R v Moar - [2011] SASCFC 16

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…

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 [2011] SASCFC 16
Case: [2011] SASCFC 16
Decision Date: 22 March 2011

CaseChat Overview and Summary

The Court of Appeal of Victoria heard an appeal by a defendant, R, against his conviction in the District Court for persistent sexual exploitation of a child. The conviction followed a trial conducted by a judge alone. Prior to the trial, an application was made asserting the defendant's unfitness to stand trial due to physical and mental ill health, which was dismissed.

The central legal issue before the Court of Appeal was whether a miscarriage of justice had occurred. This question arose from the trial judge's handling of medical evidence presented in relation to the defendant's fitness to stand trial and, subsequently, when assessing the defendant's credibility and reaching a verdict. Specifically, the court considered whether the judge adequately identified the specific medical reports relied upon and explained how that evidence informed his conclusions regarding the defendant's memory and the unconvincing nature of his explanations.

The Court of Appeal allowed the appeal, setting aside the conviction and ordering a retrial. The court reasoned that the trial judge had failed to clearly identify which medical reports he had considered concerning the defendant's illnesses, medication, and their impact on his memory. Furthermore, the judge did not articulate how this medical evidence was used in assessing the defendant's demeanour and explanations, which were found to be unconvincing. Given that the medical reports contained information requiring consideration regarding the defendant's memory, there was a risk that a miscarriage of justice had occurred.

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

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.

Ratio Decidendi

Legal Principle Established

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