R v Moar
[2013] SADC 62
•17 May 2013
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MOAR
Criminal Trial by Judge Alone
[2013] SADC 62
Reasons for Decision of His Honour Judge Chivell
17 May 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
Five counts of indecent assault - each on a different complainant and each alleged to have occurred over 40 years ago when the accused was a teacher at the complainants' school. Accused earlier found mentally unfit to stand trial - trial of objective elements of each count. Issues of forensic disadvantage, lack of complaint, motive to lie, collusion and concoction, and cross-admissibility.
Objective elements of indecent assault found proved beyond reasonable doubt in relation to each of the five counts.
Criminal Law Consolidation Act 1935 s 70(1)(c), s 269A(1), s 269B(1), s 269H, , s 269M B(1) & (2); Evidence Act 1929 s 34, s 34CB(2), s 34M(2), referred to.
R v T (1999) 75 SASR 235; R v R, R & R, LJ [2008] SASC 35; R v E (1996) 39 NSWLR 450; Palmer v R (1998) 193 CLR 1; Graham v R (1998) 195 CLR 606; R v SAP [2005] QCA 284; R v Basa [2012] SASCFC 35; R v M, BJ [2011] SASCFC 50, considered.
R v MOAR
[2013] SADC 62Introduction
Mr Moar is charged with five counts of indecent assault. The offence is created by s 70(1)(c) of the Criminal Law Consolidation Act 1935 (‘CLCA’). The particulars of each count are:
1.Between the 1st day of January 1967 and the 31st day of December 1968 at Elizabeth West, indecently assaulted [GS], a male under the age of 17 years.
2.Between the 1st day of January 1968 and the 31st day of December 1968 at Elizabeth West, indecently assaulted [JS], a male under the age of 17 years.
3.Between the 1st day of January 1968 and the 31st day of December 1969 at Elizabeth West, indecently assaulted [MM], a male under the age of 17 years.
4.Between the 1st day of January 1969 and the 31st day of December 1969 at Elizabeth West, indecently assaulted [MK], a male under the age of 17 years.
5.Between the 1st day of January 1970 and the 31st day of December 1970 at Elizabeth West, indecently assaulted [PV], a male under the age of 17 years.
On 16 April 2012, I found that Mr Moar was mentally unfit to stand trial pursuant to s 269H of the CLCA. This is a trial of the objective elements of these offences pursuant to s 269M B(1) and (2) of the CLCA. Those subsections provide:
(1) If the court records a finding that the defendant is mentally unfit to stand trial, the court must hear evidence and representations put to the court by the prosecution and the defence relevant to the question whether a finding should be recorded under this section that the objective elements of the offence are established.
(2) If the court is satisfied beyond reasonable doubt that the objective elements of the offence are established, the court must record a finding to that effect and declare the defendant to be liable to supervision under this Part; but otherwise the court must find the defendant not guilty of the offence and discharge the defendant.
Mr Moar elected to have this trial conducted by a judge sitting without a jury, pursuant to s 269B(1) of the CLCA.
The elements of the crime of indecent assault are:
(1) an application of force, in the sense of a touching;
(2) the touching was intentional;
(3) the touching occurred in circumstances of indecency.
Section 269A(1) of the CLCA defines the objective element of an offence as an element of an offence ‘that is not a subjective element’. A ‘subjective element’ is defined in the same section as ‘voluntariness, intention, knowledge or some other mental state that is an element of the offence’.
In R v T,[1] Doyle CJ said, in relation to an earlier version of s 269M B(2), which was not relevantly different from the present version:
If one thing is clear about the provision, it is that it is not intended to require proof of intention or other mental elements.
[1] (1999) 75 SASR 235
I therefore proceed to consider whether both of the following elements have been proved beyond reasonable doubt:
·a touching;
·in circumstances of indecency.
General Directions
The Supreme Court has stated that it is not necessary that I set out in these reasons all of the directions which a judge might give to a jury in a criminal trial.[2]
[2] R v R, R & R, LJ [2008] SASC 35
However, I remind myself of the following fundamental principles:
·The accused is entitled to the presumption of innocence - he is to be regarded as innocent unless and until his guilt has been proved by the prosecution beyond reasonable doubt.
·The burden of proving guilt rests on the prosecution. There is no onus on the accused to prove or explain anything. Any uncertainties or gaps in the prosecution case must be resolved in favour of the accused.
·Proof beyond reasonable doubt means what it says and needs no further elaboration. A mere suspicion of guilt, or that there is a probability of guilt, is not sufficient. Nothing short of proof beyond reasonable doubt is sufficient.
·Each count must be considered separately. It does not follow that because a finding of guilt in relation to one count is recorded, the outcome of any of the other counts need be the same. But in this case, I have held that the evidence of each complainant is cross-admissible in relation to the other counts. I deal with that issue in the section headed ‘Cross-Admissibility’. I remind myself that it is the similarity of their evidence, and not mere weight of numbers, that gives the complainants’ evidence probative force in relation to the others. I also caution myself to avoid propensity reasoning in relation to this evidence.
GS - Evidence
GS said he commenced at Elizabeth West High School (‘EWHS’) in around 1967. He completed his schooling there in 1972. Mr Moar was his woodwork teacher in his first and second years.
As to his relationship with Mr Moar, he said:
Fine. He was very amicable and approachable, more approachable than the other teachers – well, most of the other teachers at the time.[3]
[3] T53
GS said that in his second year, he thought in the winter-time, Mr Moar asked him to stay behind and help him clean up. He was about to put some tools away when he felt Mr Moar put him in a bear hug. He said:
Well, I tried to move, as in just move away, and I couldn’t. He was clamped down on both sides of my body. The only thing I then became conscious of was his hands, and his hands then started to make their way down inside my trousers, the front of my trousers. And he was talking to me and whispering in one ear, saying that, you know, I was a ‘good boy’ and ‘what a nice boy’ I am. And, as he’s saying that, his hand’s gone down inside my trousers and into my underpants, and then playing around with my pubic hair at the time and then moving down to the top part of my genitals area.[4]
[4] T55
GS said Mr Moar touched him in the area of his penis. He struggled but could not free himself. He heard the screen door squeak, Mr Moar released his grip and he ‘bolted … straight towards the door’.[5]
[5] T56
GS also described Mr Moar’s behaviour towards his male physical education class in the showers.[6] Clearly, this was inappropriate behaviour on the part of a teacher, and is relevant to the charge in the sense that it shows that Mr Moar had a sexual interest in adolescent boys.
[6] T57-8
Despite the fact that the incident occurred so long ago, GS said he remembered it very clearly. He said it was not possible that he was mistaken about this.[7] He had the same response when questioned about Mr Moar’s behaviour in the shower.
[7] T61
GS acknowledged that he had been told by PV, with whom he had ‘occasional’ contact over the years, that he, too, had been sexually abused by Mr Moar. PV told GS in 2003, when the limitation period was lifted, that he was going to report Mr Moar. PV asked him to provide a statement as well. He agreed to.[8]
[8] T63
GS is still friends with MK, and they had told each other about their experiences with Mr Moar, in ‘broad terms’.[9] GS had no contact with JS or MM until the day they gave evidence (ibid).
[9] T64
GS said he had not considered financial compensation, although he was aware that PV had discussed it with a solicitor (ibid).
JS - Evidence
JS attended EWHS, commencing in 1967. He left early in fifth year, in 1971. He became a lifelong friend of MM. He lost contact with VS, MK and GS.
JS knew Mr Moar as the woodwork teacher at school, and from baseball and rugby clubs. Asked how he got along with Mr Moar, he said:
Extremely well. You know, very well.[10]
[10] T69
JS said he was making a guitar as a project. He worked on it after normal school hours. He said he was alone in the classroom, and Mr Moar would be in his office.[11]
[11] T70
JS said that one night in second or third year, Mr Moar and he were leaving, when:
A.(W)e made our way to the entrance door which is a like a hallway going out of the building which was locked. I went first and as I went to the front door, obviously I was waiting for him to open the door, and as he came in, he came in behind me, put his arms over the top of me and held me and molested me at the front door, at the entrance door which was locked.
Q.When you say he molested you, what was the action he did.
A.He came in from behind me, put his hands down my trousers inside my underpants and fondled my testicles and my penis.[12]
[12] T71
JS said Mr Moar continued for 60 seconds, and then ‘he finally finished he opened the door and we left’.[13] He said Mr Moar drove him home. When asked why he told no one about it, he said:
There was nobody that I could go to. I was embarrassed. When I left that high school the counsellor was Jim Moar. Just imagine. I could go to a local priest perhaps.[14]
[13] T73
[14] ibid
He was asked about this in cross-examination:
Q.Just in relation to your lack of report, it’s possible you could have reported it to a teacher or a parent, isn’t it.
A.Yes, in hindsight it would have been but I still stand by what I say. When you’re that age you are just embarrassed, or I was embarrassed, I just let it ride.[15]
[15] T83
In cross-examination, JS was unsure if these events happened in his second or third year. He became a little irritated when questioned about it.[16]
[16] T75
JS was a close friend of Mr Moar’s stepson, and knew Mrs Moar before she and Mr Moar were married. He agreed that he may have built a pergola at the Moar house afterwards, and invited them, including Mr Moar, to his wedding.[17] He continued to have contact with Mr Moar through sport after he left school.[18]
[17] T77
[18] T78
JS insisted he had a clear memory of the incident.[19] Conceding that the incident happened a long time ago, he said:
I could have been mistaken about the dates, mistaken about the clothes, mistaken about the time. I’m not mistaken about him grabbing hold of me.[20]
[19] T80
[20] T81
JS denied being motivated by compensation. He denied having discussed that topic with anyone.[21] He commented:
If I was chasing compensation, I would have done it a long time ago.[22]
[21] T85
[22] T87
MM - Evidence
MM said he started at EWHS in 1968. Mr Moar was his woodwork teacher in first and second years. They were both involved in baseball and soccer as well. He said he got along with Mr Moar ‘extremely well’.[23]
[23] T90
MM described one occasion when he was finishing a food platter as a project. This was in summer, so in term 3 or 4, in second year, so in 1969. Mr Moar was working in his office. MM described what happened as follows:
A.I’d called him over to have a look at the finished product to see if it was smooth enough and he came over and stood next to me. Whilst I was showing him the piece of woodwork, he dropped his right hand down and grabbed hold of my penis.
Q.Was he standing on the left or right of you.
A.He was standing on my left and he did it with his right hand.
Q.Can you describe how he touched your penis.
A.He just dropped his hand down and then sort of grabbed like that (INDICATES).
Q.So with two fingers.
A.Thumb and finger it would have been.
Q.Did he touch you on the outside or the inside of your clothing.
A.On the outside of the clothes.
Q.Did he say anything when he did that.
A.No.
Q.Did you say anything.
A.Yes, I said ‘No’ and turned my body away (INDICATES).
Q.What happened when you did that.
A. He just walked away.[24]
[24] T92-3
MM said he left the room. He did not tell anyone because:
Didn’t think anybody would believe us.[25]
[25] T93
MM confirmed that he remains a good friend of JS. However, he has had little or no contact with GS, MK or PV since school days.
MM is now a school counsellor at a primary school in the Elizabeth area.
MM said he was ‘100% clear’ in his mind that the incident took place as he described.[26] He said he had not considered compensation ‘at this stage’.[27]
[26] T100
[27] T105
MK - Evidence
MK commenced his studies at EWHS in 1967. He left in 1971 after matriculating. He now works as a town planner.
Mr Moar was MK’s teacher for woodwork and physical education. He taught him woodwork in first and third years. MK described how he got along with Mr Moar as follows:
Very well. He was a very friendly – if you got into trouble or – very friendly, and also woodwork, it’s not exactly a science, it wasn’t maths, it was almost, you know, it was a fun thing to do.[28]
[28] T22
MK said that one evening he was working after school hours on a woodwork project. For some reason he had to go to the library. He described what happened:
I was looking for some books and I was the only one in the library and then, as I was facing that direction, then someone came behind me which was Mr Moar and he grabbed me from behind and I suppose it wasn’t vicious or aggressive but it was firm and I started to tussle out of it and then he probably became a bit more aggressive and then we stumbled, we fell down and Mr Moar came down on top of me, behind me. So I rolled over and at this time I was sort of punching and saying things like ‘Get off’ and ‘Piss off’ and things like that and then we got to the position where I was lying on my back and he was straddling me with his knees on each side of my body and I was punching up and pushing him away and saying ‘get away’, of which he was sort of trying to fend me off with one arm and then he reached back behind himself and grabbed – touched me, grabs me on the inside of my thigh and that was then I think I just became too hard and too strong for him. I was a fairly robust 16-year-old and he let me go and I got out of the library as quick as I could (INDICATES).[29]
[29] T23
He described the grabbing as like a ‘bear hug’.[30] He said Mr Moar touched his leg at the ‘top of the thigh’.[31] He said it was a ‘firm grab’.[32]
[30] ibid
[31] T25
[32] ibid
When asked whether he reported the incident, MK said:
I suppose – I suppose at that age you’re not aware of any formal process, so there was no-one I really told as a part of the school, the teacher/headmaster process. Probably mentioned it to a few friends but no-one specifically. It was a group atmosphere, so I didn’t take a friend into confidence and I certainly didn’t tell my parents.[33]
[33] ibid
In cross-examination, MK accepted that he told the police the touching was more of a ‘brushing’ with the hand rather than a ‘grab’.[34] He insisted that Mr Moar reached around behind him to effect the movement, however.[35] He denied that it would have been an accidental touching (ibid).
[34] T36
[35] T39
MK denied it was possible that he was mistaken about these events.[36] He conceded that he may be mistaken about some of the peripheral details but insisted that the core allegations were correct.
[36] T43
MK did not interpret Mr Moar’s actions at the time as being sexual in nature.[37] He has discussed the events with GS, who remains a good friend. He said neither of them used the word ‘sexual’.[38] He is not a friend of PV, JS or MM. He said he had not considered compensation.[39] He denied that he and GS have concocted this evidence.[40]
[37] T44
[38] T46
[39] T47
[40] T51
PV - Evidence
PV commenced his studies at EWHS in 1969. He was there for just over two years. Mr Moar was his woodwork teacher in both years. PV said he got along with Mr Moar ‘… fine. There was no animosity, no – yeah, just fine’.[41]
[41] T114
PV said there was one occasion when he was at the woodwork centre at school after hours. Mr Moar had asked him to help him make a bed as he was about to get married. He said Mr Moar told him to go with him to the storage area and collect some wood. He described what then happened:
A.I felt him come behind me with his arms coming around my body underneath my arms, around. His hands went down the front of my trousers.
Q.What did his hands do when he went down the front of your trousers.
A.They were just down the front of – near my genitals. Just stopped and I’d already started reacting at that stage, being quite fearful.
Q.Did he touch your genitals.
A.His hands were in that area and I’m not sure if he was inside my underpants or not. I didn’t stop to analyse that but it had – definitely right inside my jeans.
Q.You said ‘hands’, was it both hands.
A.Both hands, one from each side, like around my body (INDICATES).
Q.How long were his hands down your pants for.
A. Wouldn’t have been long because I immediately put up a fight.
Q.How did you do that.
A.I was struggling sideways, trying to get out, like it was like a bear hug type situation and I had a wild flashback of pushing him hard up against the wall to try and hurt him to make him let go.
Q.What happened then.
A.He did let go and from that point on, I have no recollection.[42]
[42] T117-18
When he was asked why he told no one about the incident, PV became distressed. He then said:
Sorry about that. Just no-one to tell.[43]
[43] T119
PV said he had seen GS from time to time since school, but not MK, MM or JS. He denied being motivated by compensation. He denied concocting his evidence with MK and GS. He explained:
A.No, I had presented my case to police in 2003, two years before [MK] and [GS] and I wasn’t even aware that we were linked in that matter.
Q.You were aware of the need for corroboration.
A.No.
Q.You haven’t heard of ‘corroboration’.
A.I understand corroboration. I reported my matter to police way before they had. There was no corroboration needed.[44]
[44] T128
PV has been active in seeking redress. He made representations to the Legislative Council Joint Committee considering abolition of the limitation period for prosecution of sexual offences. This eventually occurred in 2003. He said he reported this matter to police the day after the bar was abolished.[45] He told GS about that.[46]
[45] T128
[46] T129
PV consulted a solicitor about compensation in 2002, but did not proceed. He said he was told that without a (criminal) conviction, his application would not succeed.[47] He thought that seeking legal redress was the only way to get ‘closure and accountability’, but this was prevented until the statutory bar was lifted.[48]
[47] T132
[48] ibid
When it was put to PV that he was pursuing these charges for financial gain, he was contemptuous. He referred to the ‘victims of crime levy’ being retrospective. I think he was referring to the scale under the Criminal Injuries Compensation Act as it existed then. He said:
Totally disagree. If I was to get payment now, one of the problems, Mr Mitchell pointed out was the victims of crime levy is retrospective. You think I’m going to go through all this crap for 500 bucks?[49]
[49] T137
Agreed Facts
The following facts were agreed by counsel pursuant to s 34 of the Evidence Act:
1. The accused’s date of birth is 31 August 1937.
2.The accused was a teacher at [EWHS] from 1 January 1967 to December 1973. The accused taught woodwork studies, physical education, geography and was a school counsellor throughout his employment at the school.
3.While employed at [EWHS] the accused owned a blue Ford Falcon.
4.The accused married Mona Moar on 10 May 1970.
5.[GS] was born 29 March 1954.
6.[GS] attended [EWHS] from 1966 – 1969, and in 1971.
7.[GS] was taught woodwork studies by the accused at [EWHS].
8.[JS] was born 15 October 1953.
9.[JS] attended [EWHS] from 1967 – 1970.
10.[JS] was taught woodwork studies by the accused at [EWHS].
11.[MM] was born 23 August 1954.
12.[MM] attended [EWHS] from 1968 – 1972.
13.[MM] was taught woodwork studies by the accused at [EWHS].
14.[MK] was born 7 April 1954.
15.[MK] attended [EWHS] from 1967 – 1972.
16.[MK] was taught woodwork studies by the accused at [EWHS].
17.[PV] was born 26 September 1955.
18.[PV] attended [EWHS] from 1969 – 1971.
19.[PV] was taught woodwork studies by the accused at [EWHS].
Although some of the witnesses gave slightly different evidence, the differences were not material. I accept the accuracy of the agreed facts wherever such a variance exists.
Counsel’s Submissions
Ms Cairney acknowledged that the time interval between the events in question and the hearing is very substantial – in each case more than 40 years. For that reason, she submitted that I should scrutinise the evidence of each complainant carefully.
Forensic Disadvantage – s 34CB of the Evidence Act 1929
From their evidence, GS was referring to a time in the winter of 1968, JS in 1968 or 1969, MM to late 1968, MK to 1969 and PV to 1970.
Mr Perrotta referred to the ‘fleeting’ nature of the allegations – a single incident, lasting only seconds, with no previous grooming, no identified landmark such as birthdays or other special occasions, and no sequelae. He pointed out that it is impossible for Mr Moar to seek witnesses, or records, to dispute the complainants’ evidence. There were no complaints made to the police or to school officials to create a contemporaneous record of these events. Mr Perrotta said his ability to cross-examine these witnesses was severely limited as a result. I accept that these complaints are valid.
Clearly then, Mr Moar has suffered a forensic disadvantage, within the meaning of s 34CB(2) of the Evidence Act. I must take that forensic disadvantage into account when scrutinising the evidence. Indeed, I must scrutinise the evidence with great care, and not reach a conclusion of guilt unless I am satisfied beyond reasonable doubt after taking the forensic disadvantage into account.
Ms Cairney said that each of the complainants acknowledged the frailty of memory when questioned about matters of detail. They made no attempt to reconstruct or exaggerate their evidence.
Mr Perrotta put to each witness that he was either mistaken that these events occurred, or that he had concocted his evidence for financial gain.
While the acknowledged inability to recall matters of detail, and the absence of exaggeration or reconstruction, reflected well upon the honesty and integrity of each witness, it is an example of the forensic disadvantage I have just discussed, in that it limited the ability of the defence to cross-examine effectively.
However, each witness was absolutely convinced of the accuracy of the ‘core’ allegations he was making. Each of them, in different ways, said that these were not matters which they were likely to forget, or be mistaken about.
Experience has shown that human memory is susceptible to displacement and revision as a result of subsequent events. I must take into account whether it is a possibility that the complainants have unconsciously constructed a false memory of these events over the intervening years.
Lack of Complaint
There is no evidence that Mr Moar threatened or in any other way caused fear to any of the complainants. Indeed, two of them had some dealings with him afterwards.
For example, JS built a pergola at Mr Moar’s house and invited Mr and Mrs Moar to his wedding. He explained that Mr Moar’s stepson was his best friend, and he got on very well with Mrs Moar.[50]
[50] T73
MM said his relationship with Mr Moar did not change – they both proceeded ‘as if nothing had happened’.[51]
[51] T100
The other three complainants said they had little, if anything, to do with Mr Moar and avoided being alone with him.
Section 34M(2) of the Evidence Act states:
In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.
Of course, there was no jury in this case, but the policy behind the section is clear – it is not appropriate to argue that in a trial of a sexual offence, a failure to make, or a delay in making, a complaint is of itself of probative value.
These were young, teenage boys. They all said, in effect, that they felt unsupported by the legal system, and that they would have been accusing a person in authority. This was the late 1960s, when attitudes to the appropriate way to handle complaints of child sexual abuse were very different. A combination of youthfulness, fear and lack of knowledge is a powerful factor. As the complainants got older the statutory bar became a factor, until it was lifted in 2003.
Mr Perrotta argued that it is remarkable that none of the five complainants made a complaint at the time. I do not find that remarkable. It has been the recent experience of the courts that there are many such people, people who have not complained of child sexual abuse until recent years. The change in societal and legal attitudes to such cases is clearly a reason for that.
Motive to Lie
There is no evidence that any of the five complainants bore any ill will to Mr Moar prior to these alleged events, nor is there evidence that anything had happened since to provide a motive for any of them to make a false complaint, let alone for them to get together to concoct a series of false complaints.
Mr Perrotta suggested to all of the complainants that they were motivated by financial gain. They all denied it.
PV was the only one who had done anything about making a claim for compensation. He said he sought legal advice before the statutory bar was lifted in 2003. His contemptuous reply to the suggestion was:
You think I’m going to go through all this crap for 500 bucks?[52]
PV apparently understands that if he did get compensation, it would be at 1970 levels.
[52] T137
Mr Moar is under no onus to prove or explain anything. In particular, he is not required to suggest a motive for lying. Having suggested it, he is under no onus to prove it. The onus is always on the prosecution to satisfy me beyond reasonable doubt that the complainant in each count is giving truthful evidence (see R v E;[53] Palmer v R;[54] Graham v R;[55] R v SAP[56]). I must be conscious that there may be the possibility that one or more of them are lying for a reason which is not apparent. I must be satisfied beyond reasonable doubt that that is not so.
[53] (1996) 39 NSWLR 450
[54] (1998) 193 CLR 1
[55] (1998) 195 CLR 606
[56] [2005] QCA 284
Collusion and Concoction
The evidence shows that JS and MM have remained friends ever since school days. They have not stayed in touch with the other complainants since school.
JS told MM in around 1989 that he had been abused by Mr Moar. MM did not reciprocate at that stage.
GS and MK have also remained friends since school. They have told each other of these allegations since they left school. MK had not stayed in contact with the other complainants since school.
GS and PV also remain friends. They told each other about their allegations in the early 2000s.
Apart from those two links, GS was not in contact with the others since school days, and PV had only the one link with GS.
This is an important matter. In R v Basa,[57] Vanstone J said:
There is a further matter to be considered. When S2, F1 and F2 gave their evidence, it was put to them that they had concocted the allegations between themselves. It became apparent that the appellant’s defence to the charges, so far as these three girls were concerned, was that they had conspired together to falsely incriminate him. In those circumstances the evidence of S1 became even more probative. The complainant S1 was not known to any of the other complainants. At the cessation of her mother’s marriage with the appellant there was no more contact with the appellant. She had never met the other complainants. It could not be, and was not, suggested that she was involved in any concoction with those girls. In those circumstances her evidence, presenting as it did the parallels I have mentioned, became even more probative of the appellant’s guilt of all the charges.
[57] [2012] SASCFC 35 at [16]
In this case, GS said that, since school days, he had not met JS and MM until the day he first gave evidence. JS said he had not seen MK and GS since school. MM said he had not seen them for 40 years. PV said he had had little, if any, contact with MK, MM and JS during the same period. I accept the honesty and reliability of this evidence.
In those circumstances, I am satisfied beyond reasonable doubt that collusion or concoction has not occurred.
Cross-Admissibility
Ms Cairney submitted that there is an ‘underlying unity’ to the evidence of the five complainants which makes the totality of this evidence stronger than the sum of each of the parts. In R v M, BJ,[58] Vanstone J said:
The exclusionary rule is that “evidence that reveals that the accused is a person of bad character is not admissible if it proves no more than that he or she has a general disposition or propensity to commit crime or crime of a particular kind”: Pfennig v The Queen (1995) 182 CLR 461 per McHugh J at 512, citing R v Makin (1893) 14 LR (NSW) 548; [1894] AC 57. However, similar fact evidence or propensity evidence may be relevant and admissible because of the light it throws on any of a number of issues in a case. For example, it might assist in proving identity or intention, or in disproving accident or mistake or innocent association: Thompson v The Queen (1989) 169 CLR 1 at 16.
The probative value of such evidence might arise from the fact that it bears striking similarities to the allegations made in relation to another offence for which the accused is on trial. But equally its strength might lie in the “‘unusual features’, ‘underlying unity’, ‘system’ or ‘pattern’ [which it reveals] such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution”: Hoch v The Queen (1988) 165 CLR 292 at 294-295. The process of reasoning involved is that of “admeasuring the probability or improbability of the fact or event in issue, … given the fact or facts sought to be adduced in evidence”: Martin v Osborne (1936) 55 CLR 367 at 385 per Evatt J. To put it slightly differently, there needs to be such a nexus between the various sets of allegations that they must either all be true or have arisen from “a cause common to the witnesses or from pure coincidence”: Director of Public Prosecutions (UK) v Boardman [1975] AC 421 at 444 per Lord Wilberforce.
The sole criterion for the admission of the evidence is the strength of its probative force, rather than any judgement that one or more of the labels mentioned above is apt to fit it: Hoch at 294. The degree of probative force required has been described as such that to exclude the evidence would be “an affront to common sense”: Boardman per Lord Cross of Chelsea at 456; and as such that it “clearly transcends its merely prejudicial effect”: Perry v The Queen (1982) 150 CLR 580 at 609 per Brennan J; Phillips v The Queen (2006) 225 CLR 305 at 320 per the Court. So far as it goes, this summary is unaffected by the new subsection.
[58] [2011] SASCFC 50 at [26-28]
The similarities in the evidence given by each complainant in this case are obvious:
·Each complainant was in his early to mid-teens.
·There was a relationship of teacher to student in each case.
·Each complainant said he had a positive relationship with Mr Moar.
·Each act occurred on school grounds (all bar one in the woodwork building).
·Each act occurred after normal school hours when the complainant was alone with Mr Moar, either at his or their request.
·There had been no ‘grooming’ of any of the complainants.
·With the exception of MK’s case, there was a similar act of grabbing and overpowering, or attempting to overpower, the complainant in a ‘bear hug’. The only reason this did not happen in MK’s case was that his struggling was more successful, causing them both to fall to the floor.
·Apart from GS’s case, nothing was said either by the complainant or Mr Moar at any relevant stage.
The similarities in these accounts are so striking, the ‘underlying unity’ so powerful, that the probative force of the totality of this evidence is overwhelming. In the absence of collusion or concoction, the objective improbability of these events occurring other than as described by the witnesses is such that I am satisfied beyond reasonable doubt that each of these events occurred in the manner deposed to.
Mr Perrotta argued that in relation to count 4, there is no evidence that the touching of MK’s thigh occurred in circumstances of indecency. I disagree. When considered alone, Mr Moar’s behaviour in grabbing, or attempting to grab, MK in the way he described can have no other than a sexual explanation. I do not regard it as significant that MK did not regard this as a sexual incident at the time. There was no fight, no argument, no cause for him to touch MK at all. When viewed in the context of Mr Moar’s similar behaviour in relation to the other four complainants, I reject the suggestion that the circumstances of that incident were anything other than indecent. I am satisfied beyond reasonable doubt about that.
Conclusion
I am satisfied that the objective elements of indecent assault have been proved beyond reasonable doubt in relation to all five counts on the information.
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