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District Court 27 October 2025

R v Moore

[2025] NSWDC 436

Sexual offences
CRIMINAL PROCEDURE TRIAL TRIAL ON NEW INDICTMENT STAY OF PROCEEDINGS PERMANENT

Citation: R v Moore [2025] NSWDC 436
Court: District Court of New South Wales
Date: 27 October 2025
Judge: Everson SC DCJ

Background

The accused stood trial in February 2024 on two counts of sexual offences against the same cognitively impaired male child. The first count related to conduct alleged to have occurred at Oxley Vale between October 2019 and June 2021, and the second to an alleged offence at Coonabarabran in January 2022. That trial was aborted when the jury was discharged before the Crown closed its case.

A second trial commenced in November 2024. The jury acquitted the accused on the first count but could not reach either a unanimous or majority verdict on the second count, and was discharged. The second count was therefore listed for a third trial, due to commence on 27 October 2025 in Tamworth.

Before the third trial began, the accused filed a Notice of Motion seeking a permanent stay of proceedings. In the alternative, the accused sought an order that the trial proceed before a judge alone, without a jury, under section 132 of the Criminal Procedure Act 1986 (NSW).

  • Whether the loss of a so-called Markuleski direction, caused by the acquittal on the first count, constituted a fundamental defect warranting a permanent stay of the third trial.
  • Whether the continuation of proceedings in those circumstances would involve unacceptable injustice or unfairness to the accused.
  • Whether the trial should instead proceed before a judge sitting without a jury.

Decision

The central argument for the stay was that the accused would be deprived of a Markuleski direction at the third trial. A Markuleski direction (derived from R v Markuleski (2001) 52 NSWLR 82) instructs a jury that any reasonable doubt about a complainant's evidence on one count must be taken into account when assessing the complainant's credibility generally across all counts. Because the acquittal on count one removed that count from the third trial, the accused could no longer benefit from such a direction.

Everson SC DCJ applied the foundational principles governing permanent stays set out in Barton v The Queen, Jago v District Court of New South Wales, and Williams v Spautz. An accused person is not entitled to immunity from prosecution unless they can demonstrate a fundamental defect going to the root of the trial, one that no trial judge could remedy by anything done in the conduct of the trial itself.

The court placed significant weight on Director of Public Prosecutions (NSW) v Browne [2018] NSWCCA 188, where the Court of Criminal Appeal overturned a permanent stay granted in materially similar circumstances. In that case, Gleeson JA held that the absence of a Markuleski direction in a subsequent trial was not a fundamental defect amounting to unacceptable injustice. His Honour also relied on the warning in Markuleski itself by Wood CJ at CL that different verdicts do not inevitably demonstrate a want of credibility in the complainant, and that an acquittal is not a positive finding that the alleged act did not occur.

Everson SC DCJ concluded that while the accused faced a difficult forensic position at the third trial, difficult forensic choices do not render continuation of criminal proceedings unfair. The accused had lost the chance of doing better at trial, not the certainty of a better outcome. Balancing that lost chance against the community's right to have persons charged with serious offences brought to trial, the court refused the stay. The application for trial by judge alone was then listed to be heard separately.

Orders Made

  • The application for a permanent stay of proceedings was refused.

Key Takeaways

  • The District Court confirmed that the absence of a Markuleski direction in a re-trial, caused by an acquittal on an earlier related count, does not by itself constitute a fundamental defect warranting a permanent stay of proceedings.
  • A permanent stay requires the accused to demonstrate a defect so fundamental that nothing a trial judge could do in the conduct of the trial would relieve against its unfair consequences; difficult forensic choices do not meet that threshold.
  • Following DPP (NSW) v Browne, the loss of a potential forensic advantage through acquittal on a related count represents the loss of a chance of a better outcome, not the certainty of one, and that distinction is critical to the stay analysis.
  • Under principles affirmed in Williams v Spautz, courts must exercise rather than refuse their jurisdiction to try persons charged with criminal offences, and accused persons do not obtain an immunity from prosecution simply because their position at a subsequent trial is less advantageous.
  • An acquittal on one count, as Wood CJ at CL cautioned in Markuleski, is not a positive finding that the alleged act did not occur or that the complainant's evidence was rejected as untruthful.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 132

Cases
- R v Markuleski (2001) 52 NSWLR 82
- Director of Public Prosecutions (NSW) v Browne [2018] NSWCCA 188
- Kibby v R [2024] NSWCCA 207
- Abdallah v R [2019] NSWCCA 294
- Williams v Spautz (1992) 174 CLR 509
- Barton v The Queen (1980) 147 CLR 75
- Jago v District Court of New South Wales (1989) 168 CLR 23
- R v Glennon (1992) 173 CLR 592