R v Moar

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MOAR
[2011] SASCFC 16
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Anderson)
22 March 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
CRIMINAL LAW - EVIDENCE
Appeal against conviction - defendant convicted following trial by Judge alone in District Court for the offence of persistent sexual exploitation of a child - where before commencement of trial, application was made that defendant unfit to stand trial on basis of defendant's physical and mental ill health - application dismissed - where a number of medical reports referred to during the application, and when ultimately considering verdict following trial, Judge had regard to medical evidence - where no reports or other medical evidence tendered on hearing of application or at the trial.
Held: appeal allowed - retrial ordered - Judge failed to identify which medical reports he relied upon relating to the defendant's illnesses and medication and their effect on the defendant's memory - Judge failed to identify how or in what way medical evidence was used when assessing the defendant and concluding that the defendant's manner and explanations were unconvincing - medical reports on file contained matters that required consideration regarding the defendant's memory - risk that there was miscarriage of justice.
Criminal Law Consolidation Act 1935 (SA) s 50, referred to.
R v Keyte (2000) 78 SASR 68; Pettitt v Dunkley (1971) 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, considered.

R v MOAR
[2011] SASCFC 16
Court of Criminal Appeal Gray, Sulan and Anderson JJ
THE COURT:

This is an appeal against conviction following a Judge alone trial in the District Court.
Introduction
The defendant and appellant, James Harvey Moar, was charged with the offence of persistent sexual exploitation of a child contrary to section 50(1) of the Criminal Law Consolidation Act 1935 (SA). Section 50 relevantly provides:[1]
[1]    Criminal Law Consolidation Act 1935 (SA), s 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;
(c)the person may, on the same information, be charged with other offences, provided that any sexual offence allegedly committed by the person—
(i)in relation to the child who is allegedly the subject of the offence against this section; and
(ii)during the period during which the person is alleged to have committed the offence against this section,
must be charged in the alternative.
…
(6)This section applies in relation to acts of sexual exploitation of a child whether they were committed before or after the commencement of this section.
(7)     In this section—
prescribed age, in relation to a child, means—
(a)in the case of a person who is in a position of authority in relation to the child—18 years;
…
sexual offence means—
(a)an offence against Division 11 (other than sections 59 and 61) or sections 63B, 66, 69 or 72; or
…
(8)For the purposes of this section, a person is in a position of authority in relation to a child if the person is—
(a)a teacher (within the meaning of the Education Act 1972) engaged in the education of the child; or
…
The particulars alleged were that:
First Count
…
James Harvey Moar between the 1st day of August 1974 and the 1st day of December 1974 at Para Vista, over a period of not less than three days, committed more than one act of sexual exploitation of [Q], a person under the age of 17 years.
It is alleged that the conduct comprising the ongoing acts of sexual exploitation included:
(a)Committing an act of gross indecency with [Q] by causing [Q] to masturbate in James Harvey Moar’s presence.
…
(c) Indecently assaulting [Q], by performing an act of fellatio on [Q].
(d) Committing acts of buggery with [Q].
Two counts of gross indecency and two counts of buggery were charged in the alternative. The Director of Public Prosecutions entered a nolle prosequi in relation to one of the counts of gross indecency.
The prosecution case was that between 1 August and 1 December 1974, the defendant had sexually assaulted the complainant on numerous occasions. During the relevant period, the defendant was a school counsellor employed at a suburban high school. The complainant was a student at the same school. The sexual assaults were said to have occurred in the context of purported counselling sessions. The defendant denied sexually assaulting the complainant on any occasion. The Judge accepted the complainant’s evidence and found the charge of sexual exploitation to have been proved beyond reasonable doubt.
In accordance with the terms of the statute, the second, fourth and fifth counts were treated as alternate counts and following the recording of the conviction of the offence of persistent sexual exploitation, no verdicts were returned on those counts.
The Appeal
The appellant initially advanced two grounds of appeal. First, it was said that the verdict was unsafe and unsatisfactory and, secondly, it was contended that the Judge failed to discharge his obligation to properly assess evidence admitted pursuant section 34L of Evidence Act 1929 (SA) of the complainant’s prior sexual activity.
During the course of the appeal, permission was sought to amend to add further grounds in the following terms:
3.The trial miscarried as a result of the failure by the learned Trial Judge to identify: -
3.1Which, if any, of the medical reports relating to the appellant’s illnesses and medication and their effect on his memory the learned Trial Judge relied upon in the trial;
3.2How or in what way, if at all, that medical evidence was used in an assessment of the evidence of the appellant and in particular in reaching the conclusion that the appellant’s manner and explanations were unconvincing.
4.The trial miscarried as a result of the failure of defence counsel to make an application for the learned trial Judge to disqualify himself on the basis that he had sentenced another accused, Philip Cave, in respect of offending involving the complainant Q. Philip Cave was one of the persons whom the complainant in evidence said had sexually abused him prior to the alleged abuse by the appellant.
5.The trial miscarried as a result of the concession made by defence counsel that the complainant had been sexually interfered with by the persons he identified in evidence, namely Philip Cave, Rick Marshall, and two others.
Counsel for the Director of Public Prosecutions did not oppose the proposed amendment and the Court granted permission.
The first amended ground of appeal, if made out, would have a material effect on the original and further grounds of appeal. It is convenient to immediately address the first amended ground; that is, ground 3.
Before the commencement of the trial, an application was made that the defendant was unfit to stand trial. This was accompanied by an application for a permanent stay of the proceedings. Ultimately, the Judge dismissed the application concerning the defendant’s fitness to stand trial. The application for a permanent stay ultimately was not pressed.
The basis of the applications concerned the defendant’s physical and mental ill health and, in particular, an alleged deterioration in his health that had occurred over the previous three decades. In the course of the application, reference was made to the reports of a neuropsychologist, Mark Reid, and a geriatrician, Ludomyr Mykyta. Further, on the court file a number of reports are to be found. There is no record of the tender of any medical report, either in the preliminary application or in the trial. Counsel appearing on the appeal were not able to identify what reports were before the Judge at any stage of the proceedings.
Following the dismissal of the application concerning fitness to plead and the abandonment of the application for a permanent stay, the trial commenced. Special arrangements were made to assist the defendant in the trial through the provision of nursing assistance and substantial adjournments.
At trial, there is no record of the tender of any medical evidence concerning the defendant. The defendant when giving evidence spoke briefly of his physical and mental state.
It is apparent that the Judge when considering his verdict had regard to medical evidence. However, as noted above neither the transcript of the trial nor the list of exhibits tendered in the trial make any reference to that evidence. Counsel on the appeal were not able to identify the extent of the material that had been the subject of review by the Judge.
It is apparent from the published reasons for verdict that the Judge did have regard to medical evidence, as the following appears in the reasons:
The accused, as I have said, was 72 years old at the time of trial. He was born on 31 August 1937. At the time the offences are alleged to have occurred he was 37 years old. He married at some stage, although there is no evidence as to whether he was married in 1974. He currently suffers from a number of health problems to which I have referred. It was an agreed fact that the accused’s medication can contribute to problems with memory.
…
I found the accused to be an unimpressive witness. I bear in mind the difficulty faced in endeavouring to assess a witness’s veracity by his demeanour in the somewhat unnatural environment of the court room. I also bear in mind that the accused’s evidence is to be considered in light of his age and his significant illnesses, and the potential effect of age, the passage of time, and the consumption of various medications, upon his memory. However his explanations were unconvincing, as was his manner. He did endeavour to distance himself from the complainant by seeking to minimise his involvement with the complainant. In my view he lacked credibility. I reject his denials of the specific matters alleged against him which are the basis for the charges.
[emphasis added]
In the first of the above paragraphs, reference is made to health problems of the defendant to which the Judge had referred. This would appear to be a reference to earlier paragraphs of his reasons that now follow:
Counsel for the accused made application to vacate the trial date on the basis of the medical condition of the accused, and said that if that application was unsuccessful he would apply for a stay based on the same material.
I received reports from Mr Reid, an experienced neuropsychologist, Ms Mykyta, a consultant geriatrician, and a letter from the site manager (a registered nurse) at the nursing home in which the accused resides, in support of the application.
At trial the accused was 72 years of age. He suffers from diabetes. He also suffers from Parkinson’s disease which makes it difficult, if not impossible, for him to assess his blood sugar levels and administer treatment reliably and accurately. He suffers depression and sleep apnoea with resulting fatigue. He is unable to walk for any distance, suffers back pain, and suffers urinary frequency, urgency and urge incontinence.
Mr Reid saw the accused in September 2009, and said the accused was not mentally unfit to stand trial within the terms of s 269H(a)(b) and (c) of the Criminal Law Consolidation Act 1935 (‘CLCA’), …
Mr Reid did however express concern about the ability of the accused to sustain concentration at the appropriate level and suggested that allowances be made for the accused in relation to the issues of fatigue and stress to accommodate limitations with regard to concentration.
Upon reassessment in June 2010 Mr Reid said:
If I accept the difficulties with fatigue and concentration as subjectively described by Mr Moar, then I believe it is probable that he would not meet the requirements for fitness to stand trial, but as indicated above I believe a more specialized medical comment with regard to his various medical diagnoses needs to supplement this opinion.
Thereafter Dr Mykyta assessed the accused. She said that the accused would need a blood sugar level reading and possibly an insulin injection following the travel to and from the nursing home to court. She said that allowances would have to be made for the accused due to his urinary incontinence and that he would need attention to diabetes management at intervals of less than two hours. She said the diabetes management would require that he be accompanied by a registered nurse. She formed the impression there was no significant cognitive impairment and that the accused was articulate and well informed and capable of providing instructions. She expressed doubts about his ability to maintain his alertness and concentration during the course of a trial and whilst she noted that he could stay alert and focused during a 90 minute consultation she questioned whether he could do so consistently and repeatedly in court. She did make the comment that “at times, his appearance is not congruous with the severity of the symptoms that he describes ...”
I refused the application to vacate the trial date and, given that the foreshadowed stay was based on the same material, counsel for the accused indicated that he would not pursue the application for a stay. There was no application asserting that the accused was not fit to stand trial.
Arrangements were made for a nurse to be present at court to accompany the accused and the trial proceeded, sitting each morning, every second day without causing apparent difficulty.
[emphasis added]
The above paragraphs appear within the trial Judge’s reasons for verdict.
The physical and mental deterioration in the defendant’s health were matters of relevance in the trial in at least the following respects. The Judge was required to address any prejudice arising from delay between the alleged offending and the complaint; a period of more than 30 years. One of the particular and unusual disadvantages said to arise from delay was, that during that time, the defendant’s health had deteriorated and in particular, his cognitive functions had deteriorated so as to have affected his physical wellbeing. Of particular relevance was impairment of his memory. A further disadvantage related to the impact of his illnesses on his presentation in court, specifically, his demeanour.
It was complained on appeal that the Judge had acted on unidentified medical reports that had not been received into evidence. It was said that the Judge failed to make findings as to the nature and extent of the defendant’s disabilities. It was contended that the Judge failed to have proper regard to those disabilities when assessing the defendant’s credibility. Finally it was said that the Judge had not considered the forensic disadvantage to the defendant of the combination of his diminished faculties and the delay.
In our opinion, there is substance to each of these complaints. It is further our opinion that the course followed by the Judge has led to a risk that a miscarriage of justice may have occurred such that the conviction should be set aside and a retrial ordered. Our reasons follow.
It is axiomatic that a criminal trial should proceed in a structured and orderly manner. Evidence before the trier of fact should be clearly identified so that there is no ambiguity as to the evidence the subject of the trial. The proper procedure to be followed in a trial by jury ensures that this takes place. The prosecution and the defence tender the evidence on which they rely. The tender of oral evidence is through a witness giving testimony. The tender of documentary evidence is by the provision of a document, an application to tender, and a tender. If a documentary tender is accepted, the document is marked as an exhibit and has evidentiary status. Appropriate rulings and directions are made when the evidence is admitted for a limited purpose. Adherence to the same procedures should take place in a trial by judge alone.
In a trial before a jury, preliminary matters and voir dire hearings are conducted in the absence of a jury. There may be occasions in a trial by judge alone where less formality may be involved, but in particular the tender of evidence should follow the same process whether the trial is before a judge and jury or judge alone.
A review of the court file in the present proceeding discloses the existence of a number of medical reports predating the commencement of the trial. Those reports are as follows: Mr Reid dated 30 June 2010 and 23 November 2010; Dr Mykyta dated 10 August 2010; Michael Brown, a general practitioner, dated 2 November 2010 and 7 January 2011; and, Peter Frost, Clinical Director of the South Australian Prison Health Service, dated 18 December 2010.
It is not possible from a review of the transcript of either the preliminary application or the trial to ascertain with certainty the reports to which the trial Judge had regard. It is possible to identify particular reports to which regard was had at the preliminary hearing. It may be inferred that the Judge had regard to at least these reports in the course of the trial. However, as earlier observed there was no tender or acceptance of tender of any report as evidence in the trial. The exhibit list and the transcript contains no reference to any medical report.
Neither counsel could identify the extent of the material or the material itself to which the Judge had regard. Counsel for the Director took no objection to this Court reviewing the medical reports on the District Court file to assess whether the procedures followed at trial gave rise to any risk of a miscarriage of justice. The report of Dr Mykyta of 10 August 2010, records that Dr Mykyta had had regard to a number of reports; a report of Dr Brown of 12 September 2008, a report of a psychologist, Allen Fugler, of 22 December 2008, a report of Kellie McDonald of the Martindale Nursing Home dated 25 June 2010, and reports of Mr Reid of 25 September 2009 and 30 June 2010. Dr Mykyta, in the course of her report, outlined the defendant’s physical and mental illnesses noting that the defendant suffered from polio, sleep apnoea, haemochromatosis, Parkinson’s disease, type II diabetes, depression, urinary incontinence and back pain. Dr Mykyta referred to Mr Reid’s testing and earlier report and, in particular, his conclusion that there was no evidence of the defendant’s attempts of fabrication. Dr Mykyta accepted Mr Reid’s assessment of the defendant’s cognitive state. Dr Mykyta concluded that in her opinion, the defendant was fit to stand trial:
Given the recent cognitive assessment by Mark Reid (28.06.10) I did not do a formal cognitive screening test. My impression was that there was no significant cognitive impairment and that he was articulate and well informed.
…
I believe that he is capable of providing initial instructions to his solicitors and barrister.
…
I did not question him on … [his ability to comprehend the court process]. He has had experience of an earlier court proceeding, and given my own inexperience in this arena, I would accept Mark Reid’s judgement on this point.
…
I have serious doubts about his ability to maintain his alertness and concentration in the course of the trial. Judging from my own interview and the comments of Allen Fugler and Mark Reid, he can make the effort to stay alert and focussed during a 90 minute consultation. Whether he could do this consistently and repeatedly is questionable.
…
I, Allen Fugler, and Mark Reid all managed to complete 90 minute interviews without causing significant stress. This was in a quiet, private setting, with people skilled in making their clients comfortable and unstressed. There is a considerable difference about being in open court and under a cloud of doubt and fear about possible outcomes. I feel that this would raise Mr Moar’s anxiety level significantly and that this could be reflected in an aggravation of some of the symptoms of his ailments. Anxiety takes a heavy toll on attention and concentration, hence cognitive performance.
[emphasis added]

Mr Reid’s report of 25 September 2009 does not appear on the Court file. However, his report of 30 June 2010, which is on the file, refers briefly to his earlier report. It is apparent that Mr Reid, in September 2009, formed the opinion that the defendant was fit to stand trial. However, this opinion was subject to a qualification. In his report of June 2010, Mr Reid observed:
As you are aware I have seen Mr. Moar previously and provided you with a comprehensive report (dated 25^th September 2009), addressing the issues of Mr. Moar’s fitness to stand trial. At the time of that assessment I was of the opinion that if he was able to concentrate, as he was able to during the one and a half hours he spent with myself on that occasion, his cognitive capacities were at a level where I considered he would be able to meet the various requirements under Section 269H(a), (b) and (c). I did have some concern about his ability to sustain his concentration at an appropriate level, in the context of multiple medical conditions, particularly those leading to excessive fatigue. I suggested that it may be possible for the court to make a number of allowances for Mr. Moar with regard to those issues of fatigue and stress and therefore accommodate any limitations with regard to concentration.
I understand from your recent letter that there has been some concern with regard to Mr. Moar’s physical and mental health and this may have deteriorated since I last saw him. I acknowledge receipt of the copies of letters provided by Ms. Kellie McDonald, Site Manager at Martindale Nursing Home where Mr. Moar resides (letters dated the 24^th June 2010 and the 25^th June 2010). This clearly outlines what appears to be a deterioration in his medical conditions since I last saw him, including his diabetes, his chronic fatigue syndrome and his Parkinson’s disease, as well as stress and depression compounding these medical matters.
[emphasis added]
As this time, Mr Reid concluded:
Overall therefore, I believe that technically, from a cognitive or intellectual perspective, Mr. Moar remains fit to stand trial, if and only if his fatigue levels and therefore ability to sustain his concentration are at an appropriate level.
I believe it would be appropriate to obtain an opinion from a relevant medical specialist, such as a consulting general physician, to provide an opinion with regard to whether or not Mr. Moar’s multiple medical conditions would result in excessive fatigue levels.
It is well recognized that concentration and vigilance levels deteriorate markedly under adverse conditions including fatigue, pain and depression. I do not believe that his level of depression, by itself, would render him unfit to stand trial, but in combination with the medical issues this may well be the case.
If I accept the difficulties with fatigue and concentration as subjectively described by Mr Moar, then I believe it is probable that he would not meet the requirements for fitness to stand trial, but as indicated above I believe a more specialized medical comment with regard to his various medical diagnoses needs to supplement this opinion.
[emphasis added]
Dr Brown’s report of 12 September 2008 and Mr Fugler’s report of 22 December 2008 do not appear to be on file.
As noted above, the trial Judge in the course of his reasons for verdict, noted that the defendant suffered from a number of health problems and that it was an agreed fact that his medication could contribute to problems with memory. However, the Judge made no findings as to the health problems or their effects on the defendant. The Judge’s discussion about the forensic disadvantages suffered by the defendant as a consequence of delay, made no reference to the defendant’s deteriorating health. When reaching adverse conclusions about demeanour, the Judge simply refers to a consideration of the defendant’s age and significant illnesses as well as the potential effect of age, the passage of time and the consumption of various medications upon his memory. No findings of the problems facing the defendant were made. The Judge did not undertake any apparent analysis and did not disclose any consideration of the defendant’s problems.
A perusal of the Judge’s reasons on the preliminary applications, demonstrate that the Judge accepted that the defendant was aged 72 years, suffered from diabetes, Parkinson’s disease, sleep apnoea and depression. He noted that Mr Reid had reported in September 2009 that the defendant was not fit to stand trial. He noted that Mr Reid reached the same conclusion on his assessment in June 2010. He further recorded, as discussed above, some of the views of Dr Mykyta.
However, the above observations are in the context of the application concerning the defendant’s fitness to stand trial. The Judge did not make findings as to the deteriorating health of the defendant, or the negative impact of the stresses of the trial on the defendant’s memory. These are important aspects of Mr Reid and Dr Mykyta’s opinions.
The Judge was required to identify the material upon which he relied in rejecting the defendant’s evidence. Further, he was obliged to give adequate reasons for his decision.[2] Having identified the defendant’s medical conditions, the Judge should have given his reasons for rejecting the contention that those conditions affected the reliability of the defendant when giving evidence and recalling the events which were alleged to have occurred some 30 years before.
[2] R v Keyte (2000) 78 SASR 68, [34]-[43], [45], [48]-[49], [52]; Pettitt v Dunkley (1971) 1 NSWLR 376, 388; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 259, 280.
It is not possible to discern from the reasons what findings the Judge made, if any, as to the consequences of the defendant’s deteriorating health. Absent findings in this respect, it is not possible to assess or understand the Judge’s reasons for his conclusion that the defendant was an unimpressive witness of poor demeanour. It is not possible to ascertain to what extent, if any, the Judge had regard to the defendant’s deteriorating health and, in particular, mental health, when assessing the defendant’s credibility, his demeanour or the question of forensic disadvantage through delay.
It is not possible to ascertain to what medical evidence relevant to these issues the Judge had regard. As earlier observed, neither the transcript nor the exhibit list reveal the full extent of the evidence before the Judge.
It is in the context of these observations, that this Court is to determine whether the manner in which the trial was conducted, including the adequacy of the reasons, has given rise to a risk of a miscarriage of justice sufficient to lead to the setting aside of the conviction and to the order for a retrial.
As indicated earlier, the Director had no objection to the Court reviewing the medical reports on file. Those reports have been referred to above and in the extracted and emphasised material it is evident that there were real matters to be weighed and considered on the topic of the defendant’s memory. This material satisfies this Court that there is a risk that there has been a miscarriage of justice.
The above matters undermine the Judge’s findings leading to his satisfaction of guilt. In these circumstances, and as the matter is to be remitted for retrial, there is little point in addressing the particular complaints that have been advanced to support the ground of appeal that the verdict is unsafe and unsatisfactory.
Having regard to our conclusions with respect to ground 3, it is unnecessary for us to address the remaining grounds of appeal.
Conclusion
The appeal is allowed. The conviction is set aside. The proceeding is to be remitted for retrial.

[2011] SASCFC 16

22 March 2011

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Appeal

Sentencing