The Queen v H[1997] QCA 192

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 97 of 1997

Brisbane

[R v H]

THE QUEEN

v

H

Appellant

McPherson JA

de Jersey J

Dowsett J

Judgment delivered 1 July 1997

Separate reasons for judgment of each member of the Court each concurring as to the order made.

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE ALLOWED TO THE EXTENT OF SUBSTITUTING, FOR THE 5 YEAR TERMS OF IMPRISONMENT IMPOSED WITH RESPECT TO EACH OF COUNTS 2 AND 3, A TERM OF 2 YEARS IN EACH CASE, TO BE SERVED CONCURRENTLY AS BETWEEN THEMSELVES AND CONCURRENTLY WITH THE 5 YEAR TERM IMPOSED IN RESPECT OF COUNT 1.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 1 July 1997

The appeal against conviction should be dismissed.  The application for leave to appeal against sentence should be allowed to the extent stated in the reasons of de Jersey J.

I agree with the reasons for judgment of de Jersey J. and also of Dowsett J.

REASONS FOR JUDGMENT - de JERSEY J

Judgment delivered 1 July 1997

The appellant was convicted of the sodomy of a boy under 12 years while in his care, and on two counts of indecently dealing with the same child.  The sodomy took place on 1 July 1996, and the indecent dealing within the first half of 1996.  At the time of the offences, the appellant was aged about 30 years, and the complainant about 11 years old.  The appellant was sentenced to 5 years imprisonment on each count, to be served concurrently.

It will facilitate an examination of the grounds of appeal if I first recapitulate in summary form the evidence given at the trial.

The complainant (E) met the appellant in about mid-March 1996.  Thereafter, the complainant visited the appellant regularly.  After a while he would often stay the night.  According to the appellant's evidence, the complainant stayed overnight almost every Friday and Saturday.

The complainant's mother, S, went to hospital on 20 June 1996 for 8 days.  During that time, the complainant stayed with the appellant.  The appellant's evidence was that the complainant stayed with him for a "straight period of 10 days" during the school holidays in June 1996.

The complainant's mother said that she tried stopping her son from going to the appellant's home, but that she "got backlash from E all the time".  About two weeks before going to hospital she received a phone call from someone saying the appellant was a "child abuser".  She said that following that call, she continuously asked E if anything had gone wrong, and E said nothing was wrong.  The complainant's father, B, agreed that over many months he asked E whether he was being sexually molested or abused and that each time E said "no".

The sodomy allegedly occurred on or about 1 July 1996.

On 3 July 1996, E complained to his father that after going to the toilet, there was blood on the toilet paper.  The father said to him that he may have broken a blood vessel and there was probably nothing to worry about.  E said, "okay".

On the morning of 5 July 1996, the appellant arrived at E’s home to take him out, but according to the father's evidence, E did not want to go.  The appellant left saying that he would be back for E at 3.00 pm.

According to the father's evidence, after the appellant left, the complainant told him that the rumours about H being a child molester were true, "because he done it to me"; and that the appellant "stuck his willy in E’s bum", and he also mentioned oral sex.

Apparently after refreshing his memory from a statement he made on 6 July 1996, B continued giving evidence of the complaint made by his son on 5 July.  It was to this further effect.

E said that one day while he was walking to the appellant's place he found a small gas cylinder bottle.  When he got to the appellant's place, he showed it to the appellant who said, "Oh, that'd be perfect to fit in your bum".  The complainant's father said,"... there was mention of oral sex, that H put his willy in E’s mouth and vice versa, that he made him do it".  The appellant told E that if he told anyone what was going on, the appellant would "get him and he'd shoot mummy and dad and grandma".  The complainant said that the appellant had "stuck the gas bottle into his backside".  He also said that the appellant had given him "alcohol and pot, marijuana".

The appellant returned to the complainant's home at 3.00 pm.  The boy's father accused him of sodomising his son and struck him in the mouth.  The appellant denied the allegation.  The father then said, "What about the gas bottle you were supposed to have stuck in my boy's bum?"  The appellant said that he was "only joking".  The father said, "Well, it's a bit of a cruel joke", and hit the appellant again.  At the trial, the appellant admitted the conversation with the complainant's father concerning the gas bottle.

The complainant was then taken to the doctor and the police were called.  The following day, 6 July 1996 Constable Elliott from the Townsville Juvenile Aid Bureau visited the complainant's home.  According to the father, prior to the arrival of the police, he told his son:

"When the Police come, tell them the truth, tell them what happened and you'll be okay."

However, when the police came, the boy "clammed up", as it was put in evidence.  The tape recording of this conversation between Constable Elliott and the complainant was admitted under s. 93A of the Evidence Act.

After that, according to S, B was very angry and emotional.  During the afternoon of 6 July 1996, B urged his son to speak to the police, saying: "You've got to talk to someone mate, or it's going to eat you up inside".  There was continual conversation between the complainant and his father.  B agreed that E would have seen him "continuously crying, angry, upset".  Finally, the daughter N (who would then have been 12 years old and had herself been the subject of sexual abuse) was brought into the conversation, and E agreed to speak to the police.  By this stage, it was late in the afternoon of Sunday 7 July.  B said that they had spent most of the day in the bedroom talking about it.  B agreed that he "... went over and over with him about the allegations".  In re‑examination, B said that all he had done was to encourage his son to speak to the police.  The complainant's evidence concerning discussions with his father was that on the Saturday afternoon, he spent about half an hour talking to him.  That night, they discussed it "very rarely" and on the Sunday he could not recall talking about it at all.

On 9 July 1996, the complainant was taken from his home to the Townsville Juvenile Aid Bureau, where a video taped interview was conducted.  The video tape was admitted into evidence.  At that interview, the complainant made allegations against the appellant sufficient, if accepted, to warrant the convictions.  (I will return to the content of the two interviews.)

After that interview, the complainant was taken on 9 July for medical examination by Dr Shellshear.  The doctor discovered an area of redness extending out from the anus.  The redness was most marked close to the anal orifice.  The anal dilatation sign was negative.  There was an absence of rugae in the area where it might normally be found.  There was no fissure.  Dr Shellshear expressed the opinion that the redness indicated that there had been local injury.  It would be consistent with a fissure, once present, having healed.  He said that:

"The signs were consistent with a force pushing in from the outside in preference to say constipation, which tends to produce a tear but not have areas of redness spreading to the outside."

The complainant gave brief evidence‑in‑chief.  He said that what he told Detective Sergeant Graham in the interview on 9 July 1996 was the truth.  Under cross‑examination, he described the occasion on which he had been sodomised, the test tube incident, and the gas bottle incident.  A gas bottle of similar appearance was tendered.  He could not however remember when that incident occurred, although he was able to say that it occurred in the appellant's bedroom.  It also emerged in cross‑examination that the complainant had been told that the appellant had molested a 2 year old child and had gone to gaol for 7 years.  Those matters were specifically denied by the appellant when he gave evidence.

When giving evidence, the appellant denied committing any of the offence.  He said he did not own a test tube.  As to the gas bottle, he said that the complainant did show him the rusty gas bottle he had found.  The complainant played with it on his bed, and because it left rust deposits on the doona, the appellant told him to get rid of it.  After numerous attempts to have him dispose of it, the appellant said to the complainant, "Look, get rid of it or I will shove the bloody thing up your arse".

The first ground of appeal challenges the learned trial's decision, following a voir dire, to admit evidence of the interviews conducted on 6 and 9 July 1996 under s. 93A of the Evidence Act.  The ground is cast in these terms, which I reproduce because they conveniently summarise the appellant's essential contention:

"The learned trial judge erred in the exercise of his discretion in permitting evidence of the child complainant to be given pursuant to section 93 of the Evidence Act 1977 when it was inexpedient in the interest of justice to so admit such evidence having regard to the following factors:

a)when initially interviewed by the police on 6 July 1996 the child had been unwilling or unable to provide any evidence against the accused;

b)subsequently the child was subjected to constant pressure by his father and to pressure from his sister;

c)the child clearly believed that it was already an established fact that the accused was a 'convicted child molester';

d)the statement made by the child complainant on 9 July 1996 was made under the influence of such pressures and beliefs."

When expressing his ruling, the judge described, as the essence of the defence contention, that

"the statements made by the complainant were, in effect, contaminated or induced by reason of pressure being applied to the child to make a complaint of some sort against the accused."

While he conceded that to be an "arguable possibility", he said there might equally possibly be "innocent reasons" for the fact that the complaint was first made to the police on 9 July.  He concluded as follows:

"I am unable to conclude that this is a case in which the statement appears to be so unreliable by reason of the way in which it was obtained or because of its contents, that it ought not to be received as evidence for reasons related to the interests of justice.

Indeed, I consider that the matters raised are matters for the consideration of the jury, and I am in fact satisfied in this case that it would not be contrary to the interests of justice to have the statement admitted."

Mr Rafter, who appeared for the appellant, emphasised that on a number of occasions the complainant had denied abuse when questioned by his parents; knowing of the allegation that the appellant was a child molester, he complained to his father on 5 July 1996 about the instant charges; yet when questioned by the police on 6 July, he was unresponsive, the response on 9 July following considerable pressure from his family.  Mr Rafter submitted that there was therefore substantial risk that the allegations he made when questioned on 9 July were unreliable (cf. R v F A R [1996] 2 Qd.R. 49, 61), so that the interview should have been excluded from the evidence because to admit it was either inexpedient in the interests of justice (s. 98) or unfair to the appellant (s. 130).  Reference was made, by way of broader analogy, to my exclusion of evidence virtually "coerced" out of a prospective Crown witness, an adult, in R v Falzon [1990] 2 Qd.R 436.

Under this ground, we are asked to review the exercise of the learned judge's discretion, so that the principles in House v R (1936 ) 55 CLR 499 apply.  I am not satisfied that the discretion miscarried, such as would warrant this court's interference.

There was force in the approach taken for the defence, and the judge rightly recognised that.  But there were other relevant considerations.  Most significant, to my mind, was the complainant's complaint to his father on 5 July before the first police interview.  That complaint was not provoked by any pressure from the parents, and seems to have been prompted by the immediate prospect of his being left alone with the appellant.  It is of course significant that it followed many denials, and was made in context of the rumour that the appellant was a child molester.  But the consistency of that complaint to the father on 5 July, with the material later put forward to the police on 9 July, and the circumstance that it was not prompted by the parents, did in my view give it considerable potential weight.

Why one asks, if these allegations were true, did the complainant fail to repeat them when interviewed by the police on 6 July, and make them on 9 July only following considerable urging from his family?  A most compelling possible explanation is simply reticence on this young boy's part about speaking of such obviously difficult matters.  Concluding also - as one reasonably may - that the evidence does not disclose "coaching", but rather encouragement to overcome reticence, it cannot in my view be said that the judge's discretion miscarried.  It was to deal with situations like this that s. 93A was enacted.  The account given by the complainant was not so plainly unreliable as to warrant the conclusion that the exercise of discretion to admit the evidence miscarried.

The second ground of appeal is in these terms:

"The learned trial judge erred at law and in the exercise of his discretion in failing to discharge the jury and adjourn the trial consequent upon subjective newspaper reporting of the trial."

During the trial, on 20 February 1997, the local Townsville newspaper published a report of the proceedings under the heading, "Boy's account of sex assaults disgusts jury".  The first two paragraphs of the article read:

"Jurors reacted in disgust as they watched a video tope of an 11-year-old boy telling how he was sexually assaulted by an adult friend.

The jurors looked at the television screen, glanced at the typed transcript and then gazed at the accused man who sat slouched in the dock taking notes in Townsville District Court yesterday."

There were other articles about sex offenders elsewhere (earlier) in the newspaper.

Defence counsel sought the discharge of the jury.  The learned judge apparently carefully considered the matter, and while declining to discharge the jury, immediately gave the jury a substantial and strong direction on the importance of their disregarding out of court publicity and confining their deliberations to the evidence.

To succeed on this ground of appeal, the appellant would have to establish that the failure to discharge the jury resulted in a miscarriage of justice:  R v Thompson [1983] 1 Qd.R. 224, 227, per McPherson J.  See also R. v. Glennon (1992) 173 CLR 592.  In reviewing such discretionary judgment by a trial judge, appellate courts properly recognise the special advantage enjoyed by the judge: Murphy v The Queen (1989) 167 CLR 94 at 101.

There is no reason to conclude that this exercise of his Honour's discretion miscarried.

The next two grounds concern the learned judge's having left for the jury's consideration, as possible corroboration, the evidence of Dr Shellshear concerning an area of redness extending from the complainant's anus (in respect of count 1, sodomy) and the evidence of the appellant's statement about inserting the gas cylinder into the complainant's rectum (in respect of count 3, the relevant count of indecency).

The potentially corroborative role of medical evidence of this general character was comprehensively examined in R v Kerim [1988] 1 Qd.R. 426 and more recently in R v M [1995] 1 Qd.R. 213.  As indicated in M, where the circumstances of the case are such that independent confirmation of part of a complainant's evidence relating to one element of the alleged offence, may be seen to increase the likelihood that other parts of his evidence are true, the independent evidence providing that confirmation is potentially corroborative.  Davies JA (p. 221), with whom McPherson JA agreed, also said that "the question must always be whether or not, in the context of the particular case, the evidence reduces the danger that the complainant's allegation is fabricated".

As to count 1, Mr Rafter submitted that the evidence of Dr Shellshear was neutral, especially because the anal dilatation test was negative - suggesting there had not been recent pervasive dilatation.  I note however that the doctor said that the feature "did not rule out the possibility of sexual interference", and he explained why.

In my view the evidence of the doctor was potentially corroborative, simply because of his conclusion that the area of redness was "consistent with a force pushing in from the outside in preference to say constipation, which tends to produce a tear but not have areas of redness spreading to the outside".  The doctor gave other evidence excluding other possible explanations for the redness.

As to the evidence of the appellant's statement concerning the gas cylinder - ruled potentially corroborative with relation to the relevant indecency count, count 3 (attempted insertion of a gas bottle into the complainant's anus), the judge asked the jury "to exercise some degree of caution before using it" as corroboration.  As the reason for that caution, he reminded the jury that "the allegation by the Crown is that the accused did certain things with the bottle, not that he threatened to do so".  The evidence was left as potential corroboration because the jury could view it - as the Crown urged - as "a limited concession by the accused that renders more probable the complainant's account that the particular incident ... in fact occurred".

Mr Rafter's submission focussed on the appellant's claim that he was only joking when he made the statement.  But having heard the appellant and other witnesses - other than the complainant, give their evidence, the jury was entitled to reject that claim.  If one excluded the innocent explanation for the statement - as the jury was entitled to do - the acknowledgment of a conversation linking the gas bottle with the complainant's anus made the complainant's allegation about that conversation, and therefore the event involving the use of the gas bottle, more likely to have been true.  It therefore cannot be said, as was submitted, that the evidence was "intractably neutral" (cf. R v Kerim, supra, p. 447).  The evidence satisfied the test explained in M and was therefore in my view properly left to the jury as potentially corroborative.

The remaining ground of appeal is that the three convictions are unsafe and should for that reason be quashed.  The notice of appeal contains comprehensive particulars of the ground with relation to each count.

As to count 1 (sodomy), the conviction is said to be unsafe because of the following matters:

"a)the complainant had, on numerous occasions earlier than the date of his complaint, both denied that he was being sexually assaulted by the accused and expressed a clear desire to be in the company and care of the accused;

b)the nature and extent of the child's complaint to his father on 5 July 1996 must be regarded as doubtful given the father's illicit drug use and dependency;

c)the child's complaint was in the context of a belief (wrongly held) that the accused was a convicted child molester and had served 7 years imprisonment;

d)when interviewed by Constable Gillespie on 6 July 1996 the child was unable or unwilling to make any statement implicating the accused;

e)the child was then subjected to pressure and influence by especially his father and sister for at least a period of 24 hours, which included pressure and influence sufficient to ensure that the child did not inform the police of his father's drug use and dependency;

f)numerous inconsistencies existed between the child's evidence given in his statement of 9 July 1996 and other evidence available at the trial including:

-the child's description of where and when the offence occurred;

-whether or not violence was used;

-the child's statement that the offence was occurring '6 times a night' and extending over some weeks or months contrasted with the evidence of Dr Shellshear that there was no evidence of recent pervasive dilatation of the child's anus;

g)the child's physical description of the event, namely that he was sodomised while his legs were straight and held together;

h)other evidence was more in the nature of fantasy or at least inexplicable including:

-the child's statement that he was fed alcohol 'to be kept awake';

-the child's statement that he was regularly struck or assaulted 'to be woken up for breakfast';

-the child's statement that the house in which the appellant was residing had 'trip-wires and bombs' guarding internal doors;

i)the evidence that, on 31 October 1996 the complainant's father B, told the accused that the complaints were false;

j)the witness Hansen observed nothing occurring at the house;

k)the accused gave evidence."

In relation to count 2 (indecency - insertion of test tube), the appellant relies on the absence of corroboration, and the absence of evidence of fresh complaint.  On count 3 (indecency - attempt to insert gas bottle), these particulars are given:

"(a)the absence of any fresh complaint;

2. when complaint was made on 5 July 1996 it was merely to the effect that there had been a threat to insert a gas bottle into the child's anus;

3. when interviewed on 9 July 1996 the child seems to have repeated that statement but then altered it to an attempt to insert a gas bottle into his anus;

4. the child explained the event as not continuing because the gas bottle (much smaller than a male penis) 'would not fit';

5. on 9 July 1996 the child said that this event was the first sexual assault which occurred but at trial said (for the first time) that an incident of masturbation or fondling was the first event to occur."

I have considered the evidence relating to these matters.  The submission made orally in court, and in the written material, on this ground retraced much of the detail of the grounds covered earlier in this judgment.  The question now to be considered is whether a reasonable jury should (not could) have convicted the appellant: Morris v R (1987) 163 CLR 454, 461-2, 472-4, 478-9.

Before going further, I wish to make some additional observations about the two police interviews, because they featured prominently in the oral argument before the court.

It is right to say that during the first interview on 6 July the complainant was, on relevant matters, totally unresponsive.  An interviewing police officer and (it appears) the complainant's parents were present.

It is perhaps trite to note that police officers have to tread a very fine line in interviews like this.  On the one hand, they must try to render comfortable and communicative, an ordinarily and reticent and often extremely embarrassed child.  On the other hand, they must as far as possible, avoid leading the material from the child, through impermissible suggestion.

In this first interview, after covering preliminary matters designed to make the complainant feel relaxed, the police officer introduced the relevant subject by speaking generally of the fact that some children have "problems" which "could mean that someone is doing something to them that they don't like".  Shortly after that, the police officer said, with relation to the complainant, that "from the sound of it it shouldn't really be happening".  On one view, that trespassed beyond the limits, because of an assumption that the allegation, as relayed earlier by the parents, was true.  A little later, repeating that assumption, one of the parents said, "Do you feel like telling Glenn some of the things that have happened?"

When the complainant did not respond, the police officer applied a degree of pressure, speaking of the need to stop people doing such things.  One of the parents then increased that level of pressure, mentioning the appellant's alleged threat to shoot the parents if the complainant made disclosure.  The police officer spoke again of the need to stop people doing such things, and of the need to counter such threats.  The complainant remained unresponsive.

Now one should not be unduly critical, of course, and one must acknowledge the difficulty and sensitivity of such situations.  But it was obviously unfortunate that the parent made reference to the threat.  In the result, however, since the complainant made no positive allegations in this interview, one need not consider further the question of its usefulness in an evidentiary sense taken alone, sense, although Mr Rafter submitted that the features "polluting" this interview carried over into the second, a matter to which I will briefly return.

At the second interview, the complainant was responsive, and as I have said, made allegations sufficient, if accepted, to justify the convictions.  This apparently followed extensive discussion within the family, a feature which the appellant now emphasises.  Mr Rafter pointed out that the complainant's father's influence may be discerned from passages like this one in the second interview:

"Q:Now, I've spoken to your father in relation to something he said that you wanted to speak to me.  Right?  Do you know what it is that - that you wanted to speak to me about?-- Yeah, about this man.

Q:What man's that?--  H.

Q:And who's H?-- He's the man that molested me.

Q:When you say the man that molested you, what do you mean by that?-- I dunno - he touched me in an indecent way.

Q:Touched you in an indecent way.  Can you tell me what an indecent way is, E?--  I dunno."

The complainant gave evidence at the trial confirming that his father had explained the meaning of those terms before the second interview.  I set out the complainant's relevant evidence (while under cross-­examination):

"MR FELLOWS:  E, if there is any question that I ask you that you don't understand, please tell me and if you are confused by anything I ask you, I would like you to tell me that as well, okay?--  Yeah.

E, do you understand what the word 'molest' means?--  Yes, I do.

And what do you understand that to mean?--  Sexually abused by an adult.

Do you understand what the word 'indecent' means?-- Yes.

What's that?--  Indecent behaviour like - like doing the wrong thing.

I see. Now who has explained those words to you so that you understand them?--  My dad.

All right.  And has he done that recently?--  No.

When do you think he told you what those words meant?--  Only last year.

Was it before or after you spoke to Sergeant Graham?--  Before."

In assessing the ultimate significance of that plain degree of influence from the complainant's father, one must, I believe, weigh it against (among other matters - including the pressure exerted during the first interview) the obviously important circumstance that the complainant complained comprehensively to his father on 5 July without prompting or pressure from the parents and before any police interview - and albeit after a period of denial and in the context of the rumour of the appellant's being a child molester.  I note my impression that during the second interview, the interviewing police officer did not apparently apply undue pressure to the complainant, or subject him to impermissible leading or suggestion.

Reverting to the particulars of this ground, I make the following additional observations:

Count 1: Sodomy

(a) to (e): These particulars substantially recapitulate points made earlier, as to the reliability of the complainant's allegations.  They are largely dependent for their significance, as put by counsel for the respondent, on "the proposition that the history of the denials by the complainant, his failure initially to talk to the police, and the 'pressure' to which he was subjected, render his evidence incapable of (reasonable) acceptance".

I agree however that if the jury was prepared to act on the basis that those features were explicable by an understandable reticence to speak, and that the suggested "pressure" on him was really no more than encouragement to tell the truth in respect of the issues at trial, then the appellant's point is seen to be of no great ultimate significance, especially also when taken in context of the complaint to the father on 5 July.  The jury, acting reasonably, was in my opinion entitled to approach the matter in that way.

I should add, with particular reference to (b), that the father's drug use is in my view rather remote from the central issues.  As to (a), the boy's willingness to be with the appellant notwithstanding the offences is apparently not uncommonly experienced in the case of children: children frequently do not understand or have the skills to cope with what is happening to them in these situations.

As to (f), I have considered the passages of evidence to which we were referred.  I take the view that these sorts of inconsistencies are such as might reasonably be expected, even from a truthful and reliable witness - of this age especially, and also especially where ‑ as here - the offences have taken place over an extended period.  The other particulars concern matters of detail which I did not find compelling in my overall assessment of this ground.

Count 2

The absence of corroboration and fresh complaint did not mean that a reasonable jury should have acquitted the appellant on this charge.

Court 3

None of the particulars, or taken in the aggregate, lead me to the view that the conviction was unsafe.

I would therefore dismiss the appeal against conviction.

As to the application for leave to appeal against sentence, I note immediately the gravity of the offences.  The applicant had no prior convictions.  Counsel for the applicant rightly conceded however that a 5 year sentence for the sodomy was "within the acceptable range".  The 5 year sentences for indecent dealing are however manifestly excessive.  I would therefore impose a 2 year sentence for each of counts 2 and 3.  It is not apparent why the judge did not distinguish between count 1 on the one hand, and counts 2 and 3 on the other, with relation to penalties.  Because the terms were concurrent, it of course had no practical consequence.  The point assumed significance in the argument before us because of the possibility that the conviction on count 1 (sodomy) might alone be quashed.  Because I would uphold all convictions, there is an academic aspect to any interference by me with sentence.  But in the interests of regularity, and because other members of the Court may take a different approach, I would allow the application for leave to appeal against sentence to the extent of substituting, for the 5 year terms of imprisonment imposed with respect to each of counts 2 and 3, a term of 2 years in each case, to be served concurrently as between themselves and concurrently with the 5 year term of imprisonment imposed in respect of count 1.

REASONS FOR JUDGMENT - DOWSETT J

Judgment delivered 1 July 1997

I have had the opportunity of reading the reasons prepared by de Jersey J and am in substantial agreement with them and with the proposed orders, including those as to sentence.  I wish to add only a few short comments on my own behalf.  At the completion of the argument of this appeal, I felt some concern as to the verdicts.  However, having perused the evidence and the charge to the jury by the learned trial judge, I no longer have such concern.  There were two important aspects of the evidence which did not emerge clearly in argument.  Those two aspects are critical to an understanding of this case.

The first is that although the appellant was charged with only one count of sodomy and two of indecent dealing, the complainant's evidence was of repeated interference of this kind.  In particular, the count of sodomy was clearly only the last of what was said to have been about 15 or more such incidents.  If that incident had been the only occasion of alleged serious misconduct, it would have seemed a curious coincidence that it had occurred shortly after a lengthy period of interrogation of the boy by his parents during which he denied any sexual interference.  It would strain credulity that the parents' fears should have been realised so shortly after they had been raised with the boy.  However, when one understands that on his story, misconduct had been occurring regularly prior to that interrogation, and that he complained shortly after a repetition of it, his evidence is easier to accept.

This aspect is also relevant to an assessment of the reliability of his evidence as a whole.  There are a number of inconsistencies and contradictions in it concerning particular incidents.  If he were describing a solitary incident, one would not expect such inconsistencies.  On the other hand, if he were describing one incident in a series, one can understand that at his age, he may tend to mix up and confuse elements of more than one offence.  Although his account of the incident in question may not be entirely reliable as to detail, that does not lead to the conclusion that it is unreliable as to the fact that the incident occurred.  At the trial, it would have been obvious to the jury that the boy was trying to describe one incident in a series.

The second important aspect of the evidence which has become clearer to me since the hearing of the appeal is the evidence of the medical practitioner, Dr Shellshear.  His evidence concentrated on an area of redness discovered in the vicinity of the boy's anus.  In isolation from the rest of his evidence, it seemed that he was speaking of superficial reddening of the skin caused by minor insult.  It seemed unlikely that such reddening would have lasted for a period of some days between the date on which the boy alleged the sodomy occurred and the date of the examination.  However a closer reading of the doctor's evidence shows that he was referring to something more than superficial reddening, although his evidence may be a little imprecise on this point.

As appears from the reasons prepared by de Jersey J, the boy had been interrogated at some length without his making allegations against the appellant.  Some days later, he raised the matter with his father, alleging sodomy and indecency.  When initially confronted by a police officer, he made no allegations.  At a second interview, he made allegations which are the bases of these charges.  Between the two interviews with the police, he had lengthy discussions with his father in which he was encouraged to complain in order to protect other children.  There was also a suggestion that he should be as brave as his sister had been.  She had also been the victim of molestation on an earlier occasion.  From the point of view of the complainant's credibility, these things were most unfortunate.  I think, too, that some of the police questioning was a little suggestive, although not to a worrying extent.  More seriously, the boy had been told that the appellant had been previously involved in child molestation and that he had been convicted of such misconduct.  These allegations were untrue.  Unfortunate as these circumstances may be, they do not lead to the conclusion that the boy is disqualified from being a credible witness against the appellant in any subsequent proceedings.

Finally, much emphasis was placed upon the fact that the boy had made no previous complaints and that he had demonstrated a certain enthusiasm about continuing his association with the appellant.  The boy's home background was unsatisfactory, and he may well have seen the appellant's home as something of a retreat.  This may, in part, explain his continued willingness to go back.  It is also possible that a young person may be attracted by the secrecy and intimacy of these encounters, not being yet equipped with the moral discretion which comes with age.  However, as his or her understanding of the acts in question develops, and particularly if parental disapproval of such conduct becomes apparent, that attitude may change.  It is likely that, to some extent, that happened here.  As the boy realised the concern with which his parents viewed the possibility that such conduct had occurred, he may well have come to realise that what he considered to be acceptable behaviour (at least if his parents did not find out) was conduct of which they deeply disapproved.  The pernicious nature of such misconduct lies in the fact that the child victim may not realise that it is wrong because of his or her youth and innocence and so will respond to a request to keep it secret and to participate in repetition.  In other cases, shame and embarrassment may also lead to this result.  We should not be surprised that children do not immediately complain of such misconduct.

The learned trial judge's charge to the jury was balanced and highlighted the very serious problems with the boy's evidence.  There can be no doubt that the jury was aware of the seriousness of the task which it faced and of the difficulties which had to be overcome by the crown in order to secure convictions.  The jury deliberated for an extended period of time, and I see no reason to doubt that they considered these various matters of criticism in conjunction with the other evidence.  The jury was constitutionally charged with the responsibility of deciding upon these charges.  I see no reason to doubt the appropriateness of the verdicts.