SUPREME COURT OF QUEENSLAND

Transcription

1 SUPREME COURT OF QUEENSLAND CITATION: PARTIES: R v FQ [2008] QCA 68 R v FQ (appellant) FILE NO/S: CA No 227 of 2007 DC No 200 of 2006 DIVISION: PROCEEDING: ORIGINATING COURT: Court of Appeal Appeal against Conviction DELIVERED ON: 28 March 2008 DELIVERED AT: District Court at Rockhampton Brisbane HEARING DATE: 7 February 2008 JUDGES: ORDER: CATCHWORDS: McMurdo P, Holmes and Muir JJA Separate reasons for each member of the court, each concurring as to the order made Appeal dismissed CRIMINAL LAW APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION APPEAL AND NEW TRIAL IMPROPER ADMISSION OR REJECTION OF EVIDENCE where three written statements from interviews with complainant child were admitted into evidence under s 93A of the Evidence Act where no record of police questions whether trial judge correctly exercised discretion under s 98 and s 130 of the Evidence Act in not excluding statements whether s 93A Evidence Act statements must be of demonstrable unreliability to be excluded under s 98 Evidence Act whether interests of justice favour exclusion of the s 93A statements CRIMINAL LAW APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION APPEAL AND NEW TRIAL PARTICULAR GROUNDS where discrepancies in complainant s account as to details and times of offences where some supporting evidence for complainant s evidence whether open to jury to convict on all the evidence Gately v The Queen (2007) 241 ALR 1; [2007] HCA 55, considered

2 2 COUNSEL: SOLICITORS: R v D [2003] QCA 151, considered R v FAR [1996] 2 Qd R 49; CA No 1 of 1995, 4 August 1995, considered R v Morris; ex parte Attorney-General [1996] 2 Qd R 68; CA No 390 of 1994, 15 March 1995, considered Criminal Code Act 1899 (Qld), s 590AA Evidence Act 1977 (Qld), s 93A, s 98, s 130 B G Devereaux for the appellant A J Edwards for the respondent Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent [1] McMURDO P: I agree with Holmes JA s reasons for dismissing the appeal against conviction. [2] I wish to add some observations, primarily about the exercise of the discretion given under the Evidence Act 1977 (Qld) ( the Act ) to judges to exclude a statement made by a child or intellectually impaired person and admitted in evidence under s 93A of the Act. [3] The discretion under s 98 of the Act is broad in its terms. The s 93A statement may be excluded if for any reason it appears to [the court] to be inexpedient in the interests of justice that the statement should be admitted. Section 130 of the Act also gives a court in a criminal proceeding the broad power to exclude evidence if the court is satisfied that it would be unfair to the person charged to admit that evidence. [4] In a pre-trial application, the primary judge ordered that the complainant's s 93A statements could be tendered at trial. The judge wrongly fettered his broad discretion given in clear terms under the Act by stating that the discretion to exclude the statements should be exercised only if they are in some demonstrable way unreliable. The considerations relevant to the exercise of that discretion will always turn on the circumstances pertaining in each case. The following discussion does not attempt to limit the considerations that may be relevant to a sound exercise of the discretion. [5] Although reliability is often a key factor in the exercise of the discretion, it is not necessary for a court to be satisfied that a s 93A statement is unreliable before excluding it under s 98 or s 130. [6] It is not unusual for statements taken under s 93A from children and intellectually impaired people to be inconsistent, either internally, when compared with their other evidence or when contrasted to independent evidence. Whether such inconsistencies mean that a statement of the child or intellectually impaired person cannot safely be relied upon is often a difficult issue and one with which juries must routinely grapple. The question of reliability is generally best left for the jury to determine after receiving appropriate judicial directions. That said, there may be

3 3 occasions when a s 93A statement is so patently unreliable that it is appropriate to exercise the discretion given under the Act to exclude it from being given as evidence at trial. [7] Sometimes there is no evidence inconsistent with the s 93A statement but nevertheless it may be excluded under the Act because it is taken in circumstances which are so irregular as to make it unfair to the person charged (s 130) or inexpedient in the interests of justice (s 98) to admit the statement. This may, but not must, involve a concern about the reliability of the statement. [8] Public policy issues, most likely concern for the proper administration of criminal justice, may be a consideration warranting the exclusion of a s 93A statement, irrespective of questions of its reliability. [9] The overriding concerns in exercising the discretion to exclude a s 93A statement will always be the interests of justice (the words of s 98) and whether the admission of the statement would jeopardise the accused person s right to a fair trial according to law (the consideration of whether the statement is unfair under s 130). Those concerns must be explored within the existing statutory framework. The legislature in enacting s 93A has intended that evidence from children and intellectually impaired people be treated differently from the evidence of mentally competent adults and that ordinarily statements taken under s 93A should be admitted in evidence. [10] For the reasons given by Holmes JA, in re-exercising the discretion in this case, I am not persuaded that questions of unreliability, the circumstances surrounding the taking of the statements, public policy considerations, or the other matters identified by the appellant s counsel made it inexpedient in the interests of justice or unfair to the appellant to admit the statements. [11] Like Holmes JA, I have watched the complainant s evidence which was prerecorded on 16 October He was by then a 16 year old recalling events as much as 13 years earlier. He was cross-examined at length about the events and about what he told the police in three separate statements taken on three different occasions, each separated by many months, from November 2002 until October Unsurprisingly, he was at times confused and inconsistencies emerged. Sometimes he appeared rather wooden in his responses. At times he seemed to be trying to remember the account in his earlier statements to police as much as the actual events constituting the charges. In the end, I am satisfied that he did his best to give his most accurate evidence of the events. His explanation of the circumstances constituting count 3, unlike his evidence about counts 1 and 2 which also occurred when he was very young, was detailed and plausible. Having reviewed all the evidence, I am satisfied the jury were entitled to accept beyond reasonable doubt his evidence about counts 3 to 7 inclusive and to convict the appellant on those counts. The guilty verdicts were supported by the evidence and were not unreasonable. [12] The appeal should be dismissed. [13] HOLMES JA: The appellant was charged with six counts of sodomy with circumstances of aggravation (that the complainant, S, was under 12 years of age and was his lineal descendant) and one count of maintaining an unlawful sexual

4 4 relationship with circumstances of aggravation (that he sodomised S, who was under 12 years). He was convicted of the maintaining count and of four counts of sodomy, one of which was alleged as occurring between 1 July 1993 and 10 September 1995 (when S was three or four years old) and the others between 8 September 1999 and 31 December 2001 (when S was between 10 and 12 years of age). The remaining two counts, on which the jury was unable to reach a verdict, concerned events said to have occurred between 1 July 1993 and 10 September He appeals on the grounds that three written statements of the complainant were wrongly admitted into evidence and that the verdicts were unreasonable. Relevant legislation [14] Section 93A(1) of the Evidence Act 1 provides for admission of a child s statement: (1) In any proceeding where direct oral evidence of a fact would be admissible, any statement tending to establish that fact, contained in a document, shall, subject to this part, be admissible as evidence of that fact if (a) the maker of the statement was a child or an intellectually impaired person at the time of making the statement and had personal knowledge of the matters dealt with by the statement; and (b) the maker of the statement is available to give evidence in the proceeding. [15] Section 98 of the Act gives the Court a discretion to reject any statement if for any reason it appears to it to be inexpedient in the interests of justice that the statement should be admitted. Section 130 contains a more general power to exclude evidence if the Court is satisfied it would be unfair to the person charged to admit it. The taking of the statements [16] Police officers took the three statements in question on, respectively, 12 November 2002, 12 February 2003 and 24 October 2003; the first two when the complainant S was aged 12 and the third when he had turned 13. The history of how the statements came to be taken begins in August There were complaints about sexual assaults by the appellant on other children. Constable Downey, a police officer, questioned S, then aged 11, in an interview recorded on audiotape and videotape, about his knowledge of any such assaults. In addition she asked him whether he had been sexually assaulted. He denied it; his only complaints of his father were that he had been hit with a belt and wooden stick. Constable Downey asked S if he had seen any other person s rude parts, to which he replied No ; asked whether anyone else had seen his, he answered, only his mother. He also said that he had never touched anyone else s rude parts, nor had anyone touched his. [17] On 9 November 2002, however, S told a social worker, who was assessing where he ought to be placed, that his father (in the social worker s words) tried sex with his backside that involved his Dad putting his penis in his bottom. He said he wanted his father to be in trouble for what he had done to him. Sergeant Newman, a Gladstone police officer, was informed about the conversation and arranged for Constable Downey to re-interview S in November Constable Downey said (Qld)

5 5 that police procedure was to take evidence from a child above the age of 12 (which S now was) in typewritten form, because s 93A at that time extended only to statements made by children under 12 years. She said that in interviewing S, she adopted the same procedure as for any other witness: she asked him questions and, as he answered, used a computer to record his responses in statement form. Her recollection was that she had then read the statement back to him. She had no clear memory of the questions she had asked, although her usual procedure in taking a statement was to ask non-leading questions. [18] On 6 February 2003, Ms Williams, a Family Services Officer who was S s caseworker, contacted Sergeant Newman because the child had indicated he had something to disclose. They went to the foster home where S was living and had what Sergeant Newman described as an informal conversation with him. Sergeant Newman said there were no questions put to S other than asking him to say what he wanted to; Ms Williams recalled Sergeant Newman asking questions which were open-ended rather than leading. After that conversation, arrangements were made for Dr Mawer, a Government Medical Officer, to examine S on 12 February. S reported to her that his father had had anal intercourse with him several times from the time he was ten years old. [19] On the same day Sergeant Newman took a statement from S. He asked him to reiterate what he had said on their previous encounter. S made a series of allegations and Sergeant Newman asked him questions to clarify each. It would have been possible to record the statement, Sergeant Newman said, but he decided against it because S did not like the recording process, and his belief was that for children under 12, all statements had to be tape-recorded, but for children over 12, a typewritten statement was required. Ms Williams was also present. She said that Sergeant Newman typed up the statement as S talked; at the end of each paragraph he would read it to S and ask him whether he wanted to change anything. She did not think there was any disparity between what S had said and what was in the statement. [20] Subsequently, Sergeant Newman said, he was asked by the Director of Public Prosecutions Office to obtain some clarification of the statement; hence the further interview on 24 October Again, Ms Williams attended the interview. The process on this occasion was that Sergeant Newman went through the earlier statement, found those parts which had to be clarified and obtained S s responses which he wrote on a piece of paper. He then typed a statement from those notes. There was some difficulty eliciting the details because S was vague about dates, so they attempted to establish a timeline. According to Ms Williams, a map of the house in which S had lived with his father and stepmother was also obtained on that occasion. She did not recall any leading questions, but she accepted that her recollection might not be perfect. The content of the statements [21] In the first of the statements, made on 12 November 2002, S said that when he was about nine years old he lived with his father, his father s girlfriend, his younger brother and his uncle at an address in Gladstone. He remembered an occasion on a weekend when his father sodomised him in the latter s bedroom. He could recall looking at a clock near the bed and seeing that it was four o clock in the afternoon. His uncle was out, his little brother in the backyard playing. His father s girlfriend was in the process of moving out of the house. After that, he said, his father did the

6 6 same thing every month until he remarried. S recalled another occasion on his eleventh birthday when his younger brother and uncle were in the backyard and he was inside with his father. His father sodomised him and he started to scream. He was told to shut up, but was let go to have a shower. His father had told S that if he revealed what had happened to him, the police would put him (the appellant) in prison. S had, initially, been too afraid to tell Constable Downey what had happened and did not like the cameras and tapes used to record her first conversation with him. [22] In the 12 February 2003 statement, S said that he had told Sergeant Newman and Ms Williams about two other times when, in his words, his father had stuck his dick in my arse like a donkey raper, an expression which he understood to refer to male rape. In this statement, he recalled his father having sex with him before his younger brother was born (that is, when S was about three.) They were living then in Victoria, in a caravan. His father took him from his bunk bed into his own bed, told him to take off his pyjama pants, laid the child on his back with his feet over his father s shoulders and pushed his penis in and out of his anus. There was another occasion when he was between three and four years old and he and his father were living in a low level house in Brisbane. His father took him into his bedroom and donkey raped him in exactly the same fashion. Later that night, the same thing happened again. On neither occasion did his father ejaculate. [23] In the 24 October 2003 statement, S recalled what he said were two more times when the appellant raped him. The first in time was when he was about three years old and was living with his father in Brisbane. His father made him face a wall, knelt behind him, took him by the hips and anally penetrated him with his penis. The later occasion occurred when he was in grade five. The mother of a friend, whose birthday it was, came to the house to ask the appellant if the child could sleep over. After she left, his father took him into his bedroom, told him to take his pants off and sodomised him. The penetration hurt but he did not say anything because his father regularly threatened him with a flogging. His uncle was at work and his younger brother was outside playing. After his father withdrew his penis, he heard him say that the visiting child had arrived. His friend stayed at their house that night. The arguments and ruling as to admissibility of the statements [24] At first instance, defence counsel applied for the exclusion of the statements pursuant to the discretion under s 98, or in the alternative, under s 130, of the Evidence Act. These arguments were made. The nature of the questioning and the interrogation techniques used were important in deciding whether the s 130 discretion should be exercised in favour of exclusion, but it was impossible to assess those matters because the interviews were not recorded and the police officers had no real recollection of the questions asked. The presence of a Family Services Department officer for the interview was also of concern. The jury would be unable to judge reliability because they would not hear the child giving the evidence and would not know what the method of interrogation was; that was unfair. If the statements were excluded, S could still give evidence of the events before the jury, which would then be able to assess his allegations properly. [25] For the Crown, it was emphasised that the statements were made after the complainant had instigated contact with the police. The evidence was that there was no coercion of him or pressure placed on him. The witnesses who took the

7 7 statements were available for cross-examination. There was no compelling suggestion of unreliability which would indicate that the discretion should be exercised in favour of exclusion, and the question of the complainant s reliability was essentially one for the jury. [26] The learned judge who gave the s 590AA 2 ruling canvassed the reasons that the statements were not recorded electronically. The result was, he said, that the interviewing techniques were not entirely known, but there was no evidence of impropriety. The defence would have the opportunity to cross-examine the police officers involved in the interviewing in front of the jury. He went on to express the view that the discretion should be exercised in favour of exclusion only if the statements were in some demonstrable way unreliable. The fact that the statements were written rather than recorded, he continued, went to their weight and was a matter for the jury, subject to direction. He noted that the complainant had initially denied any improper touching by the appellant. Nonetheless, it was not inexpedient for the statements to be admitted, nor was it unfair to the accused. Appellant s submissions - the exercise of the s 98 discretion [27] Counsel for the appellant submitted that the learned judge who heard the pre-trial argument applied too narrow a set of considerations in the exercise of his discretion under s 98 of the Evidence Act, and arrived at the wrong conclusion. He referred to a number of Court of Appeal cases in which the discretion to exclude statements otherwise admissible under s 93A was examined, suggesting that the judge on the s 590AA hearing might, in confining his considerations to reliability, have been unduly influenced by remarks in two of them, R v FAR 3 and R v D. 4 [28] In addition to contending that the judge had too narrowly framed the discretion, counsel for the appellant identified a number of considerations that he said should have been, but were not, taken into account in its exercise. The jury might give undue weight to S s evidence because it was in written form. S had not told the police about the offences at his first opportunity in August 2002 and had given an inadequate explanation for not doing so. The statements were internally inconsistent: in his first statement S had said that the first offence happened when he was nine years old but the later statements described events when he was three or four. There were long delays between the offences and S s statements. The way in which the questions were asked and the statements created was not transparent: the witnesses could not recall the questions and the second statement of February 2003 was a recounting of a conversation as to which no notes were available. Although Newman said that the third statement was taken for purposes of clarification, that statement in fact contained an account of two previously undisclosed offences. Finally, there were repeated, self-serving assertions throughout the statements to the effect that the complainant was telling the truth, which should not have been admitted. [29] Chronologically, the series of cases to which counsel for the appellant referred begins with R v Morris; ex parte Attorney-General. 5 Dowsett J, with whom the other members of the Court agreed, rejected in that case the approach of the trial Criminal Code Act 1899 (Qld). [1996] 2 Qd R 49. [2003] QCA 151. [1996] 2 Qd R 68.

8 8 judge, who had exercised his discretion in favour of the accused on the basis that the complainant had given different versions of events. Discrepancies were, Dowsett J said, to be expected in the case of child witnesses; given that s 93A was designed to avoid the difficulties inherent in extracting cogent evidence from young witnesses in court 6 that kind of difficulty could not logically be a reason for exclusion. He went on to say, however: I do not imply that inherent unreliability may not be a basis for the exercise of the discretion under s 98. Circumstances may arise in which the statement itself appears to be so unreliable, either because of its contents or because of the way in which it was obtained, that it ought not be received in evidence for reasons directly related to the interests of justice. However, that is not the present case. [30] In R v FAR, Davies JA made these observations: The question whether the discretion under ss 98 or 130 of the Evidence Act 1977 should be exercised to exclude a statement otherwise satisfying the requirements of s 93A will almost always turn on its reliability; and there may be many factors, including in some cases an inability to test the reliability of the statement by cross-examination, which may affect that question. Nothing said by his Honour should, in my view, obscure the importance of the reliability of the statement and the possibility that factors other than an inability to cross-examine upon it may affect that question, or over-emphasize the importance of one of many possible factors affecting that question. 7 [31] The discretion was again in question in R v D. Mackenzie J referred to the earlier decisions in considering what level of unreliability would justify exclusion: In a case invoking the propositions from R v FAR and R v Morris: ex parte Attorney-General, the focus would be whether there was such a demonstrated degree of unreliability affecting the s 93A statement as to make it inexpedient in the interests of justice that it should be admitted. Mackenzie J made it clear, however, that the s 98 discretion was a wide one; FAR, rather than setting down any principle of universal application, made the point that the discretion was not to be circumscribed, although in an appropriate case unreliability was often the important factor in its exercise. 8 Similarly, Davies JA in R v D explained that his statement in FAR was not intended to emphasise the importance of reliability but simply to indicate that it was difficult to see other bases for exclusion. 9 [32] The issue in R v D was the way in which the child s statement had come to light. Of those circumstances, Mackenzie J said: Where it is alleged that a statement formally complying with s 93A is unreliable because of events prior to its coming into existence, the particular facts of the case will be critical. Questions of degree will At p 74. At p 61. At para 94. At footnote 5.

9 9 be involved. Not all cases where there is evidence that a leading question or leading questions have been asked of a complainant will necessarily lead to the statement being excluded. Where there are different accounts of how the statement came to be made, especially where one has been made a considerable time after the event, it would be within the fact finder s province to accept one in preference to the other. 10 Conclusions - the s 98 discretion [33] The comments set out above from Morris, FAR and D say no more than that reliability often will be the focus of consideration in deciding how to exercise the discretion; they do not suggest that it is the only consideration. Some care must be taken, too, with the word reliability itself; it may be used in a narrow sense, in reference to the reliability of the evidence to be admitted per se, or more broadly, in reference to general issues affecting reliability. As to the first sense, a statement or statements whose content is manifestly unreliable may well, it seems to me, be more safely and fairly left to a jury than evidence whose reliability is potentially affected by external factors less obvious and less capable of being explored. Hayne J observed in Gately v The Queen 11 that s 93A made a..special rule for children and intellectually impaired persons for the evident purpose of preserving the integrity of the evidence of such persons, by allowing evidence of an account of relevant events that was made before, sometimes well before, the trial of the relevant proceeding. 12 That preservation of the integrity of the evidence, in the sense of maintaining it as a whole, may work for or against an accused; it may, for example, make inconsistencies apparent in a way that selective presentation would not. [34] But s 98 uses a breadth of expression which goes well beyond questions of reliability, extending to exclusion where it appears to the court inexpedient in the interest of justice to admit the material. It would embrace exclusion for reasons of unfairness (which may still, of course, have some bearing on reliability) or public policy. For example, a deliberate choice by investigating police officers not to use available recording facilities in order to impede examination of their interviewing techniques might well provide a basis for exclusion in the interests of justice. [35] In this case, the judge s turn of phrase, demonstrable unreliability, was unfortunate. An accused might fall short of being able to show actual unreliability, yet the circumstances raise real concerns about the way the evidence came into existence, so as to warrant a decision to exclude. As it happens, the learned judge seems to have identified the significant features of concern about the interviewing; but he also seems to have misdirected himself by setting the confines of the discretion too narrowly. That is not to say, however, that the evidence was wrongly admitted. This Court is, perhaps unusually, in as good as position as the trial judge in considering how the discretion ought to have been exercised. No credibility issue arose in relation to the witnesses who gave evidence on the voir dire, and the only At para 104. [2007] HCA 55. At para 104.

10 10 evidence from the complainant, at the time when the question fell to be decided, consisted of the three written statements. Exercising the discretion [36] Addressing in turn the particular concerns raised by counsel, I doubt that there was any great risk of the jury giving undue weight to the statements; they were read in Court and were not taken into the jury room. It was suggested that the allegations might have been more cogent in written form than the witness oral evidence would have been; but it seems to me that they might, equally, have been considerably less compelling. The inconsistencies between the complainant s accounts were entirely typical of the difficulties experienced by young witnesses in recalling and recounting such events. They were not of such an overwhelming kind as to require the statements withdrawal from the jury s consideration; it was undoubtedly capable of assessing the variations. Similarly, the delays between the events and the making of S s statements were relatively unremarkable and appropriately left to the jury to consider. [37] S s explanation in his first statement that he had not initially revealed what happened to him because he was scared and did not like the cameras and tapes, strikes me as a reasonable, not an inadequate, explanation for a boy of 12. The self-serving assertions of truth of which complaint was made consisted of paragraphs in S s second and third statements to similar effect: that he knew the difference between telling truths and telling lies, the second of which could lead to lots of trouble, and was telling the truth. That, it seems to me, was not something going to the exercise of discretion; counsel at trial could have chosen to have had those portions of the statements edited out. The fact that he did not do so suggests that he, probably correctly, did not perceive them as at all likely to sway the jury s considerations. [38] The particular question of why the third statement embarked on new material rather than clarifying the earlier statements (as Sergeant Newman suggested it was intended to) is, as counsel submitted, an aspect of the interviewing which remains unexplained. The third statement begins with S s saying that he had been asked by the police officer to discuss these things again to see if [he] had remembered anything more because [he] told him and [Ms Williams] that [he] would tell them about more things if [he] continued to remember them. In that context it would not be surprising if S, although unable to expand on his earlier statements, volunteered some further events which he had been able, in the interval, to remember. In any event, the difficulty for the appellant is this: the issue was not explored with Sergeant Newman in cross-examination, although it might have been, so it is hard to see why the learned judge should have been particularly troubled by the absence of explanation. [39] The real concern in this case, it seems to me, was the inability to elicit precisely what questions were asked in order to produce the complainant s responses. But given that there was nothing at all to suggest that there was any sinister motive on the part of the police officers, that the failure to record was other than in conformity with ordinary police procedure, or that anyone other than the police officers was involved in questioning, I do not think that concern looms very large. Nor do I think that all the circumstances identified by counsel, taken in combination, were such as to make it inexpedient in the interests of justice that the three statements be admitted. In my view, that evidence was properly placed before the jury.

11 11 The evidence at trial [40] S gave evidence at a pre-recorded hearing where he was cross-examined about his initial failure to complain of his father s abuse and discrepancies between his statements. He was asked why, if he believed his father would be imprisoned if he revealed the assaults, he had not felt it safe to tell anybody what had happened; he said he was afraid of the appellant. He had not disclosed them to Constable Downey when she first questioned him because he felt afraid, was uncomfortable with her as a female officer, and thought anyway that his rude parts were not police business. Later, with the support and encouragement of his foster parents and caseworker he had felt able to discuss what had happened. [41] S was challenged about the fact that in his first statement he had described the incident when he was nine years old as the first time his father had had sex with him, while in the two later statements he referred to an instance when he was as young as three or four. He responded that he had had difficulty remembering when first asked, and must have forgot. Asked why he had told the doctor on 12 February 2003 that his father had intercourse with him from the time he was 10 onwards, without mention of earlier events, he said she had not asked about those. He distinguished her from the police officers who needed the information to charge his father, and in any case, he said, he was confused. He did not know if his anus had ever bled on any of the occasions when his father penetrated him. The incident on his eleventh birthday had occurred when he woke up to go to the toilet and was going back to bed; his brother was sleeping and his uncle was at work (as compared with his earlier account, in his first statement, that they were in back yard). As to the occasion of his friend s birthday, he said that his father had assaulted him before his friend s mother arrived rather than after. On further questioning he was not sure on which occasion he had looked at the clock and seen that it was 4.00 pm. [42] All of the witnesses who had given evidence on the s 590AA hearing were called at trial and gave similar evidence to their earlier accounts. In addition, Dr Mawer gave evidence of her examination of S in February She found that he had a patulous or distensible anus without any scarring, which was consistent with some item having been previously inserted. She had not observed that condition when she had examined him some five months earlier, but that was a cursory and incomplete examination. It did not follow, Dr Mawer accepted, that a patulous anus was necessarily related to sexual abuse or sodomy. [43] Other witnesses for the Crown were Ms D (the accused s former wife), Ms P (the mother of the complainant s friend who had slept at his house) and Mr A (S s uncle ). Ms D said she had seen the appellant use excessive discipline on S, but it had not produced any worse injury than bruising, and S had not complained to her of any sexual impropriety. Ms P recalled an occasion on which her son had slept at the appellant s house, and she was aware of some arguments between S and the appellant. Although she was close to S, he had not made any complaint of sexual assault to her. Similarly, Mr A said that S had made no complaint to him. The appellant did not give evidence. [44] The learned trial judge in his summing up warned the jury that S s credibility was a major area for their concern. He reminded the jury members that S s evidence was given by statements which were not on oath, that they had not had the advantage of

12 12 seeing and hearing him when the statements were made, and they did not know how the information had been obtained. There were significant differences between S s statements and his evidence in cross-examination which could cause them to be hesitant about his accuracy, honesty, reliability and credibility. They should consider whether any acceptable explanation had been provided for the inconsistencies. The appellant s submissions unreasonable verdicts [45] Counsel put forward a number of factors which, he said, should lead to a conclusion that the verdicts were unreasonable. The first was the discrepancy between S s original account, that the first offence occurred when he was nine years old, and his subsequent accounts of earlier events when he was three or four years old, for which his only explanation was that he had forgotten. The second was the fact that despite S s description of the appellant s use of force, which on one occasion had made him scream, he did not notice any bleeding. The third was S s description in the February 2003 statement of the event on his eleventh birthday as happening when his younger brother and uncle were in the backyard and he was inside, compared with what he said in the pre-recorded hearing. The fourth was his admission in the pre-recorded evidence that he found it hard to remember what had happened five years ago and had short memories. The last was the differences between his prerecorded evidence and his earlier account of the incident on his friend s birthday, as to the sequence of events and whether it was on that occasion, or in the incident when he was nine years old, that he saw that it was 4.00 pm. Given that the complainant s evidence was not materially supported by other evidence, all of those factors should have caused the jury to have a reasonable doubt about his truthfulness. Conclusions - the unreasonable verdicts ground [46] The fact that S did not notice any bleeding is, in my view, of little consequence; it is not to say it did not occur. His initial failure to volunteer events from when he was a toddler is not remarkable when one looks at how the statements unfolded. It is clear from their content that after making the first statement about two particular incidents, he put some effort into trying to recall further detail, and after the second promised the police officers that he would tell them anything else he could summon to memory. Clearly the jury members felt unable to reach a conclusion about the first two counts. That may well have been because of doubt about whether S s description of the position adopted of him, as a three year-old lying on his back, having his feet over his father s shoulders could have been accurate. But it does not seem that there was any uniform disbelief of S, because they did not acquit on those counts, and it does not follow that they could not accept what he said about other events. [47] I have watched the pre-recording of S s evidence. It showed, in my view, a sixteen year old of no great intelligence, education or eloquence struggling to follow and respond to what he was being asked. It did not convey any impression of evasiveness or artifice. S s confusion as to some detail and his difficulty in explaining the variations were not of such proportions as to cause any concern about the jury s verdicts. In addition, there was some supporting, although far from conclusive, evidence in the form of Dr Mawer s findings. It seems to me to have been entirely open to the jury to find S s account of the later assaults credible and reliable so as to be satisfied beyond reasonable doubt of the appellant s guilt.

13 13 [48] I would dismiss the appeal. [49] MUIR JA: I agree with the reasons of Holmes JA and the order she proposes.