R v Moores

Case [2017] SASCFC 95

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v MOORES

[2017] SASCFC 95

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice Blue and The Honourable Justice Doyle)

11 August 2017

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - INCONSISTENT VERDICTS

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION

CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - OBJECTIONS AND POINTS NOT TAKEN AT TRIAL - WHEN NOT ALLOWED TO BE RAISED - FAILURE TO TAKE OBJECTION - ADMISSIBILITY OF EVIDENCE

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INTOXICATION - DIRECTIONS TO JURY

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE  - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - EVIDENCE OF UNCHARGED ACTS

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY

Appeal against conviction of one count of rape and one count of causing harm with intent to cause harm. 

On the night of 27/28 March 2015 the complainant visited the appellant’s house and they engaged in consensual vaginal intercourse and intercourse which the appellant testified was not with her consent but was not the subject of a charge.  The appellant then engaged in oral and anal intercourse which the complainant testified was without her consent and was the subject of counts 1 and 2 of which the jury ultimately found the appellant not guilty. 

The complainant testified that in the morning the appellant engaged in vaginal intercourse without her consent, in the course of which he choked her four times, on the third of which she lost consciousness.  The vaginal intercourse was the subject of count 3 and the choking was the subject of count 4, of which the jury ultimately found the appellant guilty.

Later that morning, the complainant spoke to R, saying that the night had started off well, they had sex, it got rough and she asked the appellant to stop but he kept going.  The appellant then spoke to D and told him that the evening went weird, the appellant was a freak and the appellant was choking her when they were having sex. 

Between 28 March and 1 April 2015 there were a series of Facebook text messages exchanged between the appellant and the complainant.  In the course of those messages the complainant complained about the appellant’s conduct.  The appellant responded that he was sorry if he was too rough, said he should not have drunk so much and he got carried away and said that he felt really bad, he was not a bad guy and he wanted to make it up to her.

At trial, there was no objection to the evidence about the…

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R v Moores [2017] SASCFC 95
Case
[2017] SASCFC 95
Decision Date

CaseChat Overview and Summary

The appellant, R v Moores, appealed against convictions on several grounds, including the admission of evidence of conversations between the complainant and two individuals, R and D, which the appellant argued did not constitute a "complaint" under section 34M of the *Evidence Act 1929* (SA). The appeal also raised issues concerning the adequacy of the trial judge's directions to the jury regarding complaint evidence, subsequent text messages, discreditable conduct, intoxication, the meaning of harm and intent for a specific count, and the potential use of not guilty verdicts on some counts in relation to others. The appellant further contended that the verdicts were unreasonable and unsupported by the evidence.

The central legal issues before the court were whether the complainant's statements to R and D qualified as admissible "complaints" of a sexual offence under section 34M of the *Evidence Act 1929* (SA), and whether the trial judge's directions to the jury on various evidentiary matters, including the admissibility and use of complaint evidence, intoxication, and the implications of prior verdicts, were adequate and free from error. The court also considered whether the verdicts returned by the jury were unreasonable.

The court found no merit in the ground of appeal concerning the admissibility of the complaint evidence, noting that no objection was made at trial on the specific ground that the statements did not constitute a complaint of a sexual offence. It was held that a forensic decision likely led to this failure to object, and the appellant was generally bound by the case run at trial. The court also considered other grounds of appeal, granting permission to appeal on some and refusing it on others, ultimately dismissing the appeal.

Orders

Orders of the court

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Background

Background to the litigation

The appellant appeals and seeks permission to appeal against the convictions on grounds that:1.the trial miscarried due to the admission of evidence of conversations between the complainant and R and D when what was said by the complainant did not amount to a “complaint” within the meaning of section 34M of the Evidence Act 1929 (SA);[3]2.the Judge failed to direct the jury adequately and erroneously directed the jury in relation to the complaint evidence;[4]3.the Judge failed to direct the jury adequately in relation to subsequent Facebook text messages between the complainant and appellant;[5]4.the Judge erred in directing the jury in relation to discreditable conduct evidence;[6]5.the Judge failed to direct the jury adequately in relation to the effect of intoxication on the complainant’s evidence and proof of the mental element of each count;[7]6.the Judge failed to direct the jury adequately as to the meaning of harm and intent to cause harm for the purpose of count 4;[8]7.the Judge failed to adequately direct the jury as to the potential use of findings of not guilty on the first two counts in relation to proof of the second two counts;[9]8.the verdicts are unreasonable and incapable of being supported having regard to the evidence.[10][3] Ground 1. Permission to appeal referred to Full Court.[4] Ground 1A.4 permission to appeal granted. Grounds 1A.1-1A.3 permission to appeal referred to Full Court.[5] Ground 2 permission to appeal granted. [6] Ground 4.2 permission to appeal granted. Ground 4.1 permission to appeal referred to Full Court.[7] Grounds 6.2 and 6.3 permission to appeal granted. Ground 6.1 permission to appeal referred to Full Court.[8] Ground 3.1 permission to appeal granted. Grounds 3.2-3.4 permission to appeal referred to Full Court.[9] Ground 5 permission to appeal referred to Full Court.[10] Ground 7 permission to appeal referred to Full Court. Background The appellant and complainant were both 36 years old as at March 2015. They were acquaintances who had met up from time to time when they were around 14 and again when they were around 20, after which they lost contact. In their early thirties they became Facebook friends for two or three years, after which they again lost contact when the appellant deleted his Facebook account. In March 2015 the appellant and complainant again became Facebook friends when the appellant created a new Facebook account. They exchanged messages and arranged to meet on 22 March in Freeling where the appellant lived. The appellant drove to the appellant’s house and stayed there between about 2 pm and 11 pm. There was no romantic contact on the complainant’s account. In due course they arranged for the complainant to visit the appellant on the following Friday evening. On 27 March 2015 at about 8 pm the complainant arrived at the appellant’s house. They sat around drinking, listening to music and talking. In the early hours of the morning (between 1.30 and 3 am) they engaged in consensual vaginal intercourse.

Evidence

Evidence Before The Court

Section 34M relevantly provides:34M—Evidence relating to complaint in sexual cases(1) This section abolishes the common law relating to recent complaint in sexual cases.Note—See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427…(3)Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.Examples—Evidence may be given by any person about—• when the complaint was made and to whom;• the content of the complaint;• how the complaint was solicited;• why the complaint was made to a particular person at a particular time;• why the alleged victim did not make the complaint at an earlier time.(4)If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—(a)it is admitted—(i)to inform the jury as to how the allegation first came to light; and(ii)as evidence of the degree of consistency of conduct of the alleged victim; and(b)it is not admitted as evidence of the truth of what was alleged; and(c) there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person,but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.…(6) In this section—complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time). It is common ground that to be admissible under subsection 34M(3) a complaint must be a complaint of a sexual offence.[13] The evidence is admitted for the purposes of identifying how the allegation first came to light and as evidence of the degree of consistency of conduct of the alleged victim (the permissible purposes) but not as evidence of the truth of what was alleged (the impermissible purpose).[13] This appears from the requirement in subsection (3) that the complaint be “of an alleged sexual offence” and the definition of “complaint” in sub-section (6). See R v Usher [2014] SASCFC 32, (2014) 119 SASR 22 at [49] per Kourakis CJ (with whom Peek J agreed). The appellant contends that the evidence established no more than a statement by the complainant to D that he choked her while having sexual intercourse without an allegation of lack of consent to the intercourse (or for that matter to the choking) and hence it was not admissible under subsection 34M(3). No objection was made at trial to the admission of the evidence of what the complainant told D on this ground. Counsel for the appellant queried at the outset of the trial whether the complaint to D was an “elaboration” of the complaint to R (without actually objecting to its admission on that ground) but there was no contention that the complaint was not of a “sexual offence”. It is likely that a forensic decision was made not to object because what the complainant did not say to D might advantage the defence. The appellant is usually bound by the case he ran at trial when forensic decisions of this nature are made.[14] [14] R v T, S [2017] SASCFC 67 at [145] per Hinton J (with whom Kelly and Nicholson JJ agreed).

Decision

Reasons for decision

There is no merit in this ground of appeal. I would refuse permission to appeal on this ground.Conclusion I would grant permission to appeal on grounds 1, 1A.2 and 1A.3. I would refuse permission to appeal on grounds 1A.1, 3.2, 3.3, 4.1, 5 and 7. I would dismiss the appeal.DOYLE J: I agree with the reasons of Blue J and the orders he has proposed

Ratio Decidendi

Legal Principle Established

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