SUPREME COURT OF QUEENSLAND

1. McMURDO P:  I agree with Holmes J that the appeal against conviction should be dismissed for the reasons she gives.

2. MUIR J:  I agree that the appeal should be dismissed for the reasons given by Holmes J.

3. HOLMES J: The appellant was convicted after a trial of three counts of indecent dealing with a child under 14 years, and three counts of sodomy. The offences were said to have been committed during various periods ranging between March 1967 and January 1970 by the appellant, then a serving police officer, on a boy, R, in a Brisbane children’s home. Evidence in the nature of similar fact was led from the complainant’s brother, G, and another boy, T, who had visited the home because his grandparents lived and worked there. Each of those witnesses gave evidence of acts of indecency by the appellant upon them. The grounds of appeal were, in summary, that the learned trial judge erred in refusing to stay proceedings on the indictment given the delay, the resultant loss of evidence, the absence of specificity as to the dates of the offences, and the weakness of the prosecution case; that he erred in admitting similar fact evidence; that the evidence of the complainant was so deficient that the verdict was unsafe and unsatisfactory; that the trial was not fair because of the Crown’s departure from the particulars provided prior to trial; and that fresh evidence was now available which might, had it been led at trial, have led to the appellant’s acquittal.

The complainant’s account

4. It was admitted that R was placed in the children’s home on 10 March 1967, at the age of nine, and remained there until 7 August 1969, when he returned to live with his mother. He slept in a dormitory with about 35 other boys. The appellant, according to R, was a house parent, and had a small bedroom adjoining the dormitory, in which he slept most nights over a period of six to eight months. R described the appellant as about six foot tall, heavily built, with short curly hair and an olive complexion. He wore a khaki grey uniform which the boys believed was that of a prison officer; but later R saw him in a blue uniform and realised he was a police officer.

5. R said that he first saw the appellant after he had been at the home about six to eight weeks. He was in his bed crying. The appellant came out of his room and knelt beside his bed. He put his hand up under the blankets and placed it on top of R’s penis over his pyjamas, and asked him what the matter was. Then he took R to his room to give him a glass of cordial and, while he was drinking it, fondled R around his hips, pulled his pyjamas to his knees, rubbed his thighs, and then commenced to suck his penis. That lasted for a couple of minutes before R was told to go back to bed.

6. As R described it in his evidence at trial, there was another occasion a couple of weeks on, when the appellant once again came and knelt by his bed, played with his penis, and then again offered him a glass of cordial. On this occasion also his pyjama pants were pulled down and his penis sucked; but these events were followed by his being made to lie face down on the bed. Cream was applied between his buttocks, and the appellant penetrated him anally. The events of touching, oral sex and sodomy on this occasion were left by the trial judge to the jury as counts 1, 2 and 3. The appellant was convicted on each of those counts.

7. According to particulars provided by the Crown in advance of the trial, and the Crown opening, there was a further occasion at the children’s home on which R was taken into the appellant’s bedroom, where the appellant sucked his penis (count 4 on the indictment) and then sodomised him (count 5 on the indictment). In evidence in chief, R gave evidence of being sodomised, but said nothing of oral sex before that occurred. In cross-examination he did give evidence of oral sex on the second of the occasions on which sodomy was performed on him at the home, but, as he admitted, there had been no reference to this incident of fellatio in his first statement to police. The evidence was thus somewhat confused on count 4, which reflected the oral sex allegation, and the jury acquitted on that count.

8. R said that there were a number of occasions of sexual misconduct by the appellant, but it was those involving sodomy and significant pain that he remembered most clearly. The second incident of anal penetration was the last such instance at the children’s home. About eight weeks after that incident, the appellant left, and R did not see him again until August of 1969 when the appellant picked him up in his car to return him to his mother’s house at Buranda. R’s mother accompanied them. The car they travelled in was the same grey-blue EH Holden the appellant had driven when he stayed at the home before his departure. He told R that in the intervening period he had been to Cyprus.

9. Two or three weeks after R was taken home, the appellant took him to the speedway one Saturday night in a new car, a Holden Monaro. R described the car in some detail. It was an early series HJ model, red with two black stripes on either side of the middle of the bonnet and the boot. It had a tachometer on the console, where the automatic gear shift was. After the speedway outing, they went to the appellant’s flat at Kelvin Grove. R described it as a ground level, one bedroom unit. That night the appellant performed fellatio on him and sodomised him once more, again applying cream for that purpose. These incidents were reflected in counts 6 and 7 on the indictment. Other sexual assaults occurred, he said, on other occasions in the flat, but he did not recall them as clearly because they did not involve sodomy. Under cross-examination, he agreed that there was no reference in his statement to the police of other incidents of sexual assault; indeed, he had said that the appellant had done nothing to him after the incident of sodomy at his flat. He said that was because the police officers interviewing him were not concerned with any other event.

The ‘similar fact’ accounts

10. R’s brother, G, said that he had met the appellant when he brought his brother home from the children’s home one night. He described the appellant as young, having black hair, and being really big, about six feet tall, and of solid build. He did not then see the car the appellant was driving, but later saw a new red Monaro with a black stripe down the middle. On a later occasion the appellant took him to the speedway. He stayed the night at the appellant’s flat in a block of flats, which were made of red brick and had car parking underneath. G was watching television when the appellant told him to sit on his lap, and put his hand up the leg of G’s shorts, and onto his penis. Then he took him in the bedroom, undressed him and began to suck on his penis, after which he put something like grease between G’s buttocks and penetrated his anus. After that, G had a shower and got into his pyjamas. G said that there were a couple of other occasions on which he went to the speedway with the appellant and was taken back to his flat, but his recollection of them was sketchy. Under cross-examination, G was shown a photograph of the “Clear View” flats at Kelvin Grove, which he said, was not where he had been taken by the appellant. He denied ever visiting the appellant with his mother at a flat where the appellant was living in 1970.

11. T was not a resident of the home, but was the grandchild of a couple who had worked there. He had visited his grandparents there on a couple of occasions when the appellant was there; the latter had been wearing a police uniform. He had also been taken by the appellant to the speedway in the red Monaro. He believed that occurred while he was staying at the children’s home. His recall was that the Monaro model had just been released. During the drive, the appellant had fondled and sucked his penis while the car was stationary at traffic lights. They had returned to the appellant’s unit. He could recall that it was a brick building, and they had gone up a flight or two of stairs.

12. In an effort to establish a time frame for T’s allegations, evidence was given that his grandparents had retired to live in a house at Redcliffe. It was admitted that their daughter took possession of that house on their behalf on 24 July 1969. T’s mother explained that her sister had bought the house for their parents in her name. They had not moved into it straight away. Her father died on 3 November 1969, and at that time he was living at the Redcliffe house. She believed that he had died within 6 months of moving; on the other hand, there had been some lapse of time after the purchase of the house, perhaps as long as 3 months, before they retired there.

Other evidence about the appellant

13. A former resident of the children’s home, D, who, it was admitted, had been there between January 1968 and 1971, said that the appellant seemed to be in the position of an assistant and lived in a flatette off the boy’s dormitory. He stayed quite often, and was there predominantly during the week, in the afternoon and evening. D agreed that at the committal he had been asked whether the appellant stayed “seven nights a week or what was the story” and had answered “I can’t recall”. He maintained, however, that he had meant that he was unsure whether the appellant had stayed seven days a week; but that he had stayed overnight. The appellant had disappeared in mid 1968, and returned about a year later driving a red Monaro with a black stripe on the bonnet. D believed him to be a police officer, and he wore a khaki uniform.

14. W had also been a resident of the home, having been admitted on 25 January 1965 and lived there for some years. He recalled the appellant as a very big man with a lot of curly black hair. He said that the appellant would visit the home on average once a month, and would stay the weekend. He would come on a Friday afternoon, and leave on Saturday or Sunday, and would sleep in the room in the dormitory where W, R and D all slept. He had a grey-brown police officer’s uniform and drove a Monaro. It was a bright colour; he thought it might have been yellow or green with GT stripes. W’s recollection was that the appellant was there off and on for a couple of years, and then disappeared. He had heard that he had gone to Cyprus. After that he came back only once or twice.

15. Roger Lewis, a retired police officer, said he had served with the appellant in the police force after the latter’s return from Cyprus. He recalled his having bought a 1969 Holden Monaro, red in colour. The appellant had told him that the vehicle was manually geared. In late 1970 or early 1971 he saw the car parked at a block of units where he understood the appellant to be living, in Blamey Street, Kelvin Grove. Although he did not see the appellant himself at the units, he had at the appellant’s suggestion, and having got the address from him, gone there in the later part of 1970 to see about renting a unit. He described the units as brick with an open ground level for car parking.

16. It was admitted that the appellant was a Queensland police officer at all relevant times. He had taken 6 months leave of absence from the Queensland police force and served with the Commonwealth police in Cyprus, leaving for Cyprus on 23 May 1968 and returning on 30 July 1969. It was also agreed that the police uniform in the 1960s was khaki and brown, and that the first Monaro was released on 22 July 1968.

The defence evidence

17. The appellant gave evidence at the trial. He said that before going to Cyprus in May 1968, he had lived at the “Clear View” flats, at Victoria Park Road, Kelvin Grove. (A photograph of the flats, which the appellant described as fibro and timber, blue in colour, on stumps, was put into evidence.) On a couple of occasions, as a police officer, he had returned boys absconding from the children’s home, and had become friendly with the superintendent and his wife, Mr and Mrs Kirkpatrick. They made him welcome at the home. Generally he tried to visit every couple of weeks in the evening, if his shifts permitted, and stayed until about 10.30 pm. He was there during the week; he had never been at the home at weekends. A room off the junior dormitory was made available for him to sleep in. He had used it, approximately, 3 times in 1967 and once in 1968. At the most, he had stayed at the home 5-6 times. He had only entered the boys’ dormitory alone on those occasions on which he stayed there. It was possible that he had gone in if the boys were making noise. When he was visiting the home, he would help the boys with their homework or other activities, watch television with the staff and older children, or assist the cook, Ms Holmes, in the kitchen. At that time, before he went to Cyprus, he owned an EH Holden sedan, greyish in colour.

18. He had never returned to the children’s home after coming back from Cyprus. Prior to his departure, he had spent a couple of weeks in Canberra on an induction course. On his return on 30 July 1969, he had a couple of days in Sydney and then spent some time with his family near Laidley. He believed he had returned to work in the Queensland police force on about 14 September 1969. For the first couple of months after his return to work, he remained living with his family near Laidley and commuted, until he found a flat at Kelvin Grove around about November 1969. The flats he moved into were called “Granite Court”, and were in School Street, around the corner from Blamey Street.

19. On his return from Cyprus, the appellant said, he used money he had saved there to buy a new vehicle, a 1969 HT Monaro. He had taken possession of it in early September 1969, at the earliest, because there was a waiting time of 6 weeks. It was orange, with GT stripes in the centre of the bonnet and the boot lid. A photograph of the vehicle, taken, the appellant said, on the day he took delivery, was tendered in evidence. It shows the vehicle as of a colour which might as well be described as red as orange. It had no number plates at that time. Another photograph, of the vehicle’s interior, shows the tachometer on the dashboard, and a manual gear shift. The appellant said he had kept the vehicle parked under a carport at the front of the Granite Court flats.

20. The appellant said that he had met the mother of R and G at the children’s home. She had invited him to her house for a meal, and he then met G. He thought that was in 1967. He had been to visit them a couple of times. In 1970, some time after he had returned from Cyprus, R’s mother had made contact with him again, and she and G visited him at Granite Court. At that time she was operating a fish and chip shop at Scarborough, and invited him to visit. He did so, and on that occasion took G to the speedway in the Monaro. He had returned him home afterwards, and had never indecently dealt with him. He had received a letter from G asking him for help in finding work in late 1980.

21. The appellant said that neither R nor T had ever been in the Monaro, and he had not taken either boy to the speedway. He had not had the Monaro in the time he was in contact with T’s grandparents, which was before he went to Cyprus. R was never inside his flat at Granite Court, and he had never indecently dealt with him or sodomised him. He had not seen T after his return from Cyprus, and he had not indecently assaulted him.

22. During the time the appellant had lived at the Clear View flats he had known another resident, Betty Hembrow, with whom he was friendly. Mrs Hembrow gave evidence that she had lived at the flats up until her departure on marriage in July 1967, and after that time had continued to visit the appellant there. She was aware of his staying away overnight occasionally. He had stayed with his mother for a while after his return from Cyprus, before moving into the flat at Granite Court. That building was one story, wood with some brick. Some units had parking underneath; sometimes the appellant would park in the street. Mrs Hembrow recalled that until his departure for Cyprus he had a grey Holden, obtaining a red Monaro at some stage after his return.

The stay application

23. Before the commencement of the trial, the defence unsuccessfully sought a permanent stay of proceedings on the indictment. On appeal, counsel for the appellant, Mr Martin, argued that the decision to refuse the stay was unreasonable. Logically, that argument might fall to be considered first; but in the course of it, Mr Martin argued that one of the factors to be considered was what he referred to as the weakness of the prosecution case. For the proposition that the strength or otherwise of the Crown case is relevant in the consideration of whether a stay should be granted he relied on statements by Fitzgerald P and Thomas J in R v Johannsen^[1], in which the paucity of evidence against the surviving appellant was referred to as one of the reasons for allowing an appeal against a refusal to grant a stay. 

24. It seems to me that in considering whether the continuation of a prosecution is an abuse of process it must be relevant to consider, at least, whether the prosecution has a real prospect of success. That is not to say that fine balancing exercises must be entertained; but plainly in considering whether proceedings would be oppressive it is relevant to consider whether they are viable. Having reached that view, and since one of Mr Martin’s submissions concerns the strength or otherwise of the prosecution case, it is convenient to leave for the moment the question of whether a stay should have been granted and deal instead with the other grounds of appeal.

Admissibility of similar fact evidence

25. Mr Martin submitted that a pre-trial ruling, adopted by the trial judge, as to the admissibility of the similar fact evidence, was wrong. The Crown should not have been permitted to lead evidence from G and T in support of R’s evidence of assaults at the appellant’s unit, after the outing in the Monaro to the speedway (counts 6 and 7). There was nothing distinctive, he argued, about the nature of the sexual acts committed: masturbation, oral sex and sodomy, with the last involving the use of lubricant, were common in offences against boys. The fact that G and R alleged that they had been sodomised at the appellant’s unit was unremarkable; such events usually happened at some sort of dwelling. An outing to the speedway was a very ordinary social event in the late 1960s and early 1970s, and it was to be expected that whatever vehicle the appellant drove would be used as a means of transport there. The connection with the children’s home was tenuous: neither G nor T lived there, and the appellant’s contact with G was made entirely outside the home. The evidence of T could not amount to similar fact in relation to counts 6 and 7, because he did not allege that any sexual activity had occurred at the appellant’s unit, nor that he had been sodomised.

26. Mr Martin argued, in addition, that weaknesses in the evidence of the events constituting similar facts went to its probative value, and hence required assessment before its admissibility could be determined. He relied for that proposition on the first of the questions posed by Thomas JA in R v O'Keefe in clarifying the Pfennig test:

“Is the propensity evidence of such calibre that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged?” ^[2]

and on this statement from the judgment of Mason CJ, Deane and Dawson JJ in Pfennig:

“Obviously the probative value of disputed similar facts is less than the probative value those facts would have if they were not disputed.”^[3]

27. Here, Mr Martin said, the propensity evidence was so lacking in reliability as to have no probative value. He pointed to these matters: G had given evidence that R was still a resident of the children’s home at the time he was taken to the speedway; but R had lived at the children’s home until 7 August 1969. The appellant had only returned from overseas on 30 July, and he had not acquired his Monaro until later. In his police statement, G had said that he first met the appellant when he was in Grade 2 and the appellant had brought his brother home from the children’s home; but that was wrong because G had been in Grade 2 in 1966, and R had returned from the children’s home in 1969. (G said in evidence that he was mistaken about being in Grade 2 at the relevant time; he was in grade 3 or 4.) G had claimed that his mother first met the appellant at the same time he did and that this was unexpected; but R said that the appellant took both him and his mother home from the children’s home. G had said that the appellant when he brought his brother home from the children’s home was wearing a blue police uniform. That could not be so, because in August 1969 the police uniform was khaki.

28. G had given a description of the appellant in his police statement as huge, about six foot six and very hairy, which was demonstrated to be wrong; the appellant was of unremarkable height, and a photograph taken of him in 1969 showed he did not have a lot of body hair. G’s description of the flat where he was taken, as being of brick construction with a car park underneath, did not match the photograph of the Clear View flats, showing that those flats were of timber construction, and the evidence given by the appellant and Mrs Hembrow was that the Granite Court flat was a single storey building of timber and brick. G had claimed to have been frightened of the appellant and denied having tried later to contact him, but was shown to have written a letter to him in 1980, asking for help in finding a job. G had admitted in his evidence in the Magistrates Court that he had been told his brother had made a complaint against the appellant and had agreed that he would “back the story up”.

29. Of T’s evidence, Mr Martin said that it was not possible that he could have been taken in the Monaro to the speedway at a time when he was visiting the children’s home and his grandparents were still living there. The Monaro must have been acquired after the grandparents left the children’s home, and the Redcliffe property had been bought before the appellant returned from Cyprus. All these factors led, he said, to a conclusion that the evidence lacked the probative value which would warrant its admission as similar fact evidence.

30. The effect of the submission was that the admissibility of the evidence of G and T was to be judged by reference to its reliability. In practical terms, the notion that a trial judge should, at the start of a trial, have to scrutinise ‘similar fact’ evidence, in the form of statements on paper or of oral evidence on the voir dire, for inherent inconsistency and inconsistency with other evidence, in order to decide on its admissibility is entirely without attraction. But I think the submission misconceives the nature of the enquiry as to probative value for the purpose of determining admissibility as similar fact evidence.

31. In Pfennig v The Queen, Mason CJ and Deane and Dawson JJ adopted this principle from the judgment of the majority in Hoch v The Queen^[4]:

“the basis for the admission of similar fact evidence lies in its possessing a particular probative value or cogency such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused in the offence charged”.^[5]

They continued:

“In other words, for propensity or similar fact evidence to be admissible, the objective improbability of its having some innocent explanation is such that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged.”

32. The reference in the first of Thomas JA’s questions in O'Keefe to “evidence of such calibre that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence”^[6] alludes, it may be seen, to the second part of the passage set out above. The words “evidence of such calibre” are an addition, apparently a shorthand way of expressing the reference in Pfennig to “the objective improbability of [the evidence] having an innocent explanation” being such that there remained no reasonable view other than that of supporting the inference of guilt. That statement in Pfennig was itself a paraphrase of the principle that the majority had in the preceding sentence adopted from Hoch; and in both Hoch and Pfennig the question was posed in terms of whether the evidence had the necessary quality of bearing no other reasonable explanation “if accepted” (italics added).  That qualification confirms, I think, that it is appropriate to proceed in the context of considering admissibility of evidence said to constitute similar fact on an assumption that the evidence is accepted, and it follows that it is not necessary to embark on an examination of its defects for that purpose; although of course, it may be appropriate to do so in considering an exercise of the discretion to exclude it.

33. The necessary enquiry for present purposes is as to the probative force of the evidence, which is not a question of its weight, but depends on the

“connexion, judged according to experience and common sense, between the facts directly established by the evidence and the fact in issue, which may be the conduct charged, the identity of the culprit or his state of mind.”^[7]

The probative value or cogency of the evidence may derive from striking similarity or underlying unity; but those characteristics are not essential to admissibility in every case.^[8]

34. The statement Mr Martin relied on from Pfennig, as to the inferior probative value of disputed facts, was made in the context of a discussion of the distinction drawn in Hoch between disputed and undisputed similar facts.  In Hoch the majority said that evidence of similar facts not in dispute

“may render it objectively improbable that a person other than the accused committed the act in question, that the relevant act was unintended, or that it occurred innocently or fortuitously.  The similar fact evidence is then admissible as evidence relevant to that issue”.^[9]

On the other hand, where the events said to constitute similar fact evidence were in dispute, the probative value of such evidence lay “in the improbability of the witnesses giving accounts of happenings having the requisite degree of similarity unless the happenings occurred”; or, to put it in another way, “the improbability of similar lies”.^[10] The distinction between disputed and undisputed evidence was not one of weight, but of the way in which the evidence could be used to prove the allegations in issue; the former was direct in its relevance, the latter indirect.

35. In Hoch, the similar fact evidence came from complainants who alleged strikingly similar acts of indecent dealing. Because of the nature of that evidence as circumstantial evidence serving to confirm the veracity of the complainant’s evidence and the happening of the events in issue, the majority explained, its probative value existed only if there were no other rational explanation consistent with innocence.  The possibility of concoction was such an explanation, depriving the similar fact evidence of the degree of probative value necessary to render it admissible.  The questions posited in Hoch were not whether the evidence was in fact the product of concoction or whether the evidence of individual complainants was reliable; rather they were, how, and whether, the evidence of similar happenings could be applied to render more probable the events in issue.

36. In this case, it was not suggested that there was any element of concoction. R and G had had little contact in the past twenty years and had not spoken for a decade. They had never met T. Nor was any other hypothesis as to the coincidence of the evidence of T and G with that of R, or its source other than in fact, advanced; it was simply said that defects, in the form of inconsistencies with other evidence, could be identified in their individual accounts. For the reasons I have given, it is not necessary in determining the admissibility of their evidence to embark on an examination of those defects.

37. There was, in this case, a strong underlying pattern in what, on the three witnesses’ versions, occurred. Each of the boys was aged around 9 or 10. In each case, the appellant had formed an association with the child’s family through his connection with the children’s home, assisted, no doubt, by the high regard he was held in there. In each case the family had entrusted the boy to him for the purpose of an outing to the speedway. The combination of the appellant’s own powerful vehicle, the Monaro, and the fast cars at the speedway was likely to have made the proposed excursion seem, at least from the perspective of an unsuspecting parent, an exciting and generous offer to a small boy. In each instance, the outing gave the appellant the opportunity to be alone with the boy afterwards; and in each instance there was an allegation of sexual assault, which in all three cases included masturbation and fellatio. It is not appropriate, of course, to consider those features individually; the whole of the circumstances ought to be considered; and they amount, in my view, to a common modus operandi.

38. If the evidence of G and T were accepted, it could only reasonably be viewed as supporting an inference of guilt. Assuming the accuracy of the other evidence in the Crown case, it was, as a whole, reasonably capable of excluding other, innocent hypotheses. The improbability of G’s and T’s giving accounts of sexual assaults by the appellant with features so similar to those described by R, in the absence of any explanation other than their basis in fact, was a circumstance properly before the jury. No error was made by the learned trial judge in admitting that evidence.

Fresh evidence

39. Notwithstanding my view that the defects identified in the evidence of G and T do not require examination in considering its admissibility as similar fact, it is relevant, because of other submissions about the strength of the prosecution case, to give some further consideration to the features pointed to by Mr Martin as unsatisfactory. Some of those submissions coincided with an argument about the likely effect of fresh evidence on the jury’s view of the reliability of G’s and T’s evidence.

40. The fresh evidence the appellant sought to introduce was in the form of details of a 1975 registration in his name of a Holden Monaro Coupe, orange in colour. The renewal date for the vehicle’s registration was 5 September 1975. All records before 1975 had been destroyed; but it was, Mr Martin said, a reasonable inference that this vehicle was the one that the appellant had had in 1969; and that, since registration was annual, its original registration date would have been 5 September 1969. The evidence was not, strictly speaking, new. It could have been obtained had the appellant’s solicitor realised its relevance, but he was deterred by the advice that no pre-1975 records were available. However, the Crown did not dispute that the information could be admitted as fresh evidence. The effect of the evidence was, Mr Martin submitted, to refute the evidence of G and T, thus giving rise to a significant prospect that the jury would have acquitted the appellant had it been available at trial.

41. The significance of the date of registration of the appellant’s motor vehicle, 5 September 1975, depended on whether there had been any change of registration since 1969, and whether it was registered as soon as acquired. Assuming however, that it was accepted as demonstrating the acquisition of the car in September 1969, the evidence still left open the prospect that T’s grandparents may still have been living then at the children’s home, since they did not move to Redcliffe immediately on purchase of the house there. And T’s evidence when asked where he was picked up from to go to the speedway was not given in terms of absolute certainty: “well it was a long time ago, I was pretty sure it was [the children’s home] where I was staying”. If the jury concluded, because of the vehicle’s registration date, that he was wrong in saying that he was taken to the speedway in the Monaro from the children’s home, they were in my view, much more likely to attribute that to an error in his recollection as to the timing of the event and where he was then residing, than invention on his part of the outing and being in the appellant’s car.

42. Similarly, G made it clear that he was most uncertain as to where his brother was living when he was taken to the speedway by the appellant. But, in any case, the appellant’s own evidence was that he had taken G to the speedway in his Monaro, although he said he had returned him home that night and that it was later, in 1970. It was unlikely therefore, that evidence as to registration of the vehicle in early September would have caused the jury to reject G’s evidence about the outing out of hand, as opposed to, at the highest for the appellant, thinking that he was mistaken as to its timing.

43. In short, apart from any uncertainty as to whether the car was registered as soon as acquired and maintained the same registration date thereafter, given that the evidence left it open that the events described by T and G occurred as late as September 1969, and given that any discrepancies in their evidence, at their highest, were capable of attribution to an innocent mistaken recollection as to time, I do not think that the evidence of the vehicle’s 1975 registration date was at all likely to have led the jury to different conclusions.

Other aspects of G’s evidence

44. Other deficiencies pointed to in G’s evidence are not of any real consequence. Details he gave about the appellant’s police uniform, whether his mother came home with R and the appellant, and whether he was in grade 2 at the time were, whether he was right or wrong, hardly crucial either to the substance of his evidence or to his credibility. His recall of the appellant as a huge and hairy person is not at all surprising, given their respective ages and status at the time of the events.

45. The contact that G had made with the appellant by letter was over 20 years before the trial, so his failure to recall it was not of itself damning. By the time he wrote it, he was an adult, and might have been expected to have overcome any childhood fear; and on his account, he was in fairly desperate straits. The statement G had made about supporting his brother’s account was in this context: the investigating police officer had told him that his brother had made a complaint about the appellant, “and I think he asked me about have I got anything to say that would back the story up and I said ‘yeah’.” That answer, I think, is innocuous. There was nothing to suggest that the substance or details of his brother’s complaint were put to him.

46. The description of the flat where G was taken as made of brick is not really inconsistent with the description of the appellant and Mrs Hembrow, of the Granite Court units being brick and timber; and, in any case, it is to be noted that neither of them was at all confident as to the building’s construction. Nor was there any necessary inconsistency between G’s description of the car being parked underneath, the appellant’s evidence that he parked “out the front of the flats under a carport”, and what Mrs Hembrow said, which was that “Some [of the flats] had parking underneath but sometimes [the appellant] would just park out in the street.” And again it is worth noting that on the defence case, G had known the appellant, and had visited his flat; so any deficiency in his evidence in this regard could not demonstrate dishonest invention, as opposed to faulty recollection, on his part.

Whether the verdict was unsafe and unsatisfactory

47. Mr Martin identified what he said were inconsistencies in R’s evidence such as to make it unworthy of credit and to render the verdicts unsafe and unsatisfactory:

Description of sexual assaults at the home

48. R conceded that his police statement had not mentioned that the appellant’s first assault on him began with the fondling of his penis, and that at committal he had described that first assault as including sodomy. At trial he had said when oral sex was performed on him on that occasion, he was sitting on the appellant’s bed with the appellant kneeling between his knees, whereas in his committal evidence he had said that he was lying on the bed on his back. (R said in cross-examination that the truth was something between the two, that the bed was not wide enough to lie flat across it, so that he was in a position between sitting and lying.)

49. In relation to the second assault of which R gave evidence, in which he was sodomised, he had not referred in his statement to being touched on his penis under the bed clothes or oral sex being performed on him before that assault. At trial he had said he was told to lie down on the bed, and had complied. At committal, he had said that the appellant had laid him on the bed by pushing him down, although not forcibly. He said in cross-examination that what happened was a combination of the two, that the appellant had asked him to lie down and had helped him to do so. At trial R had said that the appellant always laid him face down on the bed before sodomizing him, but at the committal he had said on this occasion the appellant had laid him down on his back before turning him over and penetrating him. He had described at trial lying on his stomach on the bed and feeling a cold wet sensation between his legs, which the appellant told him was cream to stop any pain. In his committal evidence he said he had seen the appellant get the cream and put it on him.

50. In respect to the third instance detailed of sexual assault at the children’s home (that on which counts 4 and 5 were based), R had not, in his evidence in chief, said anything about having been touched on the penis under his bedclothes, or oral sex having occurred. His police statement did not say anything about oral sex. In cross-examination, he described the touching of his penis and oral sex being performed on him. R had described at trial being given a towel to wipe himself after the sodomy involved in count 5, but he did not mention that in his police statement. At trial he said he had himself left the children’s home about 8 weeks after the third sexual assault; in the police statement he said it was about a week after.

51. R had given varying accounts of how often the sexual assaults occurred at the home. At trial he said that there were other occasions which he did not remember as clearly as those charged, occurring once or twice a week over the 3 to 4 months that the appellant was at the home. In his police statement, he agreed, he had described only 3 incidents; he said those were the ones that most bothered him. At the committal he had given the frequency of assault as about once a month for about six months. He said that was because he had not had time to give a considered answer.

Description of sexual assault at the appellant’s flat

52. At trial R said in evidence in chief that upon going back to the appellant’s flat after their trip to the speedway, he watched television and the appellant had a shower, from which he emerged in a bathrobe. There were two beds; the appellant told him to get undressed and get into a bed with him. At the committal he had only described one bed in the flat, but that, he said at trial, was wrong. In cross-examination he agreed that at the committal he had said that he had had a shower himself and put pyjamas on, as did the appellant. The police statement made no mention of his having a shower, and in it, the appellant’s instruction to him was said to be to strip to his underpants. At the trial he had said the appellant had kissed him while he was sitting on the side of the bed; in the police statement he said that he was lying in the bed when the appellant rolled over and kissed him.

53. At the trial R said that the appellant had not masturbated him in this incident, as opposed to fondling him and performing oral sex on him. At the committal he had described the appellant masturbating him. In evidence in chief he said that the appellant had asked him to perform oral sex on him. He refused; but, he said, the appellant asked him again “and I did it”. In cross-examination he was asked about that sequence of events. He said again that the appellant had asked him to perform oral sex on him and he had said “no”; and then the appellant had asked him to masturbate him, so he did so. He said that the words “I did it” were a reference to masturbation, not oral sex.

54. At trial R described masturbating the appellant who went into the bathroom and ejaculated, then came back and sodomised him. In his police statement he had omitted any reference to the appellant’s going into the bathroom at that stage. In evidence in chief, R said that the appellant after sodomising him rolled off him, and they both went to sleep. In cross-examination he had said that the appellant had wiped him after the sodomy. In his police statement he said that the appellant had wiped himself and then gone into the shower. At trial, R said that there were two or three other sexual assaults that took place at the flat after the sodomy, but in his police statement he had said of the event of the sodomy, “that was the last time [the appellant] ever did anything to me”. He said that the police were not interested in incidents other than the sodomy, although he had told them about them.

R’s description of the appellant and his movements

55. R had described the appellant in his police statement as about 18 stone in weight, but the photograph tendered does not show a particularly large build. He said at trial that the appellant was about 35 years at the time. He was some nine years out: the appellant was 26 in 1968. At the committal he had said that the appellant told him he was a prison warden. At trial he said that was inaccurate; the boys at the home had assumed the appellant was a prison warden because he had referred to being in a fight during a riot at the jail. He also asserted that he had seen the appellant at the children’s home in a blue uniform although at that time the police uniform, as the Crown had admitted, was khaki. At trial R said he did not know where the appellant lived after his return from Cyprus; he did not think he had lived back at the children’s home. At the committal he had said that the appellant returned to the children’s home “to live or to stay or to board or whatever he was doing there”. At trial he said that he did not know as a matter of fact whether the appellant was living there; when he saw him at the home he might have been boarding, or just visiting someone.

R’s description of the car

56. R had said in his police statement that the appellant’s Monaro “was orange and had black stripes on each side. It didn’t have the stripe up the middle”. He had described it as automatic with the tachometer on the console. He made it clear, before being shown a photograph of the car, that when he referred to the vehicle having stripes on each side, he meant that the stripes were on the side of the bonnet and the boot, not the sides of the vehicle itself. At the trial he said that the first time he saw the Monaro was when the appellant took him to the speedway. At the committal, he had said that he first saw the vehicle when the appellant came to the house to visit and took him for a ride in it. It was some two hours later that the appellant came back and took him to the speedway.

57. Some of the discrepancies referred to were trivial in the extreme. R’s misjudgement of the appellant’s age by nine years hardly bore mentioning. Other details, such as R's position on the bed at different times, whether he saw the cream before it was applied to him and whether or not he mentioned being given a towel to wipe himself, were peripheral. He might well have been wrong in his description of the Monaro, but given that he could not, on his own account have been in it more than three or four times thirty years previously, the jury was unlikely to take that as reflecting significantly on his credibility. Similarly, the quality of his recall of the appellant’s uniform, any misconception as to the appellant’s build at the time and whether he had first thought he was a police officer or a prison officer, although relevant, were unlikely to be telling. D’s evidence, if the jury found it convincing, was capable of satisfying them that the appellant was a good deal more often at the home, particularly at night, than the appellant’s own evidence suggested; and in turn, of supporting R’s account at least to the extent of confirming the appellant’s regular opportunity for nocturnal contact with him.

58. Other matters were of considerably more significance. It is clear that there was some confusion in R’s evidence as to whether the first act of sodomy committed on him occurred on the first occasion he was indecently dealt with (as his committal evidence indicated) or whether it occurred on a later and separate occasion, as both his statement and trial evidence described. That led to a number of the discrepancies that Mr Martin pointed to; but all were explicable by reference to R’s age at the time of the events, the passage of time since, and the lapses of time between the giving of the first statement by R in 1996, a committal which took place in April 1999, and a trial in March 2003. It was inevitable that his memory would evince some flaws over the entire period, particularly under the challenge of the rigorous and testing cross-examination he encountered at trial and committal. Notwithstanding, it was open to the jury to conclude that each of the events in counts 1 to 3 had happened; that is to say, that there had been on one occasion the events of fondling R’s penis, the oral sex and the sodomy, whether there had been a prior occasion of indecent assault or not.

59. The jury clearly scrutinised R’s evidence with some care in the instance of count 4, where he omitted to mention oral sex in his evidence in chief; although he did refer to it in cross-examination, the appellant was acquitted of the count reflecting the oral sex. As to counts 6 and 7, R had consistently described oral sex and sodomy performed on him by the appellant. Inconsistencies as to who used the shower when, and whether he had or had not masturbated the appellant on that occasion were not crucial; and, importantly, R’s evidence on these counts was supported by the similar fact evidence.

60. Fundamentally the issue for the jury was whether it was satisfied of R’s truthfulness when he gave evidence of the three sets of events giving rise to the seven counts. I do not think that any of the discrepancies identified do more than, at their highest, indicate inaccurate recollection about detail. There is nothing in them which should, in my view, have led a jury to the conclusion that R was not a witness of credit. They were entitled to accept and act on his evidence; and it was open to them, on accepting it, to be satisfied beyond reasonable doubt that the appellant was guilty of each of the counts of which he was convicted.

The discrepancy between the evidence and the particulars

61. On 13 January 2000 the Crown provided particulars of the counts on the indictment. Those particulars formed the basis of the Crown’s opening in the trial. The particulars provided of counts 1, 2 and 3 were as follows:

Count 1

He recalls the first time he met the accused.  He remembers it was about four or five weeks after he arrived at the home.  It was near his birthday which is in May.  He was in his bed crying and the accused came over to him, knelt down beside his bed, put his hands under the blanket and started playing with his penis.  He put his hand on his penis over the top of his pyjamas.  When this happened, he was in his bed in the dormitory and all of the other boys were in bed.

Count 2

In the room, the complainant sat on the bed and the accused sat beside him.  He continued to put his hand on his leg and started playing with his penis.  He was touching him on the penis and managed to do this by sliding his hand through the pyjama pants.  The accused then pushed him down onto the bed.  He took off his pyjamas and performed oral sex on him.

The particulars of count 3 related to the same occasion:

Count 3

The accused then turned him over, put his head in the pillow and had anal intercourse with him.  He remembers that prior to doing this, the accused put some cream on the complainant’s anus and on his own penis.

Plainly enough, those particulars were based on the evidence R had given at the committal, in which he had described the three events of fondling, oral sex and sodomy as occurring on his first encounter with the appellant. His evidence at trial, however, departed from the particulars when he described the first occasion of sexual misconduct against him as limited to fondling and oral sex; it was the second occasion which involved touching, fellatio and sodomy.

62. Particulars were given of counts 4 and 5 which were not specific as to their place in the series of assaults on R at the home, other than that they involved a subsequent event to that particularised for counts 1-3:

Counts 4 and 5

He recalls being abused again several weeks later.  He recalls it would have been around June of that year.  He remembers the accused coming up to his bed.  He was upset at the time because he wanted to go home.  The accused called him into this bedroom and offered him a glass of cordial.  In the room, he was again assaulted by the accused as on the previous occasion.

63. In his submissions, Mr Martin made this point: R had spoken in his evidence of three specific occasions on which he was sexually assaulted by the appellant, and had also said that similar offences were committed against him once or twice a week over a three to four month period. He was charged only in respect of two occasions. That gave rise to a “latent ambiguity” as to which occasion was the subject of which count, and necessitated the giving of particulars to resolve it. But the particulars that had been provided to the defence indicated that touching on the penis, the oral sex and the sodomy reflected in counts 1 -3 respectively were acts performed on the same occasion; and that was the first occasion of sexual assault on R. In his evidence R had said that there was no sodomy on that first occasion. The particulars in relation to counts 4 and 5 suggested that it was the second occasion of abuse. The Crown had not, Mr Martin said, given any notice of intention to depart from its particulars; and the result was that the appellant was deprived of his entitlement to certainty of what he was charged with and when it was alleged to have happened. He was thus denied a fair trial on counts one to five.

64. In S v The Queen^[11] the applicant had been charged with three counts of incest, one in each of three succeeding calendar years, but only two offences were the subject of description in evidence, and neither could be placed as to time in any given one of the three years. The balance of the evidence disclosed a number of undetailed offences, none of which was identified as an offence charged. The majority in the High Court identified a number of difficulties which might arise as a result of inadequate particularisation.  The first was that of latent ambiguity; that is to say, where the evidence revealed a number of offences, any of which could fall within the description of the relevant count. Such a situation would cause embarrassment to an accused who had to defend himself in relation to a number of occasions, any one of which might constitute the offence charged.^[12]  The second was a lack of particularity in identifying the occasion of the offence, precluding an accused from raising more specific defences such as alibi.^[13]  A third problem was the risk that a jury would not be unanimous in its verdict, because different jurors might convict on the basis of different occasions as constituting the relevant offences; or worse, convict without identifying any particular occasion.^[14]  Fourthly, an accused was entitled to certainty as to the offence of which he had been convicted.  He ought, for example, to be in a position to plead autrefois convict or autrefois acquit if charged again; and that required certainty as to the conviction.^[15]    The situation confronting the applicant in S v The Queen raised all of those difficulties.

65. The present situation is rather different. The Crown relied, in seeking a conviction on counts 1-5 at the trial, on two separate occasions described in the evidence of R. The first of those, involving fondling of his penis, fellatio and sodomy, was the second occasion on which the appellant indecently dealt with him, and occurred approximately 8-10 weeks after he had been placed in the home. The second occasion relied on was placed in time about two months before the appellant’s departure from the home. It also involved fondling, oral sex and sodomy, with in addition, what R described as “big tongue kiss”. Although R alleged regular sexual assaults upon him, these were the only two incidents involving sodomy at the home of which he gave details; he described no other incidents with which these might be confused. So there was not a question of latent ambiguity, either in relation to the particulars provided or the evidence as it emerged at trial. There was no risk of confusion among the jury as to what event it was being asked to consider in relation to the first three counts, nor any risk that they would convict in respect of different things. Nor, in my view, does any question of difficulty in identifying the incidents on which the verdict was based arise for purposes of pleas of autrefois convict or acquit.

66. The real difficulty was that the particulars departed substantially from the evidence, because in his evidence R put the first occasion of sodomy later in time, and not as being the first incident of indecent dealing with him. That result might not have been completely unexpected; his evidence had differed as between his statement, in which he put the sodomy as a later and separate occasion of assault from the initial touching and oral sex, and what he said at the committal, on which the particulars of all three assaults occurring on the first occasion were based. The question is whether the appellant was prejudiced by being given a set of particulars which was not in accordance with the evidence, and which was not at any stage amended by the Crown.

67. The conflict between the particulars and the evidence was raised early on the third day of the trial, after the close of the prosecution case. Defence counsel took issue, as counsel for the appellant did here, with the failure of R’s evidence to meet the particulars of the events underlying counts 1 to 3 as occurring on the first occasion of sexual assault. Because R’s evidence, in contrast with the particulars, was now that there was only touching and oral sex on the first occasion, with no allegation made of sodomy in respect of that occasion, it was argued that count three ought to be withdrawn from the jury’s considerations.

68. Counsel for the Crown responded by saying that he had not opened his case on the basis that the sodomy occurred on the first occasion of sexual misconduct. An examination of the transcript of the opening shows that he commenced his description of R’s evidence with the events giving rise to counts 1 to 3 in these terms:

‘[R] will tell you that a night not long after he went to the [home] he was lying in his bed crying. He had been left at the home. He was nine years old. The accused as if to comfort [R] came over to his bed… ’

A description of the events of touching, fellatio and sodomy followed, consistent with the particulars. Counsel said that he outlined the incident without any reference to its being the first occasion of anything happening because he was aware that R might refer to an earlier occasion involving sexual assault. 

69. The learned trial judge took the view that because the case had been opened and conducted on the basis that counts 1 to 3 related to the first occasion when sodomy occurred, not the first occasion of any misconduct, and no objection had been taken to that course, there was no basis for withdrawing any count from the jury’s consideration.

70. In my view it behoved the Crown, if it was anticipated that R’s evidence would change in the manner it did, to do more than simply omit, in the opening, reference to the events underlying counts one to three as the first occasion. The prosecutor ought clearly to have indicated to the defence that there was a change in particulars. However, the reality was that the appellant before the trial had to prepare a defence to two particularised episodes of sexual assault at the home, each of which involved touching, oral sex and sodomy. That was in a context in which it was known from R’s evidence at the committal that he alleged other occasions of sexual assault. The only real distinction was that now the subject matter of the first three counts charges was said to have occurred not as the first instance of assault, but as a later event. It remained distinguishable from other assaults by the detail given of what occurred. In particular, it could be distinguished from the first occasion of sexual assault because it involved sodomy, and from the last occasion, particularised as giving rise to counts 4 and 5, because of the tongue kiss that R described, and because that event was said to be the last occasion of sexual assault at the home, about eight weeks before the appellant left.

71. It is difficult to see how the shift of the event founding counts 1 to 3 from the first occasion of sexual dealing, some six to eight weeks after R’s arrival in the home, to the second occasion, some two weeks after that, could in practical terms have caused any prejudice to the defence. Although I doubt that the opening made the change in the Crown case sufficiently clear, it was at least apparent before the appellant commenced his case, and before addresses, which incident was relied on as founding those counts. In those circumstances I do not think there is any basis for supposing that the appellant was embarrassed in his presentation of his defence, or that any miscarriage of justice has arisen from the departure of R’s evidence from the particulars given by the Crown.

The refusal of a stay

72. Mr Martin relied on a number of features of the case as supporting the proposition that a permanent stay should have been granted. There was a delay of between 33 and 36 years between the happening of the offences charged and the appellant’s trial. A number of persons who might have been able to give evidence for the appellant – Mr and Mrs Kirkpatrick, the home superintendents, T’s grandparents, and Ms Holmes the cook – had since died. In his statement, R had said that after the appellant left the home, he made a complaint to Mrs Kirkpatrick telling her that the appellant had been “naughty to us” and “rude to us”. On his account, he was struck across the face by Mrs Kirkpatrick and made to stand in the sun on a bitumen area over a period of three days. One of the exhibits tendered for identification was a statement from Mr Kirkpatrick taken in 1998. He was 93 years old at that time and said, in effect, that he could recall nothing of significance, and was unable to say if there had been any complaint of sexual abuse made by any resident of the home against the appellant. Mr Martin said that if the delay in charging the appellant had not occurred, he would have had the opportunity to ascertain from the Kirkpatricks the truth of R’s account of having complained; and if it proved false, would have had a significant means of attacking R’s credibility.

73. Documentary records such as RACQ, Main Roads, and Transport department records, bank records and hire-purchase agreements were no longer available. Those records might have assisted to confirm the appellant’s evidence as to when the Monaro was purchased. Records of the children’s home might have shown when T’s grandparents retired. T’s grandparents could themselves have said when they had moved from the children’s home to Redcliffe.

74. Mr Martin also pointed to the lack of specificity in the dates of the alleged defences as making an alibi difficult to investigate or establish, relying for the relevance of that aspect on The Queen v Edwin James Smith^[16].  In that case, the Court of Appeal was considering an Attorney General’s appeal against a stay granted by a trial judge on a number of bases: the length of the delay involved (almost 40 years between the commencement date of the offences and the date of the indictment) and the associated unavailability of witnesses and records, the lack of any explanation for the absence of earlier complaint and, relevantly here, the lack of specificity in the dates of the alleged defences. The trial judge’s decision to grant the stay was upheld.

75. Mr Martin relied on weaknesses in the Crown case, already explored in these reasons, and, in addition to that submission, pointed out that the Crown was placed in the advantageous position of being able to explain any inconsistencies in the evidence of its witnesses as loss of recall owing to the lapse of time. Finally, he said, there was no satisfactory explanation given for the delay between the alleged offences and complaints to the police.

76. Before the learned trial judge, the argument centred on a contention that evidence had been lost to the appellant in the form of what the witnesses employed at the home – the Kirkpatricks, Ms Holmes and T’s grandparents – might have been able to say about the frequency of the appellant’s visits to the home, and in the form of registration or insurance records for the appellant’s vehicle. Those submissions mirrored what had been put to another judge hearing a stay application in an earlier prosecution of the appellant. In addition, it was argued that the deficiencies in the evidence of R, G and T told in favour of a stay.

77. The learned trial judge, in refusing to grant a stay, said that the inconsistencies in the evidence were not such as to indicate that the Crown case was doomed to failure. Otherwise, he relied on the reasons given in the earlier prosecution for refusing a stay. Those reasons were to the effect that it was a matter of speculation, firstly, as to whether the five former employees of the home could have given evidence to support the appellant in respect of matters such as when and how often he was there and the routines followed at the home, and secondly as to whether documentary records in relation to the acquisition of the Monaro would have assisted. On the other hand, some witnesses - Mrs Hembrow and Mr Lewis - who could give evidence as to matters at the relevant time, remained available. The prejudice to the appellant of not having available the other evidence identified was not such as to warrant a stay.

78. The principles to be applied in considering whether a stay should be granted because of delay in bringing an accused to trial are generally regarded as set out in this passage from the judgment of Mason CJ in Jago v District Court (NSW)^[17]:

“The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial ... . At the same time, it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged. The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused’s right to be protected against unfairness in the course of criminal proceedings …..will generally include such matters as the length of the delay, the reasons for the delay, the accused's responsibility for asserting his rights and, of course, the prejudice suffered by the accused ... . In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare ...”.^[18]

79. Mason CJ’s reasons in Jago were referred to with approval by the majority in Walton v Gardiner^[19], which added:

“As was pointed out in Jago, the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice”^[20].

80. For the reasons I have already explored, while the Crown case was by no means overwhelming, I do not think that any weaknesses manifested were such as to be a compelling factor in favour of a stay. Nor do I think that there was a lack of specificity on the indictment comparable with that in The Queen v Edwin James Smith.  In Smith, there were three complainants of sexual assault. In respect of two of them, the offences charged were alleged to have been committed between dates four years apart (seven counts in respect of one complainant and one in respect of the other) while in respect of the third complainant, two counts of indecent dealing were charged as occurring between dates seven years apart. Here, in contrast, the offences as alleged were much more confined. Each of the first five counts on the indictment specified a 12 month period within which the offence was said to have occurred. The relevant time periods within that 12 months were further confined by the particulars, which made it clear that the events underlying counts 1 to 3 within the first couple of months of that period, while those underlying counts 4 and 5 were closer to the end of it.  Counts 6 and 7 were particularised as occurring within a six month period, after the appellant’s return from Cyprus.  The appellant was able to establish, at least in general terms, his whereabouts and activities during the periods in question. 

81. It seems improbable that the individuals identified by the defence – the Kirkpatricks, Ms Holmes and T’s grandparents – could have assisted significantly as to the occurrence of the offences or otherwise. None was suggested to have any direct knowledge of the events; at the highest, there was said to have been a relatively unmemorable complaint to Mrs Kirkpatrick that the appellant had been ‘naughty’ or ‘rude’. In relation to G’s evidence it does not seem that anything was lost by the unavailability of documentary records or witnesses, because it was common ground, as already noted, that he had been in the appellant’s vehicle and taken to the speedway in it, and that he had been to the appellant’s unit.

82. What clearly was lost to the appellant, however, was the capacity to establish with precision the movements of T by reference to where his grandparents were living and whether at the relevant time the appellant did indeed have his Monaro. In addition, as Mr Martin observed, there was the difficulty for the defence that any inconsistency or discrepancy in the Crown witness’s accounts was explicable by reference to the lapse of time. The learned trial judge did, however, give a Longman direction^[21] reminding the jury of the failure of R, G and T to complain about the incidents when they were said to have occurred, and pointing to the difficulties for the defence in being unable to explore in greater detail the surrounding circumstances. 

83. There was no suggestion that the Crown had deliberately or negligently delayed the prosecution, so as to raise the question of abuse of process, as opposed to unfairness. While there clearly was disadvantage to the appellant in the very long passage of time between the events and his being charged, I do not think that the sum of the features pointed to amount to circumstances so exceptional as to warrant a stay; and, more to the point, I do not think that any error has been identified in the decision of the trial judge to refuse one.

84. I would dismiss the appeal against conviction.