A headnote I wrote for the Australian Law Journal Reports, published by Thomson Reuters.

Hamra v The Queen

91 ALJR 1007

[2017] HCA 38

Kiefel CJ, Bell, Keane, Nettle and Edelman JJ

Criminal law – Particular offences – Offences against the person – Sexual offences – Maintaining sexual relationship with child and persistent sexual abuse of child – South Australia – Two or more acts of sexual exploitation – Identification of separate acts of sexual exploitation – Where complainant’s evidence of generalised nature  – Criminal Law Consolidation Act 1935 (SA), s 50, 50(1), 50(2).

Criminal law – Appeal and new trial – Appeal against acquittal – Permission to appeal – Whether failure to consider question.

The Criminal Law Consolidation Act 1935 (SA), s 50, relevantly provides:

(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.

(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.

The appellant was charged with an offence of persistent sexual exploitation of a child contrary to s 50(1) and was tried by a judge alone in the District Court of South Australia.  Following the close of the prosecution case, the appellant submitted that there was no case to answer.  The trial judge accepted this submission and delivered a verdict of not guilty.  The trial judge held that the complainant had been unable to relate the alleged acts of sexual exploitation to any particular occasion, circumstance, or event beyond “what typically or routinely or generally occurred”, so that it was impossible to identify two or more of the requisite acts.

The prosecution appealed to the Full Court of the Supreme Court of South Australia, sitting as the Court of Criminal Appeal.  The Court of Criminal Appeal allowed the appeal, and remitted the matter for retrial.

By grant of special leave, the appellant appealed to the High Court of Australia on the grounds that the Court of Criminal Appeal had erred by concluding that there was a case to answer; and that it failed to address the appellant’s submission that permission to appeal should not be granted on the basis of, among other things, double jeopardy considerations.

Held (dismissing the appeal) (by the court): (1) Section 50(1), read with s 50(2), plainly requires the jury to identify two or more acts, over a period of three days or more, which could be charged as sexual offences. Section 50 does not always require evidence which allows acts of sexual exploitation to be delineated by reference to differentiating circumstances. As the text of s 50(1) prevents a jury from convicting without agreement upon two or more acts of sexual exploitation, this requires the jury to identify the two or more acts separately. However, the particular, unique circumstances of each separate occasion need not always be identified in order for a conclusion to be reached that two or more separate acts occurred, separated by three days or more. It would be sufficient, for instance, if the jury (or judge in a trial by judge alone) were to accept that acts which could be the subject of a charge of a sexual offence occurred every night, or every weekend, over a period of two months without any further differentiation of the particular occasions of the offending. [45], [46]

R v Johnson [2015] SASCFC 170, explained.

(2) Neither the common law nor s 50 precludes a judge or jury from deducing a conclusion by simple and obvious logic, provided that the members of the jury reach the conclusion as to the same two or more acts unanimously, or by a statutory majority where a majority verdict is permitted. [28]

(3) Although the majority of the Court of Criminal Appeal did not expressly give reasons for why permission to appeal should be granted, or advert to considerations such as double jeopardy, it was clear that the issue was considered and decided. [40]

R v Hamra (2016) 126 SASR 374, considered.

Decision of the Supreme Court of South Australia (Court of Criminal Appeal), reported at (2016) 126 SASR 374, affirmed.

Appeal from the Supreme Court of South Australia (Court of Criminal Appeal).

PAUL McCORMACK