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R v HAMRA

R v HAMRA

Case [2016] SADC 4 21 January 2016

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DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HAMRA
Criminal Trial by Judge Alone
[2016] SADC 4
Reasons for Ruling of His Honour Judge Tilmouth
21 January 2016
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - GENERALLY
Application for severance of counts granted on the basis that there is an insufficient degree of detail or similarity in the evidence on each count to justify 'cross-admissibility'.
Criminal Law Consolidation Act 1935 (SA) s 50(1), s 278(1), s 278(2a)(b); Evidence Act 1929 (SA) s 34P(2)(a), s 34P(2)(b), s 34P(3); De Jesus v The Queen (1986) 61 ALJR 1; PNJ v Director of Public Prosecutions (2010) 27 VR 146; R v MAP [2006] QCA 220; R v N, SH [2010] SASCFC 74; R v Rapson [2014] VSCA 216; R v RR [2011] VSCA 442; Harris v The Queen [2015] VSCA 112; R v Velkoski [2014] VSCA 216; R v AE [2008] NSWCCA 52; R v March [2014] SASCFC 54, referred to.
R v C, CA [2013] SASCFC 137; CGL v Director of Public Prosecutions (2010) 24 VR 486; Phillips v The Queen (2006) 225 CLR 303, applied.
Page v Director of Public Prosecutions [2014] VSCA 357, considered.

R v HAMRA
[2016] SADC 4
An application for severance

The accused is before the court charged with two counts of sexual exploitation of a child pertaining to two brothers. The offences allegedly occurred between 1977 and 1982 with respect to count 1, and between late October 1979 and early October 1987 with respect to count 2. There is an application by the defence for severance of the counts, on the basis that the evidence on each is not cross-admissible on the other.
On 15 January I made an order for severance. What follows are the reasons for reaching that conclusion.
The prosecution position
The prosecution argues that joinder is appropriate, in the first place because the underlying nature of each charge which ‘form, or are a part of, a series of offences of the same or a similar character’, as provided for in s 278(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). It may be accepted that they are offences of a similar character, inasmuch as they charge exactly the same offence of persistent sexual exploitation of a child pursuant to s 50(1) of the CLCA: De Jesus v The Queen.[1]
[1] (1986) 61 ALJR 1.
The respective particulars of each count entail sustained sexual misconduct over a partially coincidental period of time, of two brothers living together under the same roof, comprised of touching their respective genitals, the accused placing his penis between the bottom and the legs of the complainants respectively, by causing each to touch his penis and performing fellatio upon the complainant in count 1, and having the complainant perform fellatio upon him in count 2.
The evidence pertinent to one…

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 [2016] SADC 4
Case: [2016] SADC 4
Decision Date: 21 January 2016

CaseChat Overview and Summary

In the District Court of South Australia, the defendant Hamra was charged with two counts of sexual exploitation of a child. The alleged offences occurred with respect to two brothers, with count 1 involving acts between 1977 and 1982, and count 2 from late October 1979 to early October 1987. The defence moved for severance of the counts on the basis that the evidence of each was not sufficiently similar to justify cross-admissibility. The court had to determine whether the evidence on each count was sufficiently detailed and similar to satisfy the criteria for cross-admissibility, which requires the probative value of the evidence to substantially outweigh any prejudicial effect.

The prosecution argued that the charges were similar in nature and could be considered a series of offences of the same character. They pointed to common attributes in the allegations made by the respective complainants, such as the timing, location, and manner of the abuse. The defence, however, highlighted significant differences between the two accounts, including the timing of the abuse and the specific acts alleged. The court considered the relevant statutory provisions and case law, which require a high degree of similarity in the evidence for it to be cross-admissible.

The court found that the similarities between the two accounts were not sufficiently distinctive or unusual to meet the threshold for admissibility. The common attributes of the abuse, such as the timing and location, were too typical of this kind of offending to be probative. The court concluded that the evidence on each count was not sufficiently probative to substantially outweigh any prejudicial effect cross-admission might produce. Therefore, the court ordered the separate trial of both counts.

The court's reasoning was based on the principles set out in the relevant statutes and case law, which require a strong degree of probative force and a specific connection with the issues in the trial. The court found that the similarities between the two accounts were not distinctive enough to meet these requirements, and thus the evidence on each count could not be cross-admitted. The court's decision was based on a detailed analysis of the evidence and the applicable legal principles, and it was consistent with the relevant case law. The court's order for the separate trial of both counts was in line with the statutory provisions and the requirements for admissibility of evidence.

Orders