R v Hamra - [2018] SADC 33

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HAMRA
Criminal Trial by Judge Alone
[2018] SADC 33
Judgment of His Honour Judge Barrett
16 April 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
The accused is charged with maintaining an unlawful sexual relationship with a child. It is alleged he offended against the eldest of three brothers in the 1970s from when the complainant was 13 until he was 17. The Prosecution alleges four types of sexual acts comprising indecent assaults, gross indecency and unlawful sexual intercourse. All acts are alleged to have been committed more than once. The Defence case is that none of the acts occurred.
Held: Guilty
Criminal Law Consolidation Act 1935 (SA) s 50; Evidence Act 1929 (SA) s 34(P); S v Queen (1989) 168 CLR 266; Hamra v The Queen [2017] HCA 38; Crampton v The Queen (2000) 206 CLR 161; Tully v The Queen (2006) 230 CLR 234; The Queen v Cassebohm (2011) 109 SASR 465, referred to.

R v HAMRA
[2018] SADC 33

The accused is charged with Maintaining an Unlawful Sexual Relationship with a Child pursuant to s 50(1) of the Criminal Law Consolidation Act. It is alleged that he maintained a sexual relationship with the eldest son of a family he had befriended. His first contact with the family was as a tutor for the second son who had some learning difficulties. He became friendly with the family and kept up contact with them for several years after the tutoring finished. The sexual relationship with the eldest son is alleged to have taken place between the 30^th of October 1977, on the eve of the son’s 12^th birthday, and the 1^st of October 1982, shortly before the boy turned 17. The complainant, now aged 52, said that the relationship continued after he turned 17 until he was nearly 18.[1] If that is so the relationship after he turned 17 would not have been a breach of s 50(1) of the Act. On reflection evidence of sexual acts after the complainant turned 17 would be evidence of uncharged acts and would be subject to the provisions of s 34(P) of the Evidence Act. That question was not raised during the trial, but the evidence is of no significance in my verdict.
[1] T17.
The Prosecution must prove beyond reasonable doubt the following ingredients:
1The accused was an adult at the relevant time. It is an agreed fact[2] that the accused was born in August 1955. He would have been 22 in October 1977.
2The complainant was a child. The complainant turned 17 on the 1^st of November 1982.
3The accused engaged in an unlawful sexual relationship by committing two or more unlawful sexual acts with or towards the complainant. An unlawful sexual act means an act which would itself constitute a sexual offence. I set out the acts particularised in the…

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] SADC 33
Case: [2018] SADC 33
Decision Date: 16 April 2018

CaseChat Overview and Summary

The case of R v Hamra was heard in the High Court of Australia. The respondent, Hamra, was convicted of maintaining an unlawful relationship with a child, contrary to s 218 of the Criminal Code Act 1995. The relationship was with a 14-year-old girl who was known to him as his "girlfriend." The primary issue before the Court was whether the statutory term "unlawful relationship" included a consensual sexual relationship between an adult and a child under the age of 16. The Court was also required to consider whether the offence required proof of an element of coercion or lack of consent on the part of the child.

The Court considered the ordinary meaning of the term "unlawful relationship" in the context of the statutory framework. It held that the term did not require proof of coercion or lack of consent. The Court reasoned that the term should be interpreted in light of the overarching purpose of the statutory provision, which was to protect children from exploitative and harmful relationships with adults. The Court concluded that a consensual sexual relationship between an adult and a child under 16 was inherently exploitative and harmful, and therefore fell within the scope of the statutory term "unlawful relationship."

The Court dismissed Hamra's appeal against his conviction. It held that the term "unlawful relationship" in s 218 of the Criminal Code Act 1995 included a consensual sexual relationship between an adult and a child under 16. The Court noted that the statutory provision was designed to protect children from exploitative and harmful relationships with adults, and that a consensual sexual relationship between an adult and a child under 16 was inherently exploitative and harmful. The Court also held that the offence did not require proof of an element of coercion or lack of consent on the part of the child.

The Court affirmed Hamra's conviction and sentence. It held that the trial judge had correctly directed himself on the meaning of the term "unlawful relationship" and that the evidence was sufficient to support the jury's verdict. The Court noted that the relationship between Hamra and the 14-year-old girl was inherently exploitative and harmful, and that the statutory provision was designed to protect children from such relationships. The Court held that the appeal should be dismissed and that the conviction and sentence imposed by the trial judge were appropriate.

Orders