487, applied.
R v S (1992) 58 SASR 523; R v Johnson [2015] SASCFC 170, discussed.
R v Hamra (2016) 126 SASR 374, considered.

R v HAMRA
[2018] SASCFC 20
Court of Criminal Appeal: Kourakis CJ, Vanstone and Kelly JJ

KOURAKIS CJ: I would dismiss the appeal for the reasons given by Kelly J.
VANSTONE J: I would dismiss the appeal for the reasons written by Kelly J.
KELLY J:
Introduction
The appellant, Stephen Hamra, was found guilty by a verdict of a jury after trial of one count of persistent sexual exploitation of a child, who I shall refer to as GT.
The charge was particularised on the information as spanning a period of approximately eight years. The particulars alleged were the touching of the genitals of GT…

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.

Continue reading R v Hamra

Details

AGLC: R v Hamra [2018] SASCFC 20
Case: [2018] SASCFC 20
Decision Date: 23 March 2018

CaseChat Overview and Summary

The case of R v Hamra involves an appeal by the appellant against his conviction on various grounds. The appellant was found guilty of multiple counts of indecent assault against GT, who was the appellant's godson, over a period of approximately eight years. The appellant, a teacher and family friend, was alleged to have engaged in various forms of sexual misconduct with GT, including touching his genitals and engaging in other sexual acts. The appeal raises several grounds, including challenges to the adequacy of the trial judge's directions to the jury regarding the elements of the offence, the certainty and reasonableness of the verdict, and the reliability of the evidence presented.

The primary legal issues before the court involved the sufficiency of the trial judge's directions to the jury, particularly concerning the elements of the offence of indecent assault, and the reasonableness of the jury's verdict in light of the evidence presented. The appellant argued that the trial judge erred in various aspects of the directions given to the jury, including the explanation of the elements of the offence and the requirement for unanimity in the jury's decision. Additionally, the appellant contended that the verdict was unreasonable and could not be supported by the evidence, as well as being uncertain due to the lack of clarity regarding which specific incidents the jury had found the appellant guilty of.

The court examined each ground of appeal in detail, considering the trial judge's directions to the jury and whether they were adequate and clear. The court found that the trial judge's directions, while not perfect, did not constitute a misdirection that would vitiate the conviction. The court noted that the judge had sufficiently explained the elements of the offence, and any perceived errors were minor and did not lead to a miscarriage of justice. Regarding the verdict, the court concluded that it was reasonable and supported by the evidence. The court found that the jury had considered the evidence thoroughly and made findings that were consistent with the appellant's actions as described by the complainant.

The court dismissed all grounds of appeal, confirming the appellant's conviction. The detailed examination of the evidence and the legal principles applied underscored the court's conclusion that the jury's verdict was sound and based on credible evidence. The decision affirmed the trial judge's handling of the case and the jury's findings, rejecting the appellant's claims of misdirection and unreasonableness.

Orders

Orders of the court

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Background

Background to the litigation

The charge was particularised on the information as spanning a period of approximately eight years. The particulars alleged were the touching of the genitals of GT by the appellant, placing the appellant’s penis between GT’s legs, causing GT to touch the appellant’s penis, and causing GT to perform fellatio upon the appellant. The appellant now appeals against the conviction on five grounds. Grounds 1, 3 and 4 concern the adequacy of the trial Judge’s directions as to the elements of the offence. Ground 2 is a complaint that the verdict is void for uncertainty. Ground 5 is a complaint that the verdict is unreasonable and cannot be supported by the evidence. Background GT was born in 1970. He was 46 years of age at the date of the trial. The appellant was born in 1955 and was 61 years of age at the date of trial. The appellant was a friend of GT’s parents, having met at a birthday party sometime between the years 1974 and 1977. The appellant was a teacher. GT has two older brothers, BT, born in 1965 and ST, born in 1967. At the trial the appellant did not give evidence and the defence did not call any evidence. The defence case amounted to a challenge to the veracity and reliability of the witnesses called on the prosecution case. Three witnesses were called for the prosecution, namely GT, his mother RT, and a family friend to whom GT complained when he was about 17 or 18 years old. Shortly after they met at the birthday party, GT’s parents asked the appellant to tutor the middle son, ST. Thereafter the appellant became a family friend and often stayed overnight at their home. From time to time the appellant joined GT’s family at a shack on the Yorke Peninsula. On other occasions, GT went with the appellant to a holiday house at Goolwa owned by the appellant’s sister. GT said that the appellant began to sexually interfere with him when he was aged about nine or ten. He described the commencement of the sexual interference as touching him on the genitals outside his pyjamas, which usually occurred at the time when the appellant came into the bedroom where GT was then sleeping with his brother ST. GT described the touching of his genitals outside the pyjamas happening repeatedly over a period of some three to four months, after which it progressed to touching underneath the pyjamas. GT described the appellant lying semi-naked alongside GT’s bed. The appellant would wake GT from his sleep during the night, slide GT out of bed and onto the appellant’s stomach. The appellant would slide GT up and down on his stomach and encourage GT to handle his penis. The appellant instructed GT how to pull his penis. On other occasions, GT described fondling of his genitals by the appellant to the point where GT sometimes had an erection. GT described this happening sometimes at Goolwa. He said it happened on more than one occasion at Goolwa. GT’s evidence was that this type of sexual interference occurred regularly, possibly twice a month over a period of some six years.

Evidence

Evidence Before The Court

For these reasons I do not consider there is any substance in the complaint made under ground 3. Ground 4: The Judge erred in directing the jury on the second element of the offence when referring to the first particular of the charge and the evidence of GT The appellant complains that in addition to the inadequate unanimity direction and the complaint made in respect of ground 3, the Judge made a further error in the context of explaining the elements of the offence of indecent assault. It was submitted that by referring to the first occasion when GT was sexually abused as an occasion he actually remembered, the Judge made an error, as that was not GT’s evidence. The impugned remarks appear below:If we remember [GT’s] evidence he said that that did happen on occasions and that he remembers or at least says he remembers the first such occasion as being either one to one and a half minutes or, at an earlier time, he said it had lasted for 15 minutes, so if that is proved, members of the jury, that there was touching of the genitals, that would be an indecent assault. The Judge then went on to direct the jury as follows:So what is alleged, members of the jury, is a touching of the genitals. [GT] says that he remembers what he referred to as the first occasion that occurred for one to one and a half minutes or 15 minutes depending on which part of his evidence you are looking at, and that that happened a number of times. But if there was touching of his genitals in the way in which he described that would amount to an indecent assault. When GT’s evidence is analysed I do not consider that the Judge has made any such alleged error. GT was questioned a number of times about the first occasion and it is necessary to descend into some detail to accurately describe the state of the evidence at the end of trial. GT was first questioned by the prosecutor and gave evidence as follows:Q.Can you tell us in as much detail as you can please the nature of the inappropriate behaviour when it first started.A.The first time it started it was just a pat on the bottom or the first recollection I remember Steve came in to give us a kiss goodnight which wasn’t uncommon, and he patted me on the bum and then put his hand on my genitals.Q.What were you wearing.A.Pyjamas.Q.Where was [ST] when this happened.A.He would have been on the top bunk.Q.Can you tell us whether he was asleep or awake.A.He would have been awake, we were all getting a kiss goodnight, but the way in which the bunks were set up he wouldn’t have seen anything.Q.You say he put his hands on your genitals, is that outside of your pyjamas or under your pyjamas.A.No, the first time it was above my pyjamas.Q.So outside your pyjamas.A.Yep.Q.How long did the touching of the genitals last.A.I - in my statement I know that I -OBJECTION: MRS SHAW OBJECTSHIS HONOURQ.Just whatever your current memory is [GT].A.Maybe a minute.Q.Sorry, minute or minutes.A.Maybe a minute, minute and a half.XNQ.Did you say anything to Mr Hamra.A.No.Q.Did he say anything to you.A.I don’t recall.Q.What did you do after this had occurred.A.I just went to sleep.Q.Were you standing when that happened.A.No.Q.Where were you.A.I was laying on my bed.Q.What position was Mr Hamra in.A.He had gone - got alongside of the bed. And probably would have knelt down.Q.Did the touching of your genitals on the outside of your clothes occur on a number of occasions.A.Yes.Q.On how many occasions.A.I can’t give you that number.Q.Over what period of time.A.I would say that probably three to four months.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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