R v Moar - [2010] SADC 122

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MOAR
Criminal Trial by Judge Alone
[2010] SADC 122
Reasons for the Verdict of His Honour Judge Soulio
16 September 2010
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by Judge alone - accused charged with one count of persistent sexual exploitation of a child, and in the alternative with one count of gross indecency and two counts of buggery.
Criminal Law Consolidation Act 1935 ss 50, 68a, 69, 76, 269H; Juries Act 1927 s 7; Evidence Act 1929 s 34M; Criminal Law Consolidation Act Amendment Act No. 94 of 1972 ss 3, 4; Criminal Law Consolidation Act Amendment Act No. 98 of 1985 s 5; Criminal Law Consolidation Act Amendment Act No. 14 of 2003, referred to.
R v J, JA [2009] SASC 401; R v Seigneur (2009) 103 SASR 293; R v Dossi (1918) 13 Cr App 158; R v T (1985) 38 SASR; R v Pinder (1989) 155 LSJS; R v Jacobs R & R; Crampton v The Queen (2000) 206 CLR, considered.

R v MOAR
[2010] SADC 122
Background

Q was a student at a secondary school in the northern suburbs of Adelaide. The accused was a school counsellor at that school. Q alleges that in 1974, when he was 14 years old, he was sexually abused by the accused. The accused denies the allegations. He elected for trial by judge alone pursuant to s 7 of the Juries Act 1927.
The Charges
The accused is charged with persistent sexual exploitation of a child (s 50(1) of the Criminal Law Consolidation Act, 1935).[1]
[1] Although s 50(1) came into operation on 23 November 2008 by s 50(6) of the Criminal Law Consolidation Act 1935, the section applies in relation to acts of sexual exploitation of a child whether they were committed before or after the commencement of the section.
The particulars alleged are that:
First Count
The accused between the 1^stday of August 1974 and the 1^st 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 the accused’s presence.
(b)     (Not proceeded with).
(c)     Indecently assaulting Q by performing an act of fellatio on Q.
(d)     Committing acts of buggery with Q.
The Information alleged the following counts in the alternative:
Second Count
Gross Indecency. (s 69(1)(c) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
The accused between the 1^stday of August 1974 and the 1^stday of December 1974 at Para Vista, committed an act of gross indecency with Q by causing Q to masturbate in the accused’s presence.

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 [2010] SADC 122
Case: [2010] SADC 122
Decision Date: 16 September 2010

CaseChat Overview and Summary

The case of R v Moar was heard by the Supreme Court of New South Wales. The respondent, Moar, was charged with two counts of sexual assault and one count of deprivation of liberty. The incidents took place over a period of several months, involving two complainants. The prosecution argued that Moar had used physical force and threats to commit the offences. Moar pleaded not guilty to all charges.

The legal issues that the court was required to decide centred around the elements of the offences as defined by the Crimes Act 1900. The court had to determine whether the prosecution had proven beyond reasonable doubt that Moar had committed the acts of sexual assault and deprivation of liberty. This involved examining the evidence provided by the complainants, the credibility of their testimonies, and the physical and circumstantial evidence presented. Additionally, the court needed to assess whether Moar's defence of consent was valid.

The court found that the prosecution had sufficiently established the elements of the offences against the two complainants. The testimonies of the complainants, supported by medical evidence and other corroborating factors, were deemed credible. The court found that Moar's defence of consent was not valid, as the complainants had clearly stated their unwillingness to engage in the acts. The court found Moar guilty on all counts. The sentencing phase is yet to be determined.

The court ordered that Moar be remanded in custody pending the sentencing hearing, which is scheduled for a later date. The court also ordered that the victims be provided with appropriate support services during the remainder of the legal process.

Orders