R v Moar - [2013] SASCFC 119

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MOAR
[2013] SASCFC 119
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Nicholson)
1 November 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FOR BIAS IN JUDICIAL PROCEEDINGS
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - POINTS AND OBJECTIONS NOT TAKEN BELOW - WHEN NOT ALLOWED TO BE RAISED ON APPEAL - COURSE OF CONDUCT AT TRIAL - PARTICULAR CASES - FAILURE TO OBJECT TO JUDICIAL BIAS
CRIMINAL LAW - EVIDENCE - MISCELLANEOUS MATTERS - OTHER CASES
These are appeals against decisions of a District Court Judge following two separate judge alone trials on the objective elements of alleged sexual offences. The defendant was charged on Information with five counts of indecent assault against five separate male complainants under the age of 17 years. The defendant was charged on separate Information with the offence of sexual exploitation of a child and alternative offences against one male complainant. In relation to both Informations, the defendant was found to be mentally unfit to stand trial. Trials of the objective elements of the offences alleged by each Information proceeded before the same Judge. The Judge found that the objective elements of each offence were proved beyond reasonable doubt.
(1)   In relation to both trials, whether a reasonable apprehension of bias arose from the Judge, as a result of error, having received medical reports containing material disparaging of the defendant. Where no question of bias or appearance of bias was raised by defence counsel at trial. Where no reference to the medical reports was made throughout the trial or in the course of the Judge’s reasons.
(2)   In relation to the Information alleging persistent sexual exploitation of a child, whether the Judge erred in the use that he made of evidence given by the defendant at an earlier trial on the same Information. Where defence counsel did not object to the tender of the evidence given by the defendant at the earlier trial, but sought to rely upon supposedly exculpatory statements contained within that evidence. Where the Judge had assessed the credibility of the evidence given by the defendant at the earlier trial and had concluded that he was satisfied beyond reasonable doubt that that evidence was untrue.
Held per Gray J, Sulan and Nicholson JJ agreeing (dismissing the appeals):
(1)   A fair-minded person would not reasonably apprehend or suspect that the Judge may have been the subject of bias. The fair minded person would understand that the medical reports had been put to one side that the Judge had not had regard to them in reaching his decision.
(2)   It is self-evident that the Judge would have to assess what weight could be attributed to the evidence given by the defendant at the earlier trial and, in doing so, would necessarily have to consider inconsistencies and other matters that would allow the weight of the material to be assessed.
Criminal Law Consolidation Act 1935 (SA) s 50(1), referred to.
Nudd v The Queen (2006) 162 A Crim R 301; TKWJ v The Queen (2002) 212 CLR 124; Ali v The Queen (2005) 79 ALJR 662, considered.

R v MOAR
[2013] SASCFC 119
Court of Criminal Appeal: Gray, Sulan and Nicholson JJ
GRAY J.

These are appeals against decisions of Chivell DCJ following two separate judge alone trials on the objective elements of alleged sexual offences.
Introduction
The defendant and appellant, James Harvey Moar, was charged on Information with five counts of indecent assault against five separate male complainants. The offending was alleged to have occurred during the period from 1 January 1967 to 31 December 1970. It was alleged that each complainant was under the age of 17 years at the time of the offending. On 16 April 2012, Chivell DCJ concluded that the defendant was mentally unfit to stand trial. The following day, on 17 April 2012, Chivell DCJ refused an application for a stay of the proceedings. On 29 January 2013, Chivell DCJ proceeded with the trial of the objective elements of the offences. His Honour found that the objective elements of each offence had been established beyond reasonable doubt.[1] Judgment and reasons were delivered on 17 May 2013.
[1] R v Moar [2013] SADC 62.
The defendant’s appeals raised only one complaint; that an apprehension of bias arose and that, as a consequence, the orders of Chivell DCJ should be set aside and the matter remitted for a retrial on the objective elements.
On a separate Information, the defendant was charged with multiple counts of sexual offending against the one complainant said to have occurred in 1974. The first count alleged the offence of persistent sexual exploitation of a child contrary to section 50(1) of the Criminal Law Consolidation Act 1935 (SA). Alternative charges of gross indecency and buggery were also before the Court. The defendant asserted that he was unfit to stand trial and the prosecution ultimately accepted this to be the case. As a result, the trial proceeded on the objective elements of the alleged offending. The trial took place on 1 February 2013, immediately following the reserving of judgment in the earlier referred to proceedings involving the five counts of indecent assault. Chivell DCJ delivered judgment and published reasons on 17 May 2013. His Honour concluded that he was satisfied beyond reasonable doubt that the objective elements of the crime of persistent sexual exploitation of a child had been proved beyond reasonable doubt and, in these circumstances, did not go on to consider the other counts.[2]
[2] R v Moar (No 2) [2013] SADC 63.
On the appeal in respect of this decision, the defendant complained that Chivell DCJ had made inappropriate use of sworn evidence given by the defendant in an earlier trial on the same charges. A conviction that was recorded by Soulio DCJ[3] had been set aside by the Court of Criminal Appeal[4] and evidence given by the defendant in the earlier trial was tendered by consent at the trial before Chivell DCJ. A further complaint was made that the proceeding before Chivell DCJ occurred in circumstances that gave rise to a reasonable apprehension of bias. These were the same circumstances said to give rise to the apprehended bias in relation to the trial on the information alleging indecent assault.
[3] R v Moar [2010] SADC 122.
[4] R v Moar [2011] SASCFC 16.
Both appeals were listed together and were argued by the same counsel. Both appeals are the subject of these reasons.
Apprehension of Bias
It is convenient to first address the complaint raised on both appeals; that the trials on the objective facts occurred in circumstances that gave rise to a reasonable apprehension of bias.
Following Chivell DCJ’s determination that the defendant was unfit to stand trial on the charge of indecent assault, discussion took place between the parties as to whether there could be resolution of the trial of the objective elements of all charges. At this time, different counsel represented the defendant in relation to the two Informations. Three expert medical reports and a report of the Parole Board had been obtained by the parties to assist their attempts to resolve any dispute about the objective elements. The reports contained some matters disparaging of the defendant. Apparently by error, the reports were made available to Chivell DCJ. When this became known, Chivell DCJ was informed that the reports had been disclosed by error. Counsel for the defendant raised no objection to Chivell DCJ proceeding with both trials. No question of bias or appearance of bias was raised. Ultimately, in both trials, the reports were not tendered. Neither the reports nor their contents were referred to in the course of the trials. Unsurprisingly, there is no reference to the reports in the reasons of Chivell DCJ in respect of both proceedings.
Counsel that appeared for the defendant on the appeals was different to the counsel that appeared at each of the trials. It was on appeal that the question of apprehension of bias was raised for the first time. It was submitted that Chivell DCJ should have stated in his reasons that he had had no regard to any of the earlier referred to medical reports. No submission was made at the trial to suggest that Chivell DCJ should make this, or any other, reference to the reports.
In my view, this complaint is without substance. All concerned at the pre-trial stage were aware that an error had been made but were confident that Chivell DCJ could put that material to one side and not be adversely influenced by it. As noted above, no counsel objected to his Honour proceeding to hear and determine the objective elements in respect of all alleged offending the subject of both trials.
I do not consider that a fair-minded person might reasonably apprehend or suspect that Chivell DCJ may have been the subject of bias. The fair-minded person would be aware of what had occurred in the pre-trial hearings and would understand that the defendant was legally represented by competent counsel and had no concerns about Chivell DCJ presiding over both trials. The fair-minded person would also understand that the reports were not tendered as evidence in either trial and were not the subject of any comment or submission, either by counsel or by Chivell DCJ, throughout the trial. The fair-minded person would also understand that Chivell DCJ made no reference to any of the reports in the course of his reasons. The fair-minded person would, in these circumstances, understand that the reports and their contents had been put to one side and that his Honour had not had regard to them in reaching his decisions.
Use of Out of Court Statement
At the trial of the objective elements of the alleged offence of persistent sexual exploitation of a child, the prosecutor tendered the sworn evidence given by the defendant at his earlier trial before Soulio DCJ. The prosecutor relied on admissions said to have been made in that evidence. Defence counsel did not object to the tender of the defendant’s evidence and advised Chivell DCJ that there were statements in the evidence of an exculpatory nature on which the defendant would rely. Counsel submitted:
… but there is also evidence of an exculpatory nature which your Honour would necessarily have to weigh into the balance on the question of whether the objective elements have been established.
In the reasons of Chivell DCJ in respect of this charge, reference was made to the defendant’s police interview. Substantial reference was also made to the defendant’s evidence given before Soulio DCJ, including both his evidence-in-chief and his cross-examination. Chivell DCJ noted how aspects of the defendant’s evidence were inconsistent with other material before the Court. His Honour noted the submissions of counsel, including the submission of the prosecutor that the defendant’s evidence was inherently implausible. Ultimately, his Honour concluded:[5]
I have scrutinised C’s evidence as carefully as I can. I was impressed with his candour, his straightforwardness, his willingness to concede where his memory was imperfect. He was cross-examined expertly by Miss Fuller, but I found no reason to doubt his truthfulness. As to his reliability, I reject the suggestion that he has subconsciously conflated the abuse by Marshall and the others with the abuse by Mr Moar. The pattern of abuse, in the sense of the particular acts performed, may have been similar but, as Miss Fuller acknowledged in her submissions, the context was completely different.
I reject the evidence tendered which contradicts C’s evidence. I have already explained the reasons why I do not rely on the agreed facts about what R would have said had she given evidence. I found the evidence given by Mr Moar at the last trial completely unconvincing, somewhat self-contradictory and totally implausible.
I have not had the opportunity to assess Mr Moar’s evidence by hearing it in court, but that does not oblige me to find that there must be a reasonable possibility that it is true. Applying the agreed approach to this evidence, it provides evidence of Mr Moar’s answer to the charge, but it has not been sworn in this court, and has not been tested by cross-examination in this court. On the other hand, it was sworn and tested in the previous hearing. I am satisfied beyond reasonable doubt that it is untrue.
I am satisfied beyond reasonable doubt that the particulars of the crime of persistent sexual exploitation of a child (with the exception of particular (c)) have been proved beyond reasonable doubt, subject to the limitations described by Bleby J in Warsap (supra). It follows that I am satisfied beyond reasonable doubt that the objective elements of that crime have been proved beyond reasonable doubt.
[5] R v Moar (No 2) [2013] SADC 63, [80]-[83].
On appeal, it was submitted that Chivell DCJ had proceeded to assess the credibility of the defendant’s evidence and, in particular, had done so having regard to what were said to be “exculpatory statements” without informing counsel that he intended to do so. It was said that had counsel at trial been aware that Chivell DCJ might take an adverse view of Mr Moar’s credibility, other evidence would have been led and, in particular, evidence would have been led as to the defendant’s medical state at the time of the earlier trial before Soulio DCJ.
In my opinion, this ground of complaint is misconceived. Defence counsel at trial had sought to rely on suggested exculpatory statements in the defendant’s evidence given before Soulio DCJ. Counsel expressly acknowledged that Chivell DCJ would have to weigh this material. It is self-evident that his Honour would have to assess what weight could be attributed to the earlier evidence and, in doing so, would necessarily have to consider inconsistencies and other matters that would allow the weight of the material to be assessed. I do not consider that Chivell DCJ in any way misled defence counsel or that any misunderstanding or error on the part of defence counsel could have led to the risk of a miscarriage of justice. Viewed objectively, there is no basis to conclude that any such risk arose.
In Nudd,[6] Gleeson CJ observed that where the conduct of defence counsel is said to give rise to a miscarriage of justice, it is the role of the appeal court to conduct an objective inquiry, focusing on what was done or omitted rather than why such conduct occurred. The Chief Justice also noted that although this was the general rule, circumstances may arise where it will be necessary to ask that latter question.[7]
[6] Nudd v The Queen (2006) 162 A Crim R 301, [8]; see also TKWJ v The Queen (2002) 212 CLR 124; Ali v The Queen (2005) 79 ALJR 662.
[7] Nudd v The Queen (2006) 162 A Crim R 301, [17].
Gummow and Hayne JJ, in their judgment, outlined that the gravamen of the inquiry is whether a miscarriage of justice occurred. Their Honours noted that alleging that trial counsel was incompetent does not reveal what is said to be the miscarriage of justice. Citing the judgments in TKWJ,[8] it was said that the inquiry requires a consideration of:[9]
… what did or did not occur at the trial, of whether there was a material irregularity in the trial, and whether there was a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial.
[Footnotes omitted.]
[8] TKWJ v The Queen (2002) 212 CLR 124.
[9] Nudd v The Queen (2006) 162 A Crim R 301, [24].
There are reasons, both legal and pragmatic, which support giving latitude to counsel appearing in trials. Parties are ordinarily held to the way in which their counsel has presented the case as the relationship between lawyer and client finds its foundations in the law relating to agency and apparent authority. Trials could not operate effectively without according deference to the mass of decisions necessarily made by a lawyer in the course of conducting a trial. The realities of the trial process influence the approach taken by appeal courts.
In Nudd, Kirby J made the following pertinent comments about the dangers of focussing the inquiry on the incompetence of the legal representation at trial rather than the ultimate question of whether a miscarriage of justice occurred:[10]
In criminal appeals, courts are alive to the dangers of retrospective wisdom and appellate hindsight applied to instantaneous professional judgments that have to be made, often in fraught circumstances. Moreover, they understand the natural tendency of some who “have been properly and deservedly convicted to attribute the result to the perceived incompetence of their counsel”.
Considerations such as these have led appellate courts everywhere to insist that those who complain on the score of suggested incompetence in their legal representation at trial must establish the defect of the resulting verdict or otherwise show a "miscarriage of justice". It is not the function of the appellate court to attempt "to rate counsel's conduct of the case according to some scale of ineptitude".
[Footnotes omitted].
[10] Nudd v The Queen (2006) 162 A Crim R 301, [80]-[81].
My review of the transcript does not reveal any error on the part of counsel. It is self-evident that if a judge is asked to give weight to exculpatory statements made by a defendant in either an out of court statement or evidence from an earlier trial, some assessment must be made as to the credibility and reliability of that material. It was appropriate for the prosecution to refer to inconsistencies in the suggested exculpatory statements and to refer to their implausibility. It was open to Chivell DCJ to give that material little or no weight. Other evidence in the trial allowed that conclusion.
Conclusion
For these reasons, I would dismiss both appeals.
SULAN J: I would dismiss the appeals. I agree with the reasons of Gray J.
NICHOLSON J: I would dismiss the appeals. I agree with the reasons of Gray J.