R v Moore

File Number(s): 2022/00032429

Publication restriction: Pursuant to s 15A of the Children (Criminal Proceedings Act) 1987 (NSW) there is to be no publication of the name of or any information that identifies or is likely to lead to the identification of the complainant.

JUDGMENT

1. On 26 February 2024, Darryl Moore stood trial on an indictment containing two counts, each of which alleged an offence against the same complainant.

2. The 1st count alleged that on a day between 18 October 2019 and 8 June 2021 at Oxley Vale, the accused intentionally carried out a sexual act towards a cognitively impaired male child who was aged between 10 and 16 years.

3. The 2nd count alleged that on a day in January 2022 at Coonabarabran, the accused had sexual intercourse with a cognitively impaired male child who was aged between 10 and 14 years. The complainant in the first count and the complainant in the second count are one and the same person.

4. That trial did not conclude as the jury was discharged before the close of the Crown case.

5. On 18 November 2024, the accused was again called to trial on the same indictment presented against him on 26 February 2024. On 27 November 2024, the jury returned a verdict of not guilty on the 1st count. The following day the jury indicated they were unable to reach a unanimous verdict on the 2nd count. Nor were they subsequently able to reach a majority verdict. The jury was thereafter discharged without rendering a verdict on the 2nd count.

6. The trial of the accused on that now single count indictment was subsequently listed to commence today, 27 October 2025, during the current sittings of this court at Tamworth.

7. On 15 October 2025, the solicitor for the accused filed a Notice of Motion seeking an order permanently staying the proceedings the subject of the trial due to commence today. In the alternative, the accused seeks an order that the trial be conducted by judge sitting without a jury pursuant to section 132 of the Criminal Procedure Act 1986 (NSW).

The Application for a Permanent Stay of Proceedings

8. The key plank of the accused’s argument for a permanent stay of proceedings is that he will not have available to him the benefit of a Markuleski direction and will be faced with incurable unfair prejudice arising from its absence. The phrase 'Markuleski direction’ is a reference to the judgment of Spigelman CJ in R v Markuleski (2001) 52 NSWLR 82 where his Honour referred (at [184-185]) to the recurring difficulty faced by a jury in the process of weighing evidence, as demonstrated in the case law on inconsistent verdicts, particularly in the context of sexual assault cases. The solution proposed by his Honour was for the trial judge to assist the jury by drawing its attention to certain matters, even matters which would be regarded by many to be obvious. His Honour went on to state (at [185-191]):

“It may appear to be obvious that a reasonable doubt about one aspect of a complainant’s evidence ought to be taken into account when assessing that witness’s evidence on other matters. However, there have been a significant number of cases in which courts of criminal appeal have acted on the basis that the jury may have failed to do so.

In the light of the number of cases it is desirable that the traditional direction as to treating each count separately is supplemented in a word against word case. Some reference ought to be made to the effect upon the assessment of the credibility of a complainant if the jury finds itself unable to accept the complainant’s evidence with respect to any count.

Some form of direction assisting the jury in this respect should be given [ … ] as a general rule. [ … ] It is not necessary to specify any precise words for such a direction. That will depend on the circumstances of the case.

It will often be appropriate to direct a jury that where they entertain a reasonable doubt concerning the truthfulness or reliability of a complainant’s evidence in relation to one or more counts, that must be taken into account in assessing the truthfulness or reliability of the complainant’s evidence generally.

On other occasions it may be appropriate for a judge to indicate to the jury, whilst making it clear that it remains a matter for the jury, that it might think that there was nothing to distinguish the evidence of the complainant on one count from his or her evidence on another count. Or it may be appropriate to indicate that, if the jury has a reasonable doubt about the complainant’s credibility in relation to one count, it might believe it difficult to see how the evidence of the complainant could be accepted in relation to other counts.

The precise terminology must remain a matter for the trial judge in all the particular circumstances of the specific case. The crucial matter is to indicate to the jury that any doubt they may form with respect to one aspect of the complainant’s evidence, ought be considered by them when assessing the overall credibility of the complainant and, therefore, when deciding whether or not there was a reasonable doubt about the complainant’s evidence with respect to other counts.”

9. I accept that in the November 2024 trial of the accused a Markuleski direction was appropriately given and was applied by the jury in its consideration of the 1st count on which the jury returned a verdict of not guilty on the 2nd count on which they were unable to agree on a verdict.

10. It is submitted on behalf of the accused that the continuation of the proceedings by way of a third trial would involve unacceptable injustice or unfairness.

11. That submission is based on the proposition that the accused is now in a position where he has lost the benefit of a Markuleski direction by reason of the acquittal on the charge that was the 1st count. Counsel for the accused argues that to place that evidence back before a jury only serves to unfairly prejudice the accused.

12. In considering that submission I have also had regard to the cautionary note by Wood CJ at CL in R v Markuleski (at [219]-[221]). His Honour warned against too readily assuming that a difference between the verdicts returned by a jury inevitably demonstrates a want of credibility in the complainant and observed that the occurrence of different verdicts is entirely to be expected and is understandable. His Honour also noted that an acquittal does not amount to a positive finding that the act alleged did not occur, or that the evidence of the complainant was rejected as a lie or as lacking in credibility.

Fundamental Principles About Stays of Proceedings

13. The determination of this application for a permanent stay of proceedings demands an application of well-settled principles.

14. In Williams v Spautz (1992) 174 CLR 509 Mason CJ, Dawson, Toohey and McHugh JJ said at [519]:

“It is of fundamental importance that, where the interests of justice demand it, courts should exercise rather than refuse to exercise, their jurisdiction, especially their jurisdiction to try persons charged with criminal offences. Persons charged with such offences should not obtain an immunity from prosecution*.”*

15. An accused person charged with a serious indictable offence does not get an immunity from prosecution unless they prove that there is a fundamental defect which goes to the root of their intended trial, that is of such a nature, that nothing that a trial Judge can do, in the conduct of the trial, can relieve against its unfair consequences.

16. That much is clear from what was originally said in Barton v The Queen (1980) 147 CLR 75 per Wilson J at [111], and stamped with authoritative approval in Jago v District Court of New South Wales (1989) 168 CLR 23 per Mason CJ at [34] and Gaudron J at [75]; and in R v Glennon (1992) 173 CLR 592 per Mason CJ and Toohey J at [605].

17. In the present case, the Crown does not propose seeking to adduce evidence relating to the acquitted count as either context or tendency evidence. Similarly, counsel for the accused has eschewed the notion of cross-examining the complainant on the allegation the subject of the acquitted count. He submits that the accused is in an intractable position of unfairness because he does not wish to introduce evidence of previous complaint for which the accused received an acquittal in the hope of causing some attack on the complainant’s credibility.

18. In Kibby v R [2024] NSWCCA 207, Hamill J (with whom Davies and Rigg JJ agreed) stated at [43]:

“There are forensic and legal challenges in conducting a re-trial following an acquittal on one or more of multiple counts. That is because the acquittal “may not be questioned or called into question by any evidence which, if accepted, would overturn or tend to overturn the verdict”.” [cited authorities omitted]

19. I note there is a line of authority for parties to agree to adduce such evidence in a manner that is compatible with the incontrovertibility of an acquittal principle. For present purposes, I make reference to Abdallah v R [2019] NSWCCA 294.

The Decision in DPP v Browne

20. On the hearing of this application for a permanent stay of proceedings, both parties rely on the case of Director of Public Prosecutions (NSW) v Browne [2018] NSWCCA 188. I say both parties have relied on it, although counsel for the accused seeks to distinguish the case.

21. At first instance, the trial judge granted the permanent stay of proceedings sought by the accused Browne. The learned trial Judge held:

“I am satisfied that there is a fundamental defect in any new trial which goes to the root of the trial. Specifically, there will be no evidence before the jury in any new trial in relation to counts 2 and 3, that is, those counts in respect of which the accused was acquitted. Ordinarily, the accused would be entitled to a Markuleski direction so that the trial judge would direct the jury that a reasonable doubt with respect to the complainant’s evidence on any count ought to be taken into account in its assessment of the complainant’s credibility generally, when deciding whether or not there is a reasonable doubt about the complainant’s evidence with respect to other counts: see R v Markuleski [(2001) 52 NSWLR 82]; [2001] NSWCCA 290. In any new trial the accused is deprived of the benefit of a Markuleski direction.”

22. The Director of Public Prosecutions successfully appealed the order staying the proceedings against Mr Browne. Gleeson JA (with whom Walton and Fagan JJ agreed) referred to the earlier mentioned warning issued by Wood CJ at CL in R v Markuleski and stated (at [49] and [51]):

“The respondent’s argument that a new trial would involve unfairness because the not guilty verdicts returned at the second trial inevitably demonstrate a want of credibility in the complainant, should not be accepted…

In my view, the primary judge erred in finding that the absence of the benefit of a Markuleski direction in relation to original counts 2 and 3 would be a fundamental defect in any third trial in the sense of involving unacceptable injustice or unfairness to the respondent.”

23. That the accused Moore may face a difficult forensic choice on a third trial does not mean that the continuation of the criminal proceedings is unfair. That type of forensic decision would have arisen for him had the Crown presented two indictments separately charging the Oxley Vale offence from the Coonabarabran offence.

24. What the accused Moore has lost is the chance that he may have been able to do better; he has not lost the certainty that he would have done better. In those circumstances, I do not accept that the case is of such an extreme nature as to warrant the grant of a stay. In balancing the accused’s lost chance against the right of the community to expect that persons charged with serious offences are brought to trial, the answer in my opinion must be that the trial should proceed.

25. Accordingly, the application for a permanent stay is refused.

26. The Court will now hear the application for the trial to proceed before a judge sitting without a jury.

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