R v Hamra

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 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.
Within about 18 months of the first time the appellant touched GT’s genitals, GT said the appellant began to slide his penis between GT’s legs, rubbing it against GT’s bottom. The appellant also encouraged GT to perform fellatio on him.
GT’s evidence was that the sexual interference of the appellant with him occurred in bedrooms described in the evidence as bedrooms two and three of the house.
GT said that when his brothers ST and BT were a little older the sleeping arrangements changed so that they slept in bedroom three together and GT was moved into bedroom two. However GT’s evidence was that the first time an incident of fellatio occurred between the appellant and GT, GT was still in bedroom three with ST.
The evidence concerning the sleeping arrangements between the three boys at the time of the sexual abuse alleged assumed some prominence at the trial. I will return to that evidence later in these reasons. Suffice to say at this stage it is evident from both the evidence of GT and RT that the sleeping arrangements for the three boys changed over a period of some years during the relevant period.
GT said these incidents of sexual abuse occurred until he was about 16. When he was 16 he obtained his driver’s licence and the sexual interference by the appellant became less frequent because GT was able to absent himself from the house when the appellant was present.
Ground 1: The extended unanimity direction
Ground 1 is a complaint that the trial Judge failed to give an adequate extended unanimity direction.
The Judge’s directions on this topic are set out below:
Next, it must be proved that the accused committed at least two acts of sexual exploitation. So there might be two or more acts, they must be among the acts particularised in the information.
Before you could be satisfied about this ingredient, you must agree unanimously, that is all 11 of you, or by majority, at least 10 of you if you have been in deliberations for more than four hours, that it is the same two acts of sexual offences from the multiple acts of sexual exploitation alleged, has been proved beyond a reasonable doubt.
The appellant complains that this direction was wholly inadequate. The appellant submitted that in light of the circumstances a much more elaborate extended unanimity direction should have been given along the following lines:
-that the jury could only convict with regard to the offending alleged to have occurred in bedroom three if they unanimously or by majority accepted GT’s evidence in spite of evidence from GT’s mother to the contrary;
-that the jury could only convict with regard to the offending alleged to have occurred in bedroom two or at Goolwa if they unanimously or by majority accepted GT’s evidence. The Judge ought to have reminded the jury that the evidence of the offending in each of these two places consisted of bare assertions only. Apart from one occasion that GT remembered when his brother BT had a car accident, there was no evidence from GT about the surrounding circumstances of the offending in each of these places;
-that the jury could only convict in regard to the offending alleged to have occurred whilst GT’s parents were in Fiji in 1981 if they unanimously or by majority accepted GT’s evidence about that. The Judge ought to have reminded the jury that the evidence of GT in this context again consisted of a bare assertion only. The Judge further ought to have reminded the jury of a prior inconsistent statement of GT given to the police in September 2013 that he could not specifically remember any abuse happening in that period;
-that it would not be sufficient for different members of the jury to be satisfied that different acts had occurred; the jury needed to be satisfied beyond reasonable doubt that the same two acts had occurred. For example, it would not be sufficient for six of the jury to be satisfied about the offending alleged to have occurred in bedroom three, six of them to be satisfied about the offending alleged to have occurred at Goolwa, nine of them to be satisfied about the offending alleged to have occurred in bedroom two, and four of them to be satisfied about the offending alleged to have occurred whilst GT’s parents were in Fiji; and
-that if the jury were to accept unanimously or by majority GT’s evidence concerning the sexual interference on the occasion of BT’s car accident, such a finding would be insufficient on its own to convict the appellant of the charge of sexual exploitation. It would not on its own satisfy the fourth element of the offence that the commission of the acts occurred over a period of at least three days. The jury would also need to unanimously or by majority accept GT’s evidence about one or more acts of sexual exploitation.
The basis for the submission that a direction along the lines set out above was said to lie in some observations made obiter by Kourakis CJ in R v Hamra:[1]
[37]On a charge of offending against the complainant over the year in which she was aged 15, the inability of the complainant to describe any surrounding circumstances peculiar to any of the subsequent occasions may bear on the reliability or creditworthiness of her testimony but, if her testimony is accepted, the elements of s 50 of the CLCA that the accused committed two or more prescribed sexual offences over a period of three or more days will have been proved. This cannot be doubted in a trial by judge alone. On principle, there should be no different result in a jury trial. When given to a jury, the extended unanimity direction requires only that the jury, unanimously or by majority, be satisfied that the offending occurred as testified by the complainant. If so satisfied, the jury will unanimously, or by majority, have agreed on the commission of the same offences, as prescribed by s 50 of the CLCA or otherwise, over a period of more than three days, even though none of the prescribed offences is separately identified.
[38]Of course, most cases are more complex and practical difficulties will arise. For example, if there is a disputed body of evidence that the defendant was overseas in the first six months, and another disputed body of evidence that the complainant and her family moved to live interstate in the last six months of that year, the directions will have to accommodate the possibility that some jurors may be satisfied that there was offending in the first six months but not the last and others may be satisfied of the converse. The jury in such a case would need to be directed that they could only convict if they unanimously, or by majority, accepted the complainant’s evidence despite evidence to the contrary, with respect to either the first six months, or the last six months, or the whole year. However, agreement on the elements of the offence does not require agreement on two or more acts of prescribed sexual offending separately identified by reference to their peculiar surrounding circumstances.
[emphasis in original]
[1] (2016) 126 SASR 374 at [37]-[38].
Senior Counsel for the appellant argued that the evidence in this case brought it within the description of a more complex case requiring the jury to be directed specifically in the terms set out above.
In R v Hamra[2] a similar issue arose, namely whether evidence of a generalised nature which does not establish features or circumstances peculiar to each alleged act of sexual exploitation is capable of founding a conviction for an offence against s 50(1) of the CLCA. Section 50 as it applied at the relevant time provided:
[2] (2016) 126 SASR 374.
50—Persistent sexual exploitation of a child
(1)An adult person who, 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 is guilty of an offence.
Maximum penalty: Imprisonment for life.
(2)For the purposes of this section, a person commits an act of sexual exploitation of a child if the person commits an act in relation to the child of a kind that could, if it were able to be properly particularised, be the subject of a charge of a sexual offence.
(3)If—
(a)     at any time when an act of sexual exploitation of a child was allegedly committed the child was at least 16 years of age; and
(b)     the defendant proves that he or she believed on reasonable grounds that the child was of or over the prescribed age at that time,
the act of sexual exploitation is not to be regarded for the purposes of an offence against this section.
(4)Despite any other Act or rule of law, the following provisions apply in relation to the charging of a person on an information for an offence against this section:
(a)     subject to this subsection, the information must allege with sufficient particularity—
(i)the period during which the acts of sexual exploitation allegedly occurred; and
(ii)the alleged conduct comprising the acts of sexual exploitation;
(b)     the information must allege a course of conduct consisting of acts of sexual exploitation but need not—
(i)allege particulars of each act with the degree of particularity that would be required if the act were charged as an offence under a different section of this Act; or
(ii)identify particular acts of sexual exploitation or the occasions on which, places at which or order in which acts of sexual exploitation occurred;
…
As Kourakis CJ (with whom Kelly, Nicholson and Lovell JJ agreed) observed, the section itself expressly provides that the particular acts need not be identified with the same particularity as might be required if the acts were charged individually as sexual offences.
Section 50(4)(b)(ii) goes further and removes any requirement for particularisation of the acts or occasions of prescribed sexual offending by reference to the place or order of offending. To that extent the common law as applied by this Court in R v S[3] has been abrogated.
[3] (1992) 58 SASR 523.
In Hamra v The Queen[4] the High Court upheld this Court’s decision in R v Hamra.[5] With reference to s 50(4) the High Court said:[6]
[27]… That subsection outlines the required particularity of an information charging a person with an offence under s 50(1). It modifies the common law by providing that although the information must allege a course of conduct consisting of acts of sexual exploitation it 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” (s 50(4)(b)(ii)). The subsection requires the jury to find the same two or more acts committed over a period of three or more days in order for the accused to be convicted but, provided that two or more distinct acts can be identified, it does not require the occasions of those acts to be particularised other than as to the period of the acts and the conduct constituting the acts. …
[28]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.
[footnote omitted]
[4] (2017) 91 ALJR 1007.
[5] (2016) 126 SASR 374.
[6] Hamra v The Queen (2017) 91 ALJR 1007 at [27]-[28].
The High Court held that the Crown was not required to provide particulars or prove the s 50 offence in a way which differentiated the circumstances of each act of sexual exploitation. The High Court held that the trial Judge (who heard the case without a jury) was entitled to conclude that there were two or more acts of sexual exploitation committed if he concluded beyond reasonable doubt that the appellant committed acts of sexual exploitation every time he stayed overnight, which was nearly every weekend for months, and possibly years.
It follows that neither the elements of the offence or its particularisation, nor any application of the extended unanimity direction require the occasion on which each act of sexual exploitation was allegedly committed to be identified in a way which distinguishes it from the other acts of sexual exploitation.[7]
[7] R v Hamra (2016) 126 SASR 374 at [43] per Kourakis CJ.
Here there was evidence of acts of sexual exploitation occurring in both bedrooms two and three of the house and at Goolwa. On many occasions evidence of a combination of acts of sexual exploitation including fellatio, indecent assault and masturbation was given. Had an extended unanimity direction been given along the lines argued for by the appellant, the jury would need to have been directed that they had to be unanimous on many different aspects of the acts which included not just location but timing and other features. Such a direction would have been convoluted and potentially confusing to the jury.
The example given by Kourakis CJ in R v Hamra[8] at [38] does not establish a general rule in all cases concerning the content of an extended unanimity direction.
[8] (2016) 126 SASR 374.

The passage in [37] is illustrative of how unanimity may be reached even when the evidence is so generalised that no individual instances of sexual exploitation can be discerned. The example in [38] is simply an illustration of the particular application of the general principle. The purpose of the extended unanimity direction is to ensure that the jury understand there must be agreement as to the same two or more acts before they can return a verdict of guilty. As the High Court explained, that conclusion may be reached deductively. Whether or not a direction should be given explaining that the jury might reach a unanimous or majority verdict by deductive reasoning, even in the absence of particularity, depends very much on the facts and circumstances of the case. It is also a matter over which a judge has a wide discretion.
It is relevant that even though the facts here and the facts in R v Hamra[9] are somewhat similar, there was a degree of specificity absent in R v Hamra as to particular occasions. Here the evidence was more specific, in that GT remembered at least one occasion, which he identified by reference to the night of BT’s accident. To that extent the observations made by the Court in R v Hamra apply with even greater force to the circumstances of this case.
[9] (2016) 126 SASR 374.
In my view the direction which the Judge gave on the facts was entirely correct, clear and comprehensible. As a consequence of the direction there would not have been any doubt in the minds of the jury as to their task. There was no need to give any further directions.
To the extent that the appellant relied on some of the observations made by Peek J in R v Hamra[10] and R v Johnson[11] in submitting that the jury ought to have been given explicit directions as to the route taken to the verdict, it is necessary to exercise a degree of caution. In Hamra v The Queen[12] the High Court made the following observations:
[46]… However, some of the reasoning of Peek J in R v Johnson appeared to suggest, as a proposition of law, that it is impossible to convict an accused person if the evidence did not identify two particular acts of sexual exploitation which could be delineated from many other acts of sexual exploitation by reference to particular circumstances. Put another way, to use expressions of Sulan and Stanley JJ, it seemed to be suggested that an accused person could never be convicted unless the complainant were able to identify two or more particular acts of sexual exploitation with a “degree of specificity” so as to differentiate them from other such acts. To the extent that those propositions suggest that some greater degree of particularity is required beyond that which sufficiently identifies two or more particular acts within s 50(1), separated by three days or longer, those propositions are incorrect. To adapt the example given earlier in these reasons, it would be sufficient if the jury (or judge in a trial by judge alone) were to accept that acts which could be the subject of a charge of a sexual offence occurred every night, or every weekend, over a period of two months without any further differentiation of the particular occasions of the offending.
[footnotes omitted]
In any event, considering the way in which the evidence unfolded here and the way in which the jury were specifically directed to assess the evidence of GT, this was a case where the jury realistically were likely to have accepted or rejected GT’s evidence as a whole.
[10] (2016) 126 SASR 374 at [100]-[101].
[11] [2015] SASCFC 170.
[12] (2017) 91 ALJR 1007 at [46].
The Judge directed the jury first that there was no independent support for the evidence of GT. His Honour pointed out to the jury that the evidence of GT stood alone. His Honour then gave a particularly strong direction about the need to scrutinise the evidence of GT with care:
You should scrutinise the evidence of the complainant [GT] with great care. His truthfulness and reliability are fundamental if the prosecution is going to prove its case beyond reasonable doubt.
Unless you are satisfied about his truthfulness and reliability you must acquit. As I have said you must scrutinise his evidence with great care and only act on it if you are satisfied as to that truthfulness and reliability.
It is evident from the verdict that the jury must have accepted the evidence of GT.
For these reasons I would dismiss ground 1.
Ground 2: The verdict is void for uncertainty
Although the complaint made under this ground of appeal was not pressed in argument by the appellant, it was never formally abandoned. I will deal with it briefly.
The appellant complains on two grounds that the verdict is void. The first is by virtue of the asserted deficiency in the extended jury unanimity direction. The second is by virtue of the fact that the prosecution relied upon acts of indecent assault as well as acts of unlawful sexual intercourse (fellatio) to prove the charge. It was therefore argued that the basis for the conviction on the count of sexual exploitation pursuant to s 50 of the CLCA is uncertain.
As to the first ground, for the reasons I have already explained when dealing with ground 1, the Judge’s directions to the jury were entirely correct. The Judge clearly directed the jury that before they could return a verdict of guilty under s 50(1) they needed to be agreed as to the same two acts.
As to the second ground, s 50(1) of the CLCA contemplates that a verdict on a single offence may include a range of relevant acts particularised on the information. The High Court in Chiro v The Queen[13] held that the inability to discern from a jury’s verdict which of numerous acts of sexual exploitation particularised on an information and the subject of evidence formed the basis of the jury’s guilty verdict did not render the verdict uncertain. In light of the unanimous rejection of the same contention in Chiro, this ground of appeal cannot succeed.
[13] (2017) 91 ALJR 974.
Ground 3: Misdirection as to the fourth element of the offence of sexual exploitation
The next ground of appeal is a complaint that the jury were misdirected as to the fourth element of the offence, namely the requirement that two or more acts of sexual exploitation must have been committed over a period of at least three days.
The direction complained of appears below:
Fourth, it must be proved that the accused committed the two or more acts of sexual exploitation over a period of at least three days. That simply means that the time between the first and the last acts which must be proved must be three days or more.
So members of the jury, here as you know from the evidence it is alleged that from the first alleged sexual offence against [GT] and the last was many years. So if all other things are satisfied, you might well take the view that the time between the first and the last must be three days or more, that that has been satisfied.
The appellant submitted that by directing the jury in that way the Judge effectively told them that the fourth element of the offence would be satisfied simply because the prosecution had led evidence of acts spanning a greater period than three days. The appellant submitted that a direction was required that the offence could only be proven if the jury were unanimously or by statutory majority agreed that two or more acts of sexual exploitation were committed within a period of not less than three days. The appellant contended that the error was compounded by the Judge then telling the jury that the timeframe from the first alleged offence to the last alleged offence was many years. The appellant submitted that this must have left the jury with the impression that the fourth element was satisfied simply because of the total timeframe in which the offending was alleged to have occurred.
When the impugned passages are read in context I do not consider that any such meaning is conveyed. The Judge was careful to qualify the comment he made in the second paragraph quoted above with the words “[s]o if all other things are satisfied”,[14] in other words, if you are satisfied beyond reasonable doubt of the complainant’s evidence. Moreover, that direction came immediately after the extended unanimity direction when the Judge directed the jury that it must be proved that the appellant committed at least “two acts of sexual exploitation” which must have been among the acts particularised on the information. In referring to them as “the two or more acts of sexual exploitation” in the paragraph quoted above, the Judge was plainly referring back to the two or more acts which he had directed the jury about in the previous paragraph. He was instructing the jury that they must be satisfied either unanimously or by statutory majority that those two acts had been proved beyond reasonable doubt.
[14] Emphasis added.
That the Judge was referring back to those acts is even plainer from the next sentence where he explained that the three day requirement meant that the time between the “first and the last acts which must be proved must be three days or more”.[15]
[15] Emphasis added.
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 OBJECTS
HIS HONOUR
Q.Just whatever your current memory is [GT].
A.Maybe a minute.
Q.Sorry, minute or minutes.
A.Maybe a minute, minute and a half.
XN
Q.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.
He was cross-examined and gave the following evidence:
Q.Right, so when you told the members of the jury today that you remembered this first occasion of Mr Hamra coming into the room to give you a hug, I’m sorry, where he touched you outside your clothing when he was saying goodnight, was that when you were eight or nine or was it when you were 13.
A.It would have been when I was eight or nine.
Q.When you say ‘would have’, because -
A.Was.
…
Q.So you do specifically remember this first occasion though, is that what you’re saying, correct.
A.Yes, that’s correct.
Q.Do you now remember it was when you were nine or 10 or eight.
A.Yes, I was little. I didn’t have pubic hair.
Q.But you’re saying you remember a first occasion at that stage, correct.
A.That’s correct.
GT was then cross-examined about a statement he gave the police on 23 September 2013 in which he had said:
I was very young when it started and I don’t recall exactly the first time, but I remember it started with touching over the top of my clothes and then it continued to progress to other types of abuse …
GT agreed that he had made that statement to police and then gave the following evidence:
Q.Were you saying there that you didn’t recall exactly the first time.
A.If you want an exact date, no, I don’t recall the exact date of the first time. I recall the first occurrence.
Q.Well, just to put that statement in context, did you actually say to the police ‘I need to be more specific about a comment I made in my initial statement. I mentioned that I recall the first time something happened, however, this is difficult for me due to the abuse being so regular and the time that has elapsed. I was very young when it started and I don’t recall exactly the first time, but I remember it started with touching over the top of my clothes and then it continued to progress to the other types of abuse that I’ve mentioned’. That’s the full paragraph, you’re welcome to have a look at it. Weren’t you there saying that you don’t specifically recall a first occasion.
A.No, they were - the police were asking for an exact date and I can’t give you an exact date, I can’t give you an exact time. I can give you an event where I can guarantee that it occurred, but I can’t give you an exact date.
Senior Counsel for the appellant then put a prior inconsistent statement to GT regarding the location of where he was sleeping. In a proofing session in January 2016, in answer to questions from the prosecutor, GT said that he was sleeping in the top bunk. In evidence GT said he did not remember saying that to the prosecutor. He said that he was not on the top bunk when the first act occurred. He maintained that his evidence that he was sleeping on the bottom bunk was correct.
Later GT was cross-examined about another prior statement that he had made to the effect that he could not specifically remember any abuse happening while his parents were in Fiji. He said as follows:
A.As I’ve said all along from my first statement, the only event I could actually give was when my brother had his car accident. This happened on major frequencies, not once, not twice, not three times, but major frequencies.
Q.So we take it from that that you can recall the specific incident about when your brother had the accident but with the other evidence you have given about other abuse are you saying it is really in terms of ‘It would have happened’.
A.That’s correct.
The upshot of this evidence was that GT recalled the first occasion of sexual exploitation, but he could not date it or link it to any event, as he could do with reference to the occasion of his brother’s accident. Therefore it was at least open to the Judge to refer to that evidence in this way.
The Judge directed the jury carefully about all of the evidence given by GT on the topic of the first occasion. Later in the summing up the Judge returned to the topic when summarising the evidence for the jury. His Honour reminded them:
The only occasion when he said he had a memory of specific acts was when his brother [BT] had that car accident and attended the Flinders Medical Centre.
…
As for the balance of his allegations, he said various sexual offences were committed against him of the type he described, but that he could not specifically identify them and said, you would remember, during the course of the evidence ‘But they would have happened’. He said that he knows those things happened and that, in effect, they happened so often that one merged with the other, but that he knows they happened.
Later, in the context of directing the jury as to the evidence about the offending on the night of BT’s accident, his Honour referred to this again:
You might remember I said a little earlier that [GT] said of all of the alleged abuse this is the only one in which he has a specific recollection.
Particularly in light of the Judge’s thorough and accurate summary of GT’s evidence on the topic, the jury would have been alive to any misdescription of it. In any event, in my view the Judge made no error. His reference to the evidence of GT on this topic was entirely accurate. I would dismiss this ground of appeal.
Ground 5: Verdict unreasonable and cannot be supported having regard to the evidence
I turn to ground 5, the complaint that the verdict of the jury is unsafe and unsatisfactory. The essence of the complaint is that in light of numerous defects and inconsistencies in the evidence of GT the jury ought to have entertained a reasonable doubt about the appellant’s guilt. The appellant referred to what he said were the “internal inconsistencies” in the evidence of GT. These inconsistencies included:
●what he had said in previous statements to police and what he said in evidence about the sleeping arrangements in the house;
●the statement he made to the police and the prosecutor in January 2016 that he was sleeping in the top bunk at the time of the first act of sexual exploitation in contrast to his earlier statements and his evidence in court that he always slept in a bottom bunk;
●the inconsistencies between GT’s evidence and RT’s evidence about the sleeping arrangements; and
●the inconsistency between GT’s evidence about the only occasion he purported to clearly remember being the night of the accident suffered by BT in 1982 when on RT’s version the appellant was at the hospital all night with them.
In summary the appellant complains that, in light of the vagueness of GT’s evidence generally and the lack of specificity and precision about the occasions he did purport to identify, it became almost impossible for the appellant to defend the allegations. These defects render the verdict unsafe and unsatisfactory.

The appellant conceded that somewhat generalised and less particular allegations may suffice for the purpose of a conviction under s 50 of the CLCA. However, he submitted that the evidence given by GT was generalised, vague and lacked specificity. GT only purported to remember one specific occasion that an act of sexual exploitation occurred, being the time when his brother was involved in a car accident. Senior Counsel submitted that in this context it became impossible for the appellant to properly defend himself against such allegations and the jury ought to have entertained a reasonable doubt about his guilt.
I deal first with the complaints about what were said to be inconsistencies between the evidence of GT and RT.
Sleeping arrangements
GT said in evidence that when the sexual interference first commenced the three boys, ST, BT and GT, all slept in bedroom three. There were two double bunk beds and a single bed in the room at that time. For a short period of approximately 12 to 18 months GT’s grandmother was living at the home and during this time she occupied bedroom two. After GT’s grandmother moved into a nursing home, BT moved into bedroom two. GT and ST remained in bedroom three. Some years later, when the two elder boys were a little older, BT and ST moved together into bedroom three. GT moved back into bedroom two.
The evidence of RT was even less certain about the sleeping arrangements. She said at one stage BT was in bedroom two and GT and ST were in bedroom three but they did swap over. She said:
A.At one stage [BT] was in bedroom 2 and the other two were in bedroom 3, but they did swap over but I can’t tell you exactly when they swapped over. [BT] went into two and [BT] and [ST] went into bedroom 3 but I can’t tell you when they actually swapped over.
Q.That’s all right, we will come to the swap-over in a minute. Just go a bit slower. At the time that the tutoring started, who was sleeping in bedroom 3.
A.Bedroom 3, I think it was [BT] and [ST] or it could have been [ST] and [GT], as I said, I’m not sure when they swapped over.
Later she said:
Q.When she left your house to go to Resthaven, I take it the sleeping arrangements for your sons were altered to utilise bedroom 2 -
A.That’s right.
Q.- to give them more room.
A.To give them more room, yeah.
Q.And did one or more of the boys move into bedroom 2.
A.Yes.
Q.Was it one or more.
A.One, one.
Q.Who was it.
A.I can’t remember whether it was [BT] or [GT], it was one or the other. It definitely wasn’t [ST].
Q.How long did those sleeping arrangements remain.
A.Well, when – [BT] didn’t leave home until he was in his early 20s and [GT], he was already - he was already in bedroom 2. He was in bedroom 2 from I think the time - it was before [BT] left school anyway. [BT] and [ST] preferred to be in the one room together, but I can’t tell you what year they swapped over.
It is plainly evident from the evidence as a whole that the sleeping arrangements of the three boys was fluid over the period in which the sexual abuse of GT occurred. The attack on GT’s credit is based on an assumption that RT’s evidence ought to have been preferred by the jury over GT’s evidence. In my view the respondent’s submission that the attack on GT’s reliability and credibility based on the inconsistency between his evidence and his mother’s evidence as to the sleeping arrangements cannot come close to undermining his credit. RT never purported to be definitive about her memory of when the boys swapped bedrooms. On more than one occasion she said she could not remember which boy slept where and when one or more of the boys moved into bedroom two, except she was sure it definitely was not ST. That she took that position is unsurprising.
For the same reason I consider that the attack on GT’s credit based on inconsistency between the first statement he gave as to how old he was when the abuse first started and the evidence he gave at trial cannot succeed either. In his first statement GT said that he thought he was about 13 when the appellant began to sexually interfere with him. In his evidence at trial he said he was around nine years old. He said it was in winter and it was not long after the appellant had begun to tutor ST.
In cross-examination he said that when he was told that BT’s car accident occurred earlier than he thought in 1982, he realised that the sexual abuse must have started earlier because in 1982 he was only 12. He was asked about this in cross-examination:
Q.So you do specifically remember this first occasion though, is that what you’re saying, correct.
A.Yes, that’s correct.
Q.Do you now remember it was when you were nine or 10 or eight.
A.Yes, I was little. I didn’t have pubic hair.
Q.But you’re saying you remember a first occasion at that stage, correct.
A.That’s correct.
Then, a little later, he reiterated:
Q.Were you saying there that you didn’t recall exactly the first time.
A.If you want an exact date, no, I don’t recall the exact date of the first time. I recall the first occurrence.
Q.Well, just to put that statement in context, did you actually say to the police ‘I need to be more specific about a comment I made in my initial statement. I mentioned that I recall the first time something happened, however, this is difficult for me due to the abuse being so regular and the time that has elapsed. I was very young when it started and I don’t recall exactly the first time, but I remember it started with touching over the top of my clothes and then it continued to progress to the other types of abuse that I’ve mentioned’. That’s the full paragraph, you’re welcome to have a look at it. Weren’t you there saying that you don’t specifically recall a first occasion.
A.No, they were - the police were asking for an exact date and I can’t give you an exact date, I can’t give you an exact time. I can give you an event where I can guarantee that it occurred, but I can’t give you an exact date.
The prosecutor was not permitted in re-examination to clarify specifically with GT why he had changed his mind about the timing of when the sexual interference started. Nevertheless, I consider it is a reasonably clear inference that because he was told by BT that the car accident, which he did remember, had happened in 1982 he realised he must have been younger than 13.
I further consider the reference made to the time being when he was “little” and “didn’t have pubic hair” as telling.
The trips to Goolwa
It was submitted that there were inconsistencies between the evidence of RT and GT with regards to trips to Goolwa. It was submitted that RT gave evidence that GT never went alone to Goolwa. It was submitted that GT said on occasions he did travel to Goolwa alone with the appellant.
A closer examination of the whole of the evidence reveals that in fact there appears to be no real inconsistency between the evidence of RT and GT on this topic.
In examination-in-chief initially GT said when questioned about the trips to Goolwa:
Q.During the period of time we are talking about did you on occasion go to Goolwa.
A.Yes.
Q.Who did you go there with.
A.I would have either gone with my family or sometimes with Uncle Steve on his own.
Q.Was Mr Hamra always present at Goolwa when you went there.
A.Yes.
…
Q.If your parents drove you down do they generally stay or do they sometimes drop you down and leave.
A.It would depend, sometimes they would stay, but often it was during school holidays where they would drop us off and leave us for a few days.
Q.When you say ‘us’, do you refer to you and your brother.
A.Yes.
Q.Were there occasions where you were dropped off at Goolwa by your parents on your own.
A.Yes.
Q.Did you stay on those occasions with Mr Hamra.
A.Yes.
In cross-examination however he clarified that he had never gone to Goolwa on his own with the appellant:
A.No, I have never gone on my own personally. There have always been other children there.
Q.And Mr Hamra’s family was there.
A.No, they weren’t.
Q.But many of the times, correct.
A.Sometimes.
GT had given evidence that acts of sexual exploitation occurred more than once at Goolwa and in fact that it had occurred every time he went to stay at Goolwa. The evidence of GT was never that the acts of sexual exploitation only occurred when he was alone with the appellant at Goolwa.
In her evidence RT was asked about the trips to Goolwa. She said:
Q.Were there occasions when your boys went to Goolwa with the accused without you being there.
A.Yes.
Q.On how many occasions.
A.I honestly can’t remember, not a lot.
Q.Did all the boys on the occasions that we’re talking about go to Goolwa.
A.No.
Q.Were there occasions when one or two of them rather than the three went to Goolwa.
A.Yeah.
Q.Did [GT] go to Goolwa with the accused in the absence of his brothers.
A.No.
Q.Did [GT] on occasion go to Goolwa with one or other of his brothers.
A.Yes.
It is clear from the evidence of GT that the issue of who went to Goolwa with GT and the appellant and when each trip occurred did not have a great bearing on what he described happening there. GT’s evidence was plain that he was sexually interfered with every time he went to Goolwa, whether in company or not.
Prior inconsistent statements
The appellant relied on a previous statement of RT to the effect that the appellant did go to the hospital on the night of BT’s accident and remained with them until the early hours of the morning. This was said to be in conflict with the evidence of GT that the only specific occasion of sexual interference that he could recall was the night that BT went to hospital following the accident.
Despite extensive questioning of RT on the topic of the prior statement she had made to the effect that the appellant accompanied them to the hospital that night, she remained adamant that, on further reflection, the appellant did not go to the hospital on the night in question. There was in reality no conflict between the evidence of RT and GT about that.
I make the general observation that the appellant has pointed to a number of discrepancies in the evidence of RT and GT, both internally and as between each other, which the jury were entitled to regard as being peripheral to the central allegations made by GT. Some lapses of memory and mistakes are almost inevitable in the recounting of events which occurred some 30 years previously.
It is significant that all of the arguments which formed the basis of this ground of appeal were put to the jury forcefully by senior counsel for the appellant. Most of them were referred to by the Judge in an admirably clear and concise summing up. There is no reason to apprehend that the significance of any of those arguments was lost on the jury. In the end it was open to the jury to prefer the evidence of the complainant over the evidence of RT on matters such as who went to Goolwa, when they went, the sleeping arrangements of the three boys and other matters. GT did not maintain a position on any matter which was ultimately proved to be wrong in any material particular.
I have considered the evidence carefully in accordance with the requirements of M v The Queen.[16]None of the matters raised by the appellant, either alone or collectively, gives rise to a concern there has been a miscarriage of justice.
[16] (1994) 181 CLR 487.
The appellant’s final complaint under this ground, that the evidence is just too sparse and lacking in specificity to sustain a conviction under s 50(1) of the CLCA, must be rejected. Notwithstanding the lack of particulars, GT’s evidence reads as a coherent and I might add compelling account of repeated abuse over a long period, many years ago.
Finally, as part of this ground of appeal the appellant pointed to the forensic disadvantage due to the passage of time which gave rise to, amongst other things, the inability to locate any passports for the Fiji trips and the unavailability of any detailed records from the Flinders Medical Centre which might have shed more light on the date of the car accident involving BT. No complaint is made as to the adequacy of the direction which the trial Judge gave as to forensic disadvantage. Indeed no complaint could be made as the Judge drew to the jury’s attention the significance of each and every one of the forensic disadvantages now relied on by the appellant.
As the jury were properly directed on the topic of forensic disadvantage, the fact that there was some forensic disadvantage to the appellant, and indeed to the complainant, by virtue of the delay of some 30 years and the other matters referred to, cannot be relied on to undermine the safety of the conviction. This is because Parliament amended the legislation to enable the prosecution of historical complaints of sexual abuse. In enacting s 34CB of the Evidence act 1929 (SA) Parliament recognised the need for a jury in appropriate cases to take into account any forensic disadvantage when scrutinising the evidence. However, forensic disadvantage caused by lengthy delay between the alleged events and a trial cannot in itself provide a proper basis to undermine any conviction.
For these reasons, I have reached the conclusion there is no basis for this Court to interfere with the verdict of guilty. I would dismiss the appeal.

[2018] SASCFC 20

23 March 2018

Key Legal Topics

Areas of Law

Criminal Law

Legal Concepts

Appeal

Misdirection and Non-Direction

Verdict Unreasonable or Insupportable Having Regard to Evidence

Sexual Offences