R v Hamra (No 2)
[2016] SADC 8
•2 February 2016
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 8Preliminary
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 30th day of October 1977 and the 1st 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 9th day of October 1977 and the 10th day of October 1987 at … and other places, committed more than one act of sexual exploitation of G a child under the prescribed age.
It is further alleged that the acts of sexual exploitation performed by Stephen John Hamra upon G were, touching G’s genitals, placing his penis between G’s legs, causing G to touch his penis and causing G to perform fellatio upon him.
The significance of the opening dates alleged in the case of each charge, are that they were when the relevant events are alleged to have commenced. The significance of the closing dates lies in the fact that they are the day before each complainant turned 17 years of age. The charges are particularised in this way because the ‘prescribed age’ as pleaded therein is 17 years, as designated by s 50(7)(b) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA).
In an earlier ruling I ordered severance of the counts on the basis that the similarities in the account of each complainant were insufficient to sustain cross-admissibility: R v Hamra.[1] The prosecution then elected to proceed with the trial of count 1 first, relating to B. Accordingly it is necessary to confine further consideration largely to the evidence on count 1.
[1] [2016] SADC 4.
Underlying facts
The complainants are brothers, B and G. B was between the ages of 13 to 16 when the events on count 1 allegedly took place, whereas G was between the ages of 9 or 10 and 16 years when the events surrounding count 2 allegedly occurred. B was aged 50 at the time of giving evidence and G is aged 45. They have a brother S, now aged 48 years.
Stated in brief terms for the present, the broad circumstances are that the accused commenced tutoring S who was experiencing trouble with his grades in school, at some indefinite time probably in the late 1970’s. The accused was a school teacher at that time at a different school from that attended by the brothers. He became a close friend of the family. After a time, he commenced staying for dinner and then often overnight at weekends in the family home, situated in the southern suburbs of metropolitan Adelaide. He would on those occasions sleep in a sleeping bag in the lounge room.
It is alleged with reference to count 1 that the accused commenced sexually abusing B, which continued until B turned 18 years of age. The abuse would occur in his bedroom at night and included touching his genitals, the accused placing and rubbing his penis between B’s buttocks, causing B to touch or masturbate the accused’s penis and the accused performing fellatio upon B. It is further alleged that this kind of abuse also occurred at the accused’s parents home situation in the South-Western suburbs of Adelaide.
Elements of persistent exploitation of a child
The law makes it an offence for an adult, over a period of not less than three days, to commit more than one act of sexual exploitation. The prosecution must prove beyond reasonable doubt each one of five ingredients, namely:
1. At the time of the alleged offending the accused was an adult. This is not in dispute.
2. The accused committed more than one act of sexual exploitation against the complainant. An act of sexual exploitation is a sexual offence at the time allegedly committed. Of course the consent or otherwise of the complainant is irrelevant.
3. The accused committed at least two acts of sexual exploitation. The two or more acts must be among the acts particularised in the Information, as to which a jury must agree on which of the particular acts are found proven.
4. The accused committed the two or more acts of sexual exploitation over a period of at least three days. That simply means the time between the first and the last act must be proven to be three or more days.
5. That at the time the accused committed the acts of sexual exploitation, the complainant was under 17. This for the greater part is not in dispute. However any suggestion of sexual abuse after the age of 17, clearly cannot amount to an act of sexual exploitation, because it would have occurred outside the ‘prescribed age’.
It is as to the third element of the offence that the defence submission was directed. The submission focused heavily on the language of s 50 of the CLCA creating the charged offence, which so far as relevant to the present discussion, provides:
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.
…
(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;
The evidence of B
The complainant gave evidence relating to the alleged acts as principally occurring in the family home and in two bedrooms he occupied at various times. He also spoke of a particular period when his parents left the three brothers in the care of the accused whilst they holidayed in Fiji. There were subsidiary allegations of abuse at the accused’s parent’s home.
The evidence was to the effect that the parents always occupied what was described in the evidence as bedroom one. Both parents gave evidence on the voir dire. That of the father was of no assistance one way or the other from the point of view of both sides, in view of his distinct lack of memory of these distant times. That of their mother, if anything tended to contradict B as to when he occupied which bedroom(s) at certain times, and as to various significant dates, however those differences are irrelevant to the no case submission, although they certainly would be if the submission progressed to one of the lack of proof beyond reasonable doubt. Neither of the other brothers were called.
The grandmother of the boys on the maternal side moved into the home for ‘approximately 12 to 18 months’ or more after falling ill and before she was placed in a nursing home.[2] On all accounts in this period she occupied what was described as bedroom 2, adjacent to bedroom 1.[3] At that time the three brothers shared the one room, bedroom 3, B sleeping in a single bed whilst his siblings shared ‘cantilever’ bunk beds.[4] The focus of attention turns very much on the course of events and particularly when the grandmother moved in, for how long she stayed, and when she departed.
[2] T184.5-9.
[3] Plan, Exhibit P1.
[4] T129.10-.16.
The evidence of B commenced with the uncontroversial proposition that the accused commenced staying over the weekend at a time when he was in bedroom three with his brothers, which necessarily means his grandmother must have by then been in residence.[5] The accused commenced to enter the bedroom, climbed into his bed, cuddled up to him and began touching his genitals outside and later inside his pyjamas, when he was ‘probably 12, maybe 13’.[6]
[5] T163.23-.37.
[6] T131.36-133.14.
B described the abuse as becoming more frequent, occurring on a weekly basis every time the accused stayed overnight after he had moved into bedroom 2. This abuse continued to involve touching of the genitals, as well as ‘he’d get me to touch his genitals’, but which he added later in his evidence had also occurred in bedroom 3, to the point of ejaculation.[7] In bedroom 2 the sexual abuse escalated to rubbing of the genitals against the body of B to the point of ejaculation, the removal of pants to the respective waist lines, and two occasions when ‘he actually put my penis in his mouth’, when B claims he was in High School and when he was ‘probably about 12, 13 maybe’ or possible 14, having completed primary school aged 12 in 1977.[8] He deposed that he occupied this room for about three years before moving out between roughly the ages of 13 and 16, or possible 17 years.[9]
[7] T133.15-.24, T134.15-.33, T138.29-139.2.
[8] T123.31-.36, T124.20-.29, T135.1-.28, T143.31-.34, T169.21-.30.
[9] T124.13-.19, T169.31-.34, T180.33-181.11.
As to the period when the parents flew on vacation to Fiji for what was inconclusively between 10 days and two weeks around 1981 or 1982 or when B was aged 15, B maintained that abuse occurred nightly in bedroom 2, which constituted ‘(T)he same as every other time except there was twice that he actually put my penis in his mouth’.[10] As to the alleged events taking place at the accused’s parent’s home, B alleged sleeping over there with his brothers several times, and where ‘a couple of times he touched my genitals there and got me to touch him’ and that ‘once he ejaculated, off he’d go’.[11]
[10] T139.8-.15, T143.31-.34, T150.27-.35, T190.17-191.2, T193.26-194.2.
[11] T141.15-.19, T142.14-.19.
As an overall consideration, B frankly conceded a number of times that his recollection had varied and that ‘it's a long time ago and the time frames aren't 100 per cent accurate’,[12] that he was ‘not sure of what year my grandmother left’ or whether ‘she was there when [Mr Hamra] first started coming over or not’.[13] None of the incidents related by B contain any concrete reference in point of time, and none are referable to any external event or circumstance. It might also be noted that since it is an agreed fact that Mr Hamra graduated with a Diploma of Teaching in 1978, and since on all accounts he was a qualified teacher as of his introduction to B’s family, no acts of child exploitation could have taken place as early as 30 October 1977, as alleged in the particulars of the information.
[12] T168.13-170.10.
[13] T176.30-177.1, T181.5-.11.
Proof of more than one act of sexual exploitation
Provisions like or akin to those contained in s50 of the CLCA, were enacted as a consequence of the decision of the High Court in S v The Queen,[14] to the effect that at common law an accused person was entitled to know ‘the particular act, matter or thing alleged as the foundation of the charge …’. Hence it was held with respect to an indictment charging an accused with three counts of carnal knowledge of his daughter, that in the absence of any act or acts identified as the subject of an offence, the prosecution cannot lead evidence that is equally capable of referring to a number of occasions, any one of which might constitute an offence described in the charge, and invite the jury to convict on any one of them, applying Johnson v Miller.[15] Such legislative reforms were designed to accommodate what Kirby J described in KRM v The Queen[16] as:
… [T]he particular difficulty, even impossibility, in most cases of repeated sexual offences committed by an adult against a person when a child, for the victim of such offences to remember, and to be able to particularise, the dates or exact circumstances involved.
[14] (1989) 168 CLR 266, 277, 282, 284.
[15] (1937), 59 CLR 467.
[16] (2001) 206 CLR 221, [80].
Then in KBT v The Queen,[17] the same court considered that a jury could not convict an accused on a charge of maintaining an unlawful relationship of sexual nature with a child under sixteen years contrary to s 229B(I) of the Criminal Code (Q), unless it was agreed as to the commission of the same three or more acts constituting offences of a sexual nature. This decision was applied to the local provisions in R v M, BJ,[18] a decision affirmed by five Judges of the Court of Criminal Appeal in R v Little,[19] who considered that the offence considered in KBT raised ‘the same issue as to their constituent elements and the extent of the requirement of unanimity’ as did s 50 of the CLCA.
[17] (1997) 191 CLR 417 at 422 and 431.
[18] (2011) 110 SASR 1.
[19] [2015] SASCFC 118, [11].
Vanstone J, with the concurrence of White and Kelly JJ, endeavoured to briefly explain the degree of particularity necessary to satisfy these requirements in R v Livingstone:[20]
[26] In discussing the nature of the charge the judge correctly noted that the section creating the offence does not require each act of sexual exploitation to be particularised to the extent that would be necessary were that act charged as a specific offence under a different section.
…
[29] In any event, the point I wish to make is that, if the judge took the view that an ability to fully particularise an incident meant that such an incident could not form part of the conduct comprising the acts of sexual exploitation for the purpose of s 50, then I respectfully disagree with him. In my view there is no reason why a charge against s 50 cannot be made up of conduct which can be adequately particularised as well as conduct which cannot.
[20] (2011) 109 SASR 380.
Then in R v C, G,[21] an example of what suffices in the proof requirements under s 50 of the CLCA was discussed:
[82] The defendant submitted that in order to find an offence contrary to s 50 of the Criminal Law Consolidation Act, it was necessary for each complainant to identify, and the judge to find, either the date on which the separate sexual offences were committed or alternatively the occasion with sufficient particularity to separate each occasion from the other. We reject that contention. It is contrary to the express terms of s 50(4)(b) as earlier extracted.
[83] It was necessary for the evidence to establish, and the judge to find, acts comprising sexual offences committed over a period of not less than three days. The judge did this by identifying specific types of acts in each case; masturbating DF’s penis, masturbating AF’s penis, and placing his penis between BP’s thighs, and in each case on regular occasions over a period of about two years, as summarised above. It was not necessary that the evidence establish, or the judge find, specific, uniquely identified occasions on which those acts took place.
A similar conclusion was reached for similar reasons in R v T, WA.[22]
[21] (2013) 117 SASR 162.
[22] (2013) 118 SASR 382, [79]-[80], Kourakis CJ, Vanstone, Anderson JJ concurring.
Counsel for the accused laid particular stress on the subsequent decision of the Court of Criminal Appeal in R v Johnson,[23] in which an appeal was allowed, in part because of the failure to identify the means by which any alleged act (let alone the minimum two acts), could be identified and agreed upon by the jurors. In a joint judgment substantially concurring with Peek J, Sulan and Stanley JJ added this observation:
[2] … In order to establish the offence, it is necessary for the prosecution to prove that two or more identifiable acts occurred over not less than three days, and the jury must be agreed upon at least the same two or more acts. If the evidence rises no higher than a general statement such as that given in this case, even though the jury may be satisfied that there occurred numerous acts of sexual exploitation over a number of years, but it is impossible to identify two or more acts so that the conclusion can be reached that the jury, either unanimously or by majority, agreed on the same two or more acts, then the defendant is entitled to an acquittal.
The evidence given in that case by the complainant was general in relation to the count of persistent sexual exploitation, and was simply to the effect that the appellant regularly sexually abused her on an almost weekly basis, commencing when she was 15 or 16 years old. There was nothing to differentiate between one occasion of abuse and another.
[23] [2015] SASCFC 170.
For his part Peek J considered in Johnson that:[24]
… there must be a minimum amount of evidence adduced by the prosecution to enable jurors in the jury room to delineate two offences (at least) and to agree that those two offences were committed.
He proceeded to observe that ‘the degree of particularity that will enable a jury to delineate two offences, and to agree that they were committed, may be quite low’, but that on the basis of the evidence ‘(T)here is simply no point of identification of any act, let alone two acts, which can be delineated and agreed upon by the jurors’,[25] and in conclusion:[26]
It was impossible for the jurors who returned the verdict of guilty to have agreed that the same pair of offences had been proved beyond reasonable doubt, simply because it was impossible for them to delineate any such pair of offences.
[24] Ibid [111] emphasis in original.
[25] Ibid [114].
[26] Ibid [115].
The judgment of Peek J is instructive in another respect, in that his Honour illustrated his reasoning process with what he described as the requirement for ‘an association between the commission of an offence and an identifiable occasion or event preceding, accompanying, or following, … such as “one offence occurred a few weeks after my birthday”; “one offence occurred on the day I first wore a particular item of clothing that my mother bought me.”[27] These observations are consistent with those of McHugh J in KRM v The Queen (a case involving charges of maintaining a sexual relationship contrary to s 47A of the Crimes Act 1958 (Vic)), that the prosecution had to:[28]
… [P]rove the circumstances or occurrences surrounding each of the acts in sufficient detail to identify each “occasion”. Reference to circumstances or occurrences happening at a particular time is the usual way of identifying or describing an “occasion”.
[27] Ibid [112] and footnote 75.
[28] Above [117].
As observed by the Court of Appeal in R v SLJ of the Victorian provision:[29]
[16] With respect, the critical question was not whether the evidence disclosed “qualifying offences”, that is, whether acts of the kind alleged would, if proved to have occurred, constitute one or more relevant sexual offences. Rather, the question was whether the evidence in question was capable of supporting a conclusion, beyond reasonable doubt, that the applicant had on an occasion — identified with “some specificity” — done an act which constituted a relevant sexual offence.
[17] In our view — and as senior counsel for the Crown conceded — this evidence was not capable of supporting such a conclusion. As is apparent from the complainant’s repeated references to what the accused “would” do to her, she was describing a course of conduct. She was giving an account of what typically or routinely or generally occurred. There was nothing which distinguished one offending act from another.
[18] It is unnecessary to multiply examples. The concession by the Crown extended — rightly, in our view — to the other four passages in the charge said to manifest the same error. In a similar fashion, his Honour, in those parts of his charge, instructed the jury that they could find qualifying offences in undifferentiated descriptions of offences repeatedly committed over time. (The complainant’s evidence was expressed in language of the following kind: “the normal routine was…” and “he would always…”). Accordingly, there is every likelihood that the jury will have found a qualifying offence or offences in evidence which simply did not permit such a finding to be made, and on that basis found the applicant guilty.
[29] (2010) 24 VR 372.
Ms Luu for the prosecution, endeavoured to argue that as two or more different kinds of offences are particularised, there is a sufficient delineation between those charges to suffice, even if the particulars are otherwise lacking. One moment’s reflection indicates that this cannot be correct as it would amount to a triumph of form over substance. It means the prosecution could simply charge a number of different classes of offence, and thereby avoid the rigors of proof, even though they might otherwise be defective, which runs contrary to the case law cited above. It would in addition allow the prosecution to by-pass proof of the gist of the offence, ‘more than one act of sexual exploitation’.
Analysis
The evidence of B quoted or extracted above taken at its highest, demonstrates the highly generalised nature of the allegations and that he was quite non-specific as to times and dates, to the point that he was in no position to be in any certainty as to what age he was, what grade of (or which) school he was in, what bedroom he was in or whether his grandmother remained in the family home at relevant times. Furthermore, he was singularly unable to relate or reference any particular incident to any particular occasion, circumstance or event, beyond ‘what typically or routinely or generally occurred’, to the point that it is simply impossible to identify two or more of the requisite acts. In those circumstances on the basis of the most favourable case for the prosecution, the evidence was incapable of supporting a conclusion of proof beyond reasonable doubt: R v Bilick & Starke.[30]
[30] (1984) 36 SASR 321, 337.
Conclusion
It is then, for the above reasons that I determined there was no case to answer and directed a verdict of not guilty accordingly. I repeat, as I pointed out at the time of announcing this conclusion, that they did ‘not reflect adversely on the credibility of B, they reflect the fact that the evidence was simply too generalised and non-specific to enable a jury to properly return a verdict of guilty’.
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