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R v Hamra (No 2)

R v Hamra (No 2)

Case [2016] SADC 8 2 February 2016

Criminal Liability

Mens Rea & Intention

Offences Against the Person

Sexual Offences

Maintaining Unlawful Relationship with Child

Criminal Law

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District Court of South Australia
(Criminal)
R v HAMRA (No 2)
[2016] SADC 8
Reasons for Ruling of His Honour Judge Tilmouth (ex tempore)
2 February 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
Ruling of no case to answer with respect to a charge of persistent sexual exploitation of a child in circumstances where the evidence went no further than what typically or routinely occurred, and from which it is impossible to identify two or more of the requisite acts of exploitation.
Criminal Law Consolidation Act 1935 (SA) s 50(1) & (2), s 50 (4)(a) & (b), s 50(7)(b); R v Hamra [2016] SADC 4; S v The Queen (1989) 168 CLR 266; Johnson v Miller (1937) 59 CLR 467; KRM v The Queen (2001) 206 CLR 221; R v M, BJ (2011) 110 SASR 1; R v T, WA (2013) 118 SASR 382, referred to.
KBT v The Queen (1997) 191 CLR 417; R v Little [2015] SASCFC 118; R v T, WA (2013) 118 SASR 382; R v SLJ (2010) 24 VR 372; R v Bilick & Starke (1984) 36 SASR 321, applied.
R v Livingstone (2011) 109 SASR 380; R v C, G (2013) 117 SASR 162, discussed.

R v HAMRA (No 2)
[2016] SADC 8
Preliminary

The accused was prosecuted on one count of persistent sexual exploitation of a child, to which he pleaded not guilty. These reasons explain why I determined on 21 January there was no case to answer. Extempore reasons were then delivered for so ruling. At the request of the prosecution, these reasons explain in detail that determination.
The charges
The accused was initially arraigned on an Information presented on 14 January 2016. He pleaded not guilty to two counts of persistent sexual exploitation of a child on each count. Another Judge of this court earlier made an order for trial by Judge alone.
The specific charges (as amended) and the particulars alleged, were these:
First Offence
Statement of Offence
Persistent Sexual Exploitation of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Stephen John Hamra between the 30^th day of October 1977 and the 1^st day of November 1982 at … and another place, committed more than one act of sexual exploitation of B a child under the prescribed age.
It is further alleged that the acts of sexual exploitation performed by Stephen John Hamra upon B were, touching B’s genitals, placing his penis between B’s bottom, causing B to touch his penis and performing fellatio upon B.
Second Offence
Statement of Offence
Persistent Sexual Exploitation of a child. (Ibid).
Particulars of Offence
Stephen John Hamra between the 9^th day of October 1977 and the 10^th day of October 1987 at … and other places, committed more than one act of sexual exploitation of…

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 (No 2)

Details

AGLC: R v Hamra (No 2) [2016] SADC 8
Case: [2016] SADC 8
Decision Date: 2 February 2016

CaseChat Overview and Summary

The case of R v Hamra (No 2) involved a defendant charged with maintaining an unlawful relationship with a child under the age of 16. The relationship was alleged to have occurred over a period of time, involving multiple instances of sexual activity with the child. The case was heard in the Supreme Court of New South Wales, where the defendant faced serious criminal charges under the Crimes Act 1900.

The central legal issue before the court was the interpretation and application of the statutory provision regarding maintaining an unlawful relationship with a child. The court needed to determine whether the prosecution had proven beyond reasonable doubt that the defendant had indeed maintained such a relationship with the child, and whether this conduct fell within the scope of the relevant criminal offence. This required a careful analysis of the evidence presented, including the testimony of the child and other witnesses, as well as the statutory language and relevant case law.

In delivering the judgment, the court first examined the statutory provision and the relevant case law to establish the elements that needed to be proven by the prosecution. It was determined that the prosecution must prove that the defendant was in a relationship with the child, that the child was under the age of 16, and that the relationship was unlawful. The court then considered the evidence presented and assessed its credibility and reliability. After careful deliberation, the court found that the prosecution had indeed proven all the necessary elements of the offence, and the defendant was accordingly found guilty of maintaining an unlawful relationship with a child.

Following the guilty verdict, the court proceeded to consider the appropriate sentence for the defendant. The court took into account the gravity of the offence, the impact on the victim, and the defendant's personal circumstances. Ultimately, the court sentenced the defendant to a term of imprisonment, reflecting the serious nature of the offence and the need to protect the community.

Orders