R v Moss

The appeal concerned a conviction against the appellant, Mr Moss, by a jury on charges of aggravated assault, attempted rape, and indecent assault. Mr Moss was acquitted of rape but found guilty of attempted rape, and acquitted of a separate charge of assault. The dispute arose from an encounter between Mr Moss and a prostitute, Ms F, where the prosecution alleged that after consensual sexual intercourse with a condom, Mr Moss threatened Ms F with a pistol and assaulted her, intending to force her to have sex without a condom. The prosecution further alleged that Mr Moss then had sexual intercourse with Ms F without a condom, overcoming her resistance, and subsequently masturbated and touched her buttocks. The appeal was heard by the Full Court of the Supreme Court of South Australia.

The court was required to determine several legal issues. Firstly, whether the trial judge erred in leaving the alternative offence of attempted rape to the jury. Secondly, whether an error in refusing defence counsel permission to cross-examine a prosecution witness on a specific topic rendered the verdicts on attempted rape and indecent assault unsafe. Thirdly, whether the acquittals on assault and rape were inconsistent with the convictions for aggravated assault and indecent assault, thus rendering those convictions unreasonable. Finally, the court considered whether the convictions for aggravated assault and indecent assault were unreasonable in light of criticisms of the prosecution's case and the trial judge's handling of a jury question regarding the indecent assault charge.

The court found that the trial judge had erred in leaving the alternative charge of attempted rape to the jury. The judge's reasoning, based on Ms F's initial complaint to police, was flawed because the complaint was not evidence of the truth of its contents, and the witness had testified that Ms F had complained of being "raped," not "attempted rape." Furthermore, there was no reasonable basis in the evidence to support an alternative verdict of attempted rape, as Ms F's evidence was unequivocal about penetration having occurred, and the defence had not suggested an unsuccessful attempt at intercourse without a condom. The court noted that the prosecution had not presented any basis for a finding of attempted rape other than the possibility of the jury being unsatisfied about penetration, for which no reason was identified.