R v Moar

Case [2013] SADC 62 17 May 2013

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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 62
Introduction

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 1^st day of January 1967 and the 31^st day of December 1968 at Elizabeth West, indecently assaulted [GS], a male under the age of 17 years.
2.Between the 1^st day of January 1968 and the 31^st day of December 1968 at Elizabeth West, indecently assaulted [JS], a male under the age of 17 years.
3.Between the 1^st day of January 1968 and the 31^st day of December 1969 at Elizabeth West, indecently assaulted [MM], a male under the age of 17 years.
4.Between the 1^st day of January 1969 and the 31^st day of December 1969 at Elizabeth West, indecently assaulted [MK], a male under the age of 17 years.
5.Between the 1^st day of January 1970 and the 31^st 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…

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] SADC 62
Case: [2013] SADC 62
Decision Date: 17 May 2013

CaseChat Overview and Summary

The case of R v Moar involved a defendant who was charged with five counts of indecent assault. Each count related to a different complainant and the alleged offences were said to have occurred over a period of 40 years, during which the accused had been a teacher at the complainants' school. The accused had earlier been found to be mentally unfit to stand trial, leading to a trial of the objective elements of each count. The case raised several complex issues including forensic disadvantage, the absence of complaints at the time, the potential for the complainants to have a motive to lie, the possibility of collusion and concoction among the complainants, and the admissibility of cross-evidence.

The court was required to determine whether the objective elements of each indecent assault count were proven beyond reasonable doubt. This involved assessing the reliability and credibility of the complainants' testimonies, given the significant time that had elapsed since the alleged incidents. The court had to consider the potential for forensic disadvantage due to the age of the offences and the absence of contemporaneous complaints or evidence. Additionally, the court needed to evaluate whether there was any evidence of a motive for the complainants to lie, the potential for collusion or concoction among them, and the admissibility of cross-evidence from other complainants.

In reaching its decision, the court carefully examined the testimonies of the complainants and the evidence presented. The court acknowledged the difficulties in assessing the credibility of the complainants' accounts due to the passage of time and the lack of contemporaneous evidence. However, the court found that the objective elements of each count of indecent assault were proven beyond reasonable doubt, based on the consistency and detail of the complainants' testimonies, and the absence of any credible counter-evidence. The court also considered the potential for forensic disadvantage and other complicating factors but ultimately concluded that these did not undermine the overall reliability of the evidence presented.

The court ordered that the accused be found guilty on all five counts of indecent assault. The court's decision was based on the objective evidence presented and the conclusion that the complainants' testimonies were credible and reliable, despite the challenges posed by the age of the offences and the lack of contemporaneous evidence. The court's findings and orders highlighted the importance of carefully considering the credibility of complainants' accounts in historical sexual assault cases, even in the absence of other corroborative evidence.

Orders