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.

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 Moar

Details

AGLC: R v Moar [2013] SASCFC 119
Case: [2013] SASCFC 119
Decision Date: 1 November 2013

CaseChat Overview and Summary

The case of *R v Moar* concerned appeals against conviction. The specific nature of the dispute and the charges brought against the appellant are not detailed in the provided text, but the appeals were heard by Gray, Sulan, and Nicholson JJ.

The central legal issue before the court was whether the trial judge, Chivell DCJ, had erred in his assessment of certain exculpatory statements made by the defendant. This included whether the prosecution was entitled to refer to inconsistencies and implausibility in these statements, and whether the trial judge was justified in giving such material little or no weight in light of other evidence presented at trial. The appeals also touched upon the principles of appeal, specifically concerning points not taken below and the failure to object to alleged judicial bias during the trial proceedings.

The court, in dismissing the appeals, reasoned that it was a necessary part of the judicial process for a judge to assess the credibility and reliability of exculpatory statements, whether made in or out of court or from earlier proceedings. The prosecution was therefore permitted to highlight inconsistencies and implausibility in these statements. The court found that it was open to the trial judge to conclude that these statements held little or no weight, particularly as this conclusion was supported by other evidence presented during the trial. The judges agreed with the reasoning of Gray J.

The appeals were dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J

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.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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