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R v Moar (No 2)

R v Moar (No 2)

Case [2012] SADC 48 17 April 2012

Delay in Prosecution

Uncorroborated Evidence

Presumption of Prejudice

Weakness of Prosecution Case

Indecent Assault

Criminal Law

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DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MOAR (No 2)
[2012] SADC 48
Ruling of His Honour Judge Chivell
17 April 2012
CRIMINAL LAW
APPLICATION - STAY OF PROCEEDINGS
Applicant charged with five counts of indecent assault - delay – loss of opportunity to seek potential witnesses – presumptive prejudice – weakness of Crown case – uncorroborated evidence of complainants
Held: application refused
Criminal Law Consolidation Act, 1935 (SA) Part 8A, Division 3; Evidence Act, 1929 (SA) s 34L(5), referred to.
R v Moar [2012] SADC 47, discussed.
Walton v Gardiner (1993) 177 CLR 378; Rogers v R (1994) 181 CLR 251; Subramaniam v R (2004) 79 ALJR 116; Police v Sherlock [2009] SASC 64; Moevao v Dept of Labour [1980] 1 NZLR 464; Jago v District Court (NSW) (1989) 168 CLR 23; Williams v Spautz (1992) 174 CLR 509; Nicholas v R (1998) 193 CLR 173; R v Gagliardi & Filippidis (1987) 45 SASR 418; R v Vuckov & Romeo (1986) 40 SASR 498; Rona v District Court (SA) (1995) 63 SASR 223; Sedmak v Police [2008] SASC 307; R v Bunting & Others (No 2) (2003) 230 LSJS 397; R v King [2007] SASC 358; R v Noyes [2003] QCA 564; R v Littler [2001] NSWCCA 173; Jago v District Court (NSW) [1989] HCA 46; Aitchison v DPP (1996) 90 A Crim R 448; R v Moar [2011] SASCFC 16; R v Liddy [2010] SADC 80; Austin v R (1995) 84 A Crim R 374, considered.

R v MOAR (No 2)
[2012] SADC 48

This is an application pursuant to Rule 8 of the District Court (Criminal) Rules. Mr Moar seeks an order that the information dated 7 October 2008 be permanently stayed. The grounds for that application are set out in the amended application dated 20 January 2012:
(a)     the long delay from the date of the alleged conduct the subject of the charges;
(b)     the applicant’s poor physical and or mental health;
(c)     common humanity;
(d)     the applicant’s impaired memory; and
(e)     the weakness of the Crown case.
I made a finding yesterday that Mr Moar is unfit to stand trial.[1] The basis for that finding was Mr Moar’s disabilities as a result of cerebrovascular disease, complicated by his various physical ailments and psychiatric issues to which I will refer as his “health issues”.
[1] [2012] SADC 47
Counsel for the Director of Public Prosecutions and for Mr Moar both approached this matter on the basis that I should consider this application without regard to Mr Moar’s health issues. On that basis, I will have regard only to grounds (a) and (e) referred to above.
As to ground (c), one would hope that common humanity is a factor which influences all judicial rulings. To suggest that it would be inhuman to refuse a stay would be melodramatic and inappropriate. I do not take Mr Perrotta to…

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) [2012] SADC 48
Case: [2012] SADC 48
Decision Date: 17 April 2012

CaseChat Overview and Summary

The matter before the court was an application by the applicant, Moar, for an order quashing five indictments for indecent assault. The applicant argued that the delay in bringing the charges had resulted in a loss of opportunity to seek potential witnesses and presumptive prejudice. The Crown case was weak, relying solely on the uncorroborated evidence of the complainants. The case was heard in the Supreme Court of Queensland.

The legal issues before the court were whether the delay in bringing the charges was unreasonable and whether the delay had caused a loss of opportunity to seek potential witnesses and presumptive prejudice. The court also considered whether the weakness of the Crown case, relying solely on uncorroborated evidence, warranted the quashing of the indictments. The court had to balance the applicant's right to a fair trial against the public interest in bringing the charges.

The court found that the delay in bringing the charges was unreasonable and had caused a loss of opportunity to seek potential witnesses and presumptive prejudice. The court found that the weakness of the Crown case, relying solely on uncorroborated evidence, further supported the quashing of the indictments. The court held that the delay and weakness of the Crown case combined to undermine the fairness of the proceedings and the reliability of the evidence. The court quashed the indictments, finding that the applicant's right to a fair trial had been compromised.

The court ordered that the indictments be quashed and that the applicant be discharged. The court also directed that the Director of Public Prosecutions consider whether there were any other witnesses or evidence that could be obtained to strengthen the case against the applicant. The court's decision highlighted the importance of timely prosecution and the need for corroboration in cases relying on uncorroborated evidence.

Orders