R v Hamra

Case [2016] SASCFC 130

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v HAMRA

[2016] SASCFC 130

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly, The Honourable Justice Peek, The Honourable Justice Nicholson and The Honourable Justice Lovell)

8 December 2016

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST ACQUITTAL

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - PRIMA FACIE CASE OR CASE TO ANSWER

Appeal against acquittal. Trial Judge ruled that there was no case to answer.

Respondent charged with persistent exploitation of a child contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA) (CLCA).

BT, the complainant, alleged that between 30 October 1977 and 1 November 1982 the respondent committed more than one act of sexual exploitation at Morphett Vale and another place. It was specifically alleged that the respondent touched BT’s genitals, placed his penis between BT’s bottom, caused BT to touch his penis and performed fellatio on BT.

At trial, certain parts of BT’s evidence were vague, other parts conflicted with evidence given by BT’s mother.

BT gave evidence that while living at home he slept in two different bedrooms during different periods of his life. BT’s evidence included that the respondent interfered with him in each of those bedrooms, and that the offending was more frequent while he lived in the second bedroom. BT also gave evidence that at one stage his parents went on holiday to Fiji, and that while they were away the respondent’s offending increased in severity. The instances of fellatio only occurred while BT’s parents were on holiday. 

At the conclusion of the complainant’s evidence, counsel for the respondent queried whether the evidence sufficiently particularised the instances of specific offending to constitute an offence under s 50 of the CLCA in accordance with R v Johnson [2015] SASCFC 170. Counsel for the respondent submitted that as a result of the lack of particularity there was no case to answer. The prosecutor sought to delineate instances of the offending on the basis of the evidence being sufficiently particularised with reference to, for example, certain bedrooms, certain timeframes spent in those bedrooms, and other details.

After hearing argument on the no case to answer submission, the Judge directed a verdict of acquittal. The Judge held that the allegations were generalised and non-specific as to times and dates, were not able to be related to a particular incident or occasion. The trial Judge held it was impossible to identify two or more requisite instances of offending for the purposes of s 50 CLCA.

The complainant commenced the appeal against the acquittal under s 352(1)(ab) of the CLCA. The Respondent submitted the appeal was incompetent as s 4 of the Criminal Law Consolidation (Appeals) Amendment Act 2000 (SA) (the 2000 Appeals Amendment Act) precluded s 352(1)(ab) from operating retrospectively and that subsequent…

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R v Hamra [2016] SASCFC 130
Case
[2016] SASCFC 130
Decision Date

CaseChat Overview and Summary

This case concerned an appeal by the Director of Public Prosecutions against an acquittal in the District Court. The respondent, R v Hamra, was charged with maintaining an unlawful relationship with a child, contrary to section 50 of the Criminal Law Consolidation Act 1935 (SA) (CLCA). The complainant, BT, alleged that the respondent had engaged in sexual acts with him over a period when BT was between approximately 11 and 16 years old. The trial judge had directed himself that the evidence presented was not capable of establishing the elements of the offence, leading to an acquittal.

The legal issues before the Full Court of the Supreme Court of South Australia were whether the trial judge erred in law by concluding that the evidence was insufficient to make out a prima facie case, and consequently, whether the acquittal should be quashed and a new trial ordered. The Court also considered the application of double jeopardy principles in the context of an appeal against an acquittal.

The Full Court reasoned that the trial judge had erred in law by failing to properly consider the evidence in relation to the elements of the offence. The Court noted that while the complainant's evidence regarding the precise dates and circumstances of each alleged act was not entirely precise, this was a characteristic of offences under section 229B(1A) of the Code, which were intended to balance the need for specificity with the reality that complainants may not be able to recall exact details. The Court emphasised that the statutory requirement for the prosecution to prove an act constituting an offence of a sexual nature on three or more occasions must be given full effect, acknowledging the risks of generalised evidence. The Court also affirmed the fundamental common law principle against double jeopardy, stating that an acquittal by a superior court should generally be final, but that this principle did not preclude an appeal against an acquittal in circumstances where an error of law had occurred.

The Full Court allowed the appeal, quashed the acquittal, and ordered a new trial pursuant to sections 353(2a) and (3) of the CLCA. The Court clarified that its power under section 353 of the CLCA did not permit it to remit the case for further hearing before the District Court, distinguishing this from the powers available on appeals from the Magistrates Court.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Before turning to the arguments on appeal it is convenient to set out the relevant factual background and the course of proceedings at trial.Factual background BT was born on 1 November 1965. He was 50 years of age at the date of trial. Although BT was unable to give evidence about specific occasions he recalled, his evidence was as follows. BT lived in a three bedroom house at Morphett Vale with his parents and two younger brothers. At some stage his grandmother moved in for approximately 12 to 18 months before she left to live in a nursing home. BT said he was about 11 when he first met the respondent at the home of friends of his parents. He said it was at a surprise birthday party for his mother but he could not remember how old she was. BT’s mother later said in evidence that there was a surprise birthday party for her at her friends’ home on either her 28th or 29th birthday. She said at that time BT was about five or six years old. BT’s mother was unable to recall specifically the first occasion when she met the respondent however she did confirm that it was at the home of the friends who had thrown her a surprise birthday party. BT thought he was about 11 years old at that time, although he was not sure. BT’s evidence about the sleeping arrangements in the home were that for a time he slept in the third bedroom of the house with his two younger brothers. After his grandmother moved into the nursing home when he was about 12 or 13, he then slept alone in the second bedroom which she had previously occupied. BT slept there alone for about three years between the age of approximately 13 and 16. BT said that on occasions when the respondent slept at their home he sometimes slept in the lounge room in a sleeping bag and on other occasions he would sleep in the same bedroom (bedroom three) with BT and his two brothers. The respondent slept on the floor between the beds. Whilst still sleeping with his two younger brothers in the third bedroom, BT said he awoke one night and realised that the respondent was in the bed with him because he recognised the smell of the cologne that he wore. BT said that on that first occasion when he realised the respondent was in bed with him nothing happened. However it happened again and at some stage the respondent started to touch BT’s genitals, first over the top of his pyjamas. BT’s evidence was that the first occasion happened whilst he was still sleeping in the third bedroom with his two younger brothers. Although in cross examination BT was uncertain as to whether on that occasion the respondent was sleeping in the lounge or in the third bedroom with the boys, he was firm in his evidence that the first occasion that he was sexually interfered with by the respondent was in the third bedroom. He was unable to recall when the touching of his genitals inside of the pyjamas commenced but he said it happened at some stage later. After BT moved into the second bedroom, he said the respondent’s sexual interfering became more frequent. At that stage the respondent got BT to touch his genitals as well. By the time BT was sleeping in the second bedroom he said the respondent during these episodes used to remove BT’s pyjamas and fondle him. The respondent would often pull BT’s pants partly down but never removed them completely. The respondent would then get BT to stroke his penis. Sometimes BT’s pyjama pants were wet after he ejaculated. BT also remembered that on some occasions the respondent’s clothing was wet because he too ejaculated during these episodes. These incidents always ended with one or both of them ejaculating.

Evidence

Evidence Before The Court

Their Honours later further stated:[37]Having regard to the evidence, it is possible that individual jurors reasoned that certain categories of incident did not occur at all but that one or two did, and more than once, thus concluding that the accused did an act constituting an offence of a sexual nature on three or more occasions without directing attention to any specific act. It is, thus, impossible to say that the jurors must have been agreed as to the appellant having committed the same three acts. Indeed, it may be that, had the jury been properly instructed, they would have concluded that the nature of the evidence made it impossible to identify precise acts on which they could agree. It follows that the accused was deprived of a chance of acquittal that was fairly open. (Emphasis added)[37] (1997) 191 CLR 417, 424. In a similar vein, Kirby J stated:[38][38] (1997) 191 CLR 417, 428, 429 and 432.… The provisions of s 229B(1A) are clearly intended to strike a balance between the need for a measure of precision in the proof of the offence, on the one hand, and, on the other, the need to recognise that it may not be possible for a complainant to identify exactly the dates and circumstances of the events said to prove the maintenance of the relationship.…The Court of Appeal recognised the particular dangers which general allegations of sexual dealings, lacking in detail, could present for the fair trial of a person accused of an offence against s 229B of the Code. It accepted the over-riding obligation of a trial judge to warn the jury about the dangers inherent in imprecise evidence. It therefore determined that the appellant was entitled to particulars of the offence against s 229B(1) of the Code, although having regard to the terms of s 229B(1A), he was not entitled to have specific dates or exact circumstances. The Court of Appeal concluded:Although s 229B of the Code was undoubtedly intended to avoid the degree of specificity which might otherwise have been required, necessitating a number of separate, fully detailed allegations, it stops short of authorising trials conducted as a contest between generalised assertions which can only be met by generalised denials.…Section 229B(1A) provides that the prosecution must prove that the offender has done an act constituting an offence of a sexual nature on three or more occasions. This statutory prerequisite must be given full effect. This is because it amounts to a parliamentary recognition of the risks involved in the offence. Those risks include the exposure of a person to conviction upon generalised evidence which it may be difficult or impossible to disprove, which need not be confirmed by testimony other than that of the complainant and which may result in a trial involving little more than accusation and denial. These risks provide reasons, quite apart from the general rule of construction ordinarily applied to a criminal statute, for adopting an approach to the preconditions laid down by Parliament which is rigorous and defensive of the fair trial of the accused.(Emphasis added)

Decision

Reasons for decision

KOURAKIS CJ PEEK J
For these reasons I consider that the Judge erred in law in directing himself that this evidence was not capable of making out the elements of the offence contrary to s 50 of the CLCA. It follows that the Judge fell into error in returning a verdict of acquittal. Conclusion I would allow the appeal. Sections 353(2a) and (3) of the CLCA provide:(2a)On an appeal against acquittal brought by the Director of Public Prosecutions, the Full Court may exercise any one or more of the following powers:(a) it may dismiss the appeal;(b) it may allow the appeal, quash the acquittal and order a new trial;(c) it may make any consequential or ancillary orders that may be necessary or desirable in the circumstances.(3)If the Full Court orders a new trial under subsection (2a)(b), the Court—(a) may make such other orders as the Court thinks fit for the safe custody of the person who is to be retried or for admitting the person to bail; but(b) may not make any order directing the court that is to retry the person on the charge to convict or sentence the person. I would quash the acquittal and order a new trial. The order for a new trial mandated by statute does not allow for an order to resume the completed trial in which the order of acquittal was wrongly made. The power conferred on the Court of Criminal Appeal by s 353 of the CLCA may be contrasted with the power conferred in appeals from orders made by the Magistrates Court in its criminal jurisdiction. Section 42(5) of the Magistrates Court Act 1991 (SA) provides:42—Appeals…(5)On the hearing of the appeal, the appellate court may exercise any one or more of the following powers:(a) it may confirm, vary or quash the judgment subject to the appeal and, if the Court thinks the interests of justice so require, it may vary or quash any other judgment given in the same or related proceedings;(b) it may remit the case for hearing or further hearing before the Magistrates Court;(c) it may make any other order (including, subject to subsection (5a), an order for costs) that may be necessary or desirable in the circumstances.… It is to be noted that in the case of an appeal from the Magistrates Court the Supreme Court may remit the case for “hearing or further hearing” before the Magistrates Court. It is the power to remit for further hearing which is tellingly absent from s 353 of the CLCA. In so providing, s 42 of the Magistrates Court Act 1991 (SA) replicates s 177(2) of the Justices Act 1921 (SA) pursuant to which the Supreme Court could “remit the case for hearing or for further hearing before the same or any other competent court of summary jurisdiction”.[23][23] Justices Act 1921-1975 (SA), s 177(2)(d); Summary Procedure Act 1921 (SA)…(2) Upon the hearing of the appeal the Supreme Court may-(a) adjourn the same from time to time;(b) mitigate any penalty, forfeiture, or sum;(c) affirm, quash, or vary the conviction, order, or adjudication appealed from, or substitute or make any conviction, order, or adjudication which ought to have been made in the first instance; (d) remit the case for hearing or for further hearing before the same or any other competent court of summary jurisdiction; and(e) make such further or other order as to costs or otherwise as the case requires.…

Ratio Decidendi

Legal Principle Established

Established by: KOURAKIS CJ, PEEK J

In the decision of this Court in R v Brougham (Brougham), it was observed:[80][7] The application of the double jeopardy principles is all the stronger in a case such as the present which concerns an application for permission to appeal against an acquittal rather than a sentence; at common law, citizens traditionally had a fundamental right to be spared the further jeopardy of an appeal from an acquittal after a trial in a superior court. The basis of the double jeopardy principles was described thus by President Kirby (as he then was) in the New South Wales Court of Appeal decision of Cooke v Purcell:[81] It is to be noted that, at the heart of this principle, as so expounded, is not the avoidance of the risk of double punishment as such but the avoidance of vexation, the misuse of the great authority of the State and the potential oppression that may be involved in double trial and double risk of conviction. The principle has a basis different in kind from the related rules which promote finality of litigation, such as res judicata and issue estoppel. … The principle at stake in the development of the double jeopardy rule is grounded in something more fundamental than the prevention of re-litigation or the promotion of finality of proceedings. It is based, ultimately, upon a perceived principle fundamental to civil rights.This much has been recognised in jurisdictions like our own which, unlike the United States, provide no constitutional guarantee against double jeopardy. Thus in Cullen v The King[1949] SCR 658 at 668, long before the Charter, Rand J in the Canadian Supreme Court said: At the foundation of the criminal law lies the cardinal principle that no man shall be placed in jeopardy twice for the same matter and the reasons underlying that principle are grounded in deep social instincts. It is the supreme invasion of the rights of an individual to subject him by the physical power of the community to a test which may mean the loss of his liberty or his life; and there is a basic repugnance against the repeated exercise of that power on the same facts unless for strong reasons of public policy.…[9] Looking at the broader perspective, a number of the judgments of the High Court refer to the double jeopardy principles in terms such as deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy.[82]Such statements are not mere incantations to be recited and as quickly discarded. Although the statutory position is that the prosecution may now apply for permission to appeal against such a verdict in certain circumstances, this Court will have close regard to the double jeopardy principles when considering whether to grant such an application. It remains the case that an acquittal by a superior court should, except in exceptional circumstances, be final. (Emphasis added)[80] [2015] SASCFC 75.[81] (1988) 14 NSWLR 51, 55-56.[82] Malvaso v The Queen (1989) 168 CLR 227, 234; Everett v The Queen (1994) 181 CLR 295, 305; Munda v State of Western Australia (2013) 249 CLR 600, 628.Consideration