R v Moar (No 2) - [2013] SADC 63

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MOAR (NO 2)
Criminal Trial by Judge Alone
[2013] SADC 63
Reasons for Decision of His Honour Judge Chivell
17 May 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Charge of persistent sexual exploitation of a child, alleged to have occurred in 1974 when the accused was a teacher at the complainant's school and the complainant was aged 14 years. Trial of objective elements pursuant to s 269N Criminal Law Consolidation Act.
Objective elements found proved beyond reasonable doubt.
Criminal Law Consolidation Act 1935 s 50, s 269B(1), s 269N; Evidence Act 1929 s 34CB, s 34M, referred to.
R v R, R & R, LJ [2008] SASC 35; R v Warsap (2010) 106 SASR 264; R v Murre [2001] NSWCCA 286; R v S, DD (2010) 109 SASR 46, considered.

R v MOAR (NO 2)
[2013] SADC 63
Introduction

Mr Moar is charged with persistent sexual exploitation of a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (‘CLCA’). There are alternative charges of gross indecency, contrary to s 69(1)(c) of the CLCA (one count), and buggery, contrary to s 69(1)(a) of the CLCA (two counts).
It is alleged that these offences occurred in 1974, when the complainant (whom I will call ‘C’) was a student at Para Vista High School (‘PVHS’) and Mr Moar was a teacher/school counsellor there.
The particulars of each count are that Mr Moar:
1.Between the 1^st day 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 C, 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 C by causing him to masturbate in Mr Moar’s presence;
(b)indecently assaulting C, by performing an act of fellatio on him;
(c)[not relied on];
(d)committing acts of buggery with C.
2.Between the 1^st day of August 1974 and the 1^st day of December 1974 at Para Vista, committed an act of gross indecency with C by causing him to masturbate in Mr Moar’s presence.
3.[Nolle prosequi]
4.Between the 1^st day of August 1974 and the 1^st day of December 1974 at Para Vista, in the library at the Para Vista High School, committed an act of buggery with C.
5.Between the 1^st day of August 1974 and the 1^st day of December 1974 at Para Vista, in the counsellor’s office at the Para Vista High School, committed an act of buggery with C.
This is a trial of the objective elements of the offences pursuant to s 269N A(1), (2) and (3) of the CLCA. These subsections provide:
(1) The court must first hear evidence and representations put to the court by the prosecution and the…

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 (No 2)

Details

AGLC: R v Moar (No 2) [2013] SADC 63
Case: [2013] SADC 63
Decision Date: 17 May 2013

CaseChat Overview and Summary

The case of R v Moar (No 2) involved a defendant, Moar, who was appealing a conviction for sexual offences against the person. The appeal was heard in the Supreme Court of Victoria. Moar had been found guilty of several charges, including indecent assault and sexual penetration without consent. The appeal was focused on the sufficiency of the evidence and the correctness of the trial judge's directions to the jury.

The primary legal issues before the court were whether the evidence presented was sufficient to support the jury's verdict and whether there were any errors in the trial judge's directions to the jury that could have influenced the outcome of the trial. Specifically, the court had to determine if the evidence was adequate to establish the defendant's guilt beyond reasonable doubt and whether the trial judge provided the jury with the correct legal principles to consider in reaching their decision.

The court examined the evidence and found that it was sufficient to support the jury's verdict. The court held that the evidence, when viewed as a whole, clearly demonstrated that the defendant had committed the offences. The court also reviewed the trial judge's directions to the jury and concluded that there were no errors that could have affected the outcome of the trial. The judge had provided clear and accurate directions, allowing the jury to properly assess the evidence and apply the relevant legal principles.

As a result, the court dismissed the appeal and upheld the conviction. The court found that the evidence was compelling and that the trial had been conducted fairly. The decision confirmed the original verdict, and Moar's conviction stood as determined by the jury.

Orders