OP v Deputy Commissioner Gollschewski
[2020] QCATA 163
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- OP v Deputy Commissioner Gollschewski[2020] QCATA 163
- Add to List
OP v Deputy Commissioner Gollschewski[2020] QCATA 163
OP v Deputy Commissioner Gollschewski[2020] QCATA 163
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | OP v Deputy Commissioner Gollschewski [2020] QCATA 163 |
PARTIES: | OP (applicant/appellant) |
v | |
DEPUTY COMMISSIONER STEVEN GOLLSCHEWSKI (respondent) | |
APPLICATION NO/S: | APL296-19 |
ORIGINATING APPLICATION NO/S: | OCR005-16 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 18 December 2020 |
HEARING DATE: | 26 October 2020 |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member D J McGill SC |
ORDERS: |
|
CATCHWORDS: | POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – appeal from decision of Tribunal upholding findings of sexual abuse of son and breach of bail condition – whether errors of law in reasoning of Member – decisions set aside – whether to grant leave to appeal to allow rehearing to expedite finalisation of review – on rehearing, charges not substantiated. Briginshaw v Briginshaw (1938) 60 CLR 336 Commissioner of Police v Al Shakarji [2013] QCA 319 Fox v Percy (2003) 214 CLR 118 McDonald v Queensland Police Service [2017] QCA 255 R v OP [2011] QCA 323 Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 Rowe v Kemper [2009] 1 Qd R 247 |
APPEARANCES & REPRESENTATION: | |
Applicant: | M Black, instructed by Gilshenan & Luton, solicitors |
Respondent: | S A McLeod QC, instructed by Police Service Solicitor |
REASONS FOR DECISION
- [1]This is an appeal from the decision of a Tribunal Member on 11 October 2019 in a Police disciplinary matter. The appellant had been charged with official misconduct, constituted by five matters, which had all been upheld by the respondent, and had applied to the Tribunal to review that decision. The Tribunal set aside the decision of the respondent in respect of matters 2 and 3, confirmed the decision of the respondent in respect of matters 1, 4 and 5, and confirmed the decision of the respondent that the applicant be dismissed from the service. The appellant in this appeal challenges the decisions of the Tribunal in respect of matters 1 and 4.
- [2]Matter 1 alleged sexual activities with his son who was then under the age of sixteen. The matter was particularised as mutual masturbation within a period of some months, and having his son masturbate him within a longer, overlapping period.
- [3]Matter 4 alleged that, while suspended, he breached bail conditions. The matter was particularised as having abused and threatened a witness on a particular day, in breach of a condition not to have contact with witnesses, including that one.
- [4]The Tribunal noted correctly that the standard of proof in the matter was the Briginshaw standard, where the seriousness of the allegation made affected whether the allegation had been proved to the reasonable satisfaction of the Tribunal.[1] Obviously enough, matter 1 was a very serious allegation indeed.
Background facts
- [5]There was some background to these matters. The appellant was a serving police officer in June 2010 when he was charged with a number of sexual offences involving the son. The matter went to trial in March 2012 on an indictment alleging five counts, with the jury convicting the applicant of three counts, and acquitting of two. On appeal, the court set aside the guilty verdicts on the ground of an incorrect direction by the trial judge, and, by majority, ordered a retrial on the three counts. That was never held, as the son withdrew his cooperation.
- [6]The decision of the Court of Appeal is interesting.[2] The principal judgment was that of McMurdo P, with whom Muir JA agreed, who analysed the evidence in detail, to consider whether the verdicts were inconsistent, and whether the verdicts were unreasonable and could not be supported having regard to the evidence. Her Honour said that the latter question was “especially difficult.” Her Honour listed at [76] a number of difficulties in the complainant’s evidence, which she said was unsupported by other evidence, and at [80] noted that the prosecution case had many difficulties. Her conclusion at [77] was put in the following terms:
As the appellant has demonstrated, there were weaknesses in the prosecution case and flaws in the complainant's evidence, but it was a question for a properly instructed jury to determine whether the appellant was guilty or not guilty on each count. After carefully reviewing the whole of the evidence, I am persuaded that it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt.
- [7]Chesterman JA dissented, and held that on the evidence a jury acting reasonably could not have been satisfied beyond reasonable doubt of the appellant’s guilt on those counts. He said at [86]:
I am not persuaded that the complainant’s persistence in his testimony at trial with an account which supported the convictions overcomes the earlier demonstrated unreliability of his testimony. This is, I think, one of those cases in which the jury has been persuaded by the demeanour of the witness and have not paid attention to the objective indications of unreliability in the evidence.
- [8]The appeal to me was brought on the ground of error of law, or in the alternative, leave was sought to appeal on a question of fact, or mixed fact or law, in respect of each of matters 1 and 4. There was no appeal in respect of matter 5. In the case of an appeal on the former ground, there is a right of appeal, and the appeal is an appeal in the strict sense.[3] Leave is otherwise required to appeal, but if it is granted, it is an appeal by way of rehearing.[4] I decided to consider first the appeal on a question of law.
Question of Law – Matter 1
- [9]The first matter raised was that the Member had erred in law in that, having found that uncharged allegations of physical abuse were simply a factual history, took them into account as supporting the complainant’s assertions of the particularised matters of sexual misconduct relied on. In the alternative, it was argued that, in circumstances where the respondent’s written submissions had not sought to rely on the allegations of physical abuse, the Tribunal had denied the applicant procedural fairness in taking them into account.
- [10]The Member in his reasons referred to the evidence, noted that the allegations arose at a time of significant matrimonial disharmony between the applicant and his then wife, and then worked through numerous criticisms against the complainant’s credibility. For example, it was noted that there were internal inconsistencies in his accounts, but it was said that, as the evidence in the courts[5] was given many years after the events, some inconsistencies were understandable, and did not necessarily mean that the evidence was untruthful. Other matters were treated the same way, or minimised, although one was said to be certainly worthy of consideration.
- [11]The Member said that there were clear red flags indicating that something untoward was going on in the household, and allegations in the broader context have been consistent and ongoing: [54]. These were presented as factors supporting the complainant’s credibility, but all they show is that he had been complaining about his father in some respect or other for a long time. They do not really provide any support for the reliability of specific allegations of sexual abuse as particularised. What was not mentioned in this context was that, after the charged conduct was alleged to have occurred and after the parents separated, the complainant chose to live with the applicant, and moved out only some months later after an argument. That strikes me as a factor relevant to the complainant’s credibility.
- [12]The Member then said that the absence of direct corroboration was unsurprising if the complainant’s evidence about the overall relationship was accepted, as he did: [56]. The relationship between the acceptance of the evidence about the overall relationship and the absence of corroboration is not obvious, although it is certainly true that, in most allegations of sexual offences, there is no direct corroboration of the complainant’s allegations. There was then a finding that the appellant was in a position of influence and dominance over the complainant in his formative years, but that is hardly corroboration.
- [13]The member then said that he was satisfied to the requisite standard that the incidents as alleged occurred: [57]. Accepting that the complainant had stuck to his account during the trial, despite a long cross-examination, there is nothing in the reasons explaining why his evidence was regarded as sufficiently persuasive for this, despite the various objective difficulties with his credibility, unless his account was regarded as being supported by his “evidence … about the overall relationship.” There is nothing unusual in a father being in a position of influence over his son, and so this must have been based on that aspect of the relationship which gave rise to a position of dominance. The only aspect of the relationship discussed by the Member was the “constant theme of physical abuse” [44], and accordingly as I read the reasons the Member must be saying that he regarded the complainant’s allegations of physical abuse as supporting his allegations of sexual abuse. If that were not the case, the Member has failed to explain the reasons why he accepted the evidence of the complainant despite the various objective difficulties with it, which is also an error of law. Accordingly the decision in relation to matter 1 cannot stand.
Question of Law – Matter 4
- [14]As to Matter 4, the decision was challenged on the basis that the Tribunal approached the matter on the basis of deciding whether the witness or the appellant was telling the truth, and on the basis that the reasoning that the allegation would not have been made unless it was true was illogical or legally impermissible.
- [15]The Member noted that the issue was whether the appellant had made any such threat or comment as alleged by the witness: [81]. The Member referred to the evidence, including that some other persons in the vicinity interviewed by the police had not corroborated the witness’s statement, and explained his conclusions in the following paragraph:
It would be quite extraordinary for her to raise such a serious allegation without any substance to it. I also observe that the applicant’s reaction, on seeing [the witness] (according to her) is consistent with his behaviour when he was convicted of the indecent dealing charges involving [the son]. Furthermore, in view of my findings about the applicant’s overall credibility, in so far it was relating to [the son], I am prepared to accept [the witness’s] evidence on this point in preference to the applicant’s.
- [16]There are several problems with this reasoning. The last sentence seems to say that the Member is taking into account his general doubts about the credibility of the appellant in deciding whether to accept the evidence of the witness. The credibility of the witness is independent of the credibility of the appellant, and this sentence suggests that the Member did approach the decision on the basis that the issue turned on which witness was more credible. That is not the correct approach. The issue is whether the evidence supporting the allegation is sufficiently credible to satisfy the Tribunal, on the relevant standard, that the charge is proved, notwithstanding the evidence of the appellant denying the allegation.
- [17]A further problem is that the Member was treating the behaviour of the appellant in relation to Matter 5, not the subject of an appeal, as a kind of similar fact evidence; but the circumstances were really quite different, and the fact that the appellant reacted aggressively and inappropriately when convicted of a number of offences does not provide any logical support for his having behaved aggressively on an earlier occasion simply because he happened upon a witness.
- [18]The mere fact that the allegation was made does not in itself provide any support for it. That would always be the case with anyone who makes any allegation, and has never been regarded as providing logical support for the allegation. Such reasoning contains elements of reversing the onus of proof, and suggests that there was some obligation on the appellant to explain why the witness would have made a false allegation. Finally, there was no analysis of the significance of the evidence of the lady in the newsagency, who gave some evidence supporting the witness (fresh complaint and visible distress) and some evidence supporting the appellant (did not hear any yelling at the relevant time). Where there is a conflict of evidence, any objective or independent evidence should not be ignored.
- [19]Overall therefore there were several errors of law in the reasoning of the Member leading to the conclusion that Matter 4 had been substantiated. That decision also cannot stand.
Application for leave to appeal
- [20]It then becomes a matter of deciding what to do with the appeal. If on the evidence before the Member it would have been open to him properly to be satisfied of the charge, on the relevant standard, then on the face of it the matter should go back for a re-hearing, but it seems to me that there are good practical reasons why that course is not appropriate in this case. First, there is also an application for leave to appeal on a question of fact. If leave is given, the appeal proceeds by way of rehearing, and my decision supersedes that of the Member; otherwise, the matter has to go back for another “hearing”, with more delay and expense to the parties. If I have to consider the material to decide if it was open to the Member to be satisfied on Matter 1, I might as well consider the evidence on a re-hearing. Further, I am in as good a position to decide each matter as was the Member, as the decision was made on the basis of written materials, all of which are also before me.
- [21]In these circumstances, I propose to grant leave to appeal under s 142(3)(b), without considering the ordinary test for leave to appeal, on the basis that, having decided that there was an error of law in respect of the decision on each of the matters under appeal, this is the most convenient and efficient way in which to bring this dispute to a conclusion.[6] On an appeal by way of rehearing, it is necessary for me to come to my own conclusion on disputed matters of fact, on the basis of the evidence before the Tribunal.[7] In doing so, I should have regard to the particular expertise of the respondent in reaching his decision, although that is not of the same significance where the matters in issue are whether or not particular events happened at all, rather than matters involving police operations and processes. Here the essential questions are whether the relevant events happened at all. The respondent did not have the advantage of having seen and heard directly the relevant witnesses.
- [22]At the hearing, I foreshadowed that Matter 4 would have to go back for rehearing. Having arrived at this different conclusion, I invited the parties to provide further submissions in relation to the rehearing of matter 4.
Matter 1
- [23]This was particularised as, first, coercing the son to masturbate him, and also masturbating his son, on a bed in his bedroom, on a date unknown between 12 February 2001 and 31 July 2001. This corresponded to count 6 on the criminal indictment, except for the closing date of the period alleged, one of the counts on which the appellant was originally convicted. Second, as coercing his son to masturbate him at their residence on a date unknown between 30 October 2000 and 22 July 2002. This corresponded to count 7 on the criminal indictment, except for the opening date of the period alleged, another count on which the appellant was originally convicted.[8] The son was born on 4 March 1988,[9] and was thirteen in March 2001.
- [24]As the Court of Appeal pointed out, the complainant gave evidence in support of these allegations at the trial,[10] and at the committal, and persisted in his account despite cross-examination. There was no other evidence which corroborated his account in respect of either matter. There were, however, a number of considerations relevant to the credibility of the complainant which emerged from the evidence.
- [25]In early 2004 the complainant spoke to a behaviour management teacher at his school, and complained about his father, eventually referring to sexual abuse, but not providing details, although speaking in a way which implied anal intercourse, not something the appellant has been charged with.[11] He also claimed he had been sexually abused when he was two by two boys who were neighbours, later by a friend of a cousin, by his grandfather,[12] and later again by another boy at school,[13] and by a boy who lived next door. In March 2004 he spoke to police about physical abuse by the appellant, but did not mention sexual abuse.
- [26]In 2008 the teacher told police the complainant had made a specific allegation of anal rape by the appellant,[14] and said that the appellant had made him have sex with his younger sister.[15] The appellant was not charged with this. The complainant also claimed he had been sexually abused by others, including a female cousin.[16]
- [27]In his first statement to police about the offending in June 2008, the complainant said that he was required to do sexual things to the appellant, but that there were “never sexual acts which were done” to him. That was inconsistent with his evidence of the first particular, and of other charges in the criminal trial. His explanation was that he did not want to be speaking to police at that time, and just wanted to get out.[17]
- [28]The complainant’s mother said that the complainant had told her in 2004 that the appellant had also sexually abused a female cousin, and that he had forced the complainant to take part in such abuse.[18] Police spoke to the cousin, who rejected the allegation, and denied any sexual abuse by the appellant.[19] This could have been an invention by the mother; the complainant denied detailed discussion with his mother of the respondent’s abuse.[20] But the complainant told police that in June 2004 he received a text from the cousin, and showed police what he said was a transcription of the text. The cousin denied the text, and an investigation of phone records did not reveal any text from the cousin’s phone to the complainant’s phone at that time.[21] The probable explanation is that the text was fabricated by the complainant.
- [29]After the complainant’s parents separated in Brisbane another man moved in with his mother, and later became his stepfather. His arrival produced a severe reaction, in that a lung collapsed, and he required hospitalisation, although he had a pre-existing medical condition which made him prone to this.[22] While in hospital he saw a female psychiatrist, and “thought” he mentioned something about sexual abuse in a round-about way to her,[23] although she said he made no complaint of sexual abuse by his father, just physical abuse.[24] The complainant did not allege physical or sexual abuse by the stepfather, and did not recall telling him of the father’s sexual abuse,[25] but the stepfather in evidence said that on one occasion when he asked the complainant directly if his father had sexually abused him, the answer was yes, but no details were provided.[26]
- [30]The complainant had a history of concerning behaviour, including problems with anger management, being violent and destructive in the home, fighting at school, and self-harming; he became involved in “goth” culture, and cross-dressing. At one stage he was excluded from school for threatening younger students with a knife. It was after this that he was speaking to the behaviour management teacher.[27] Such behaviour could have followed sexual abuse, but does not prove any particular abuse, by a particular person, in circumstances when the complainant has spoken of being abused by a number of people. Some of it occurred before the two events covered by the particulars.
- [31]There were other inconsistencies between the evidence of the complainant and the evidence of other witnesses. The complainant said that, after the commission of one of the offences charged, of which the appellant was acquitted at the trial, he had run to his grandmother’s house, where he broke in because she was not home, and was later collected by his mother; he did not remember seeing the grandmother that day.[28] The grandmother said she was at home on one occasion when the complainant turned up, complaining that the appellant had been hitting him; she arranged for his mother to collect him. There were no complaints of sexual abuse.[29] Certain details indicated that this was the same occasion, and the mother gave evidence of having collected him, and saw marks of injury on him, but he made no complaint of sexual abuse to her. She took him to a doctor, who was called, and who said that there were no complaints to him of physical or sexual abuse, and the consultation developed into a discussion of acne. There were also significant difference between his account of the incident and the evidence given by his mother, his sister, and the doctor.[30]
- [32]The physical abuse of the complainant was treated by the Member as providing some support for his complaints of sexual abuse, but as McMurdo P said at [76], this gave him good reason to dislike the appellant, so there was a motive for a false complaint. One mater which her Honour noted (at [57] and [77]) was that the appellant did not give evidence denying the charges, although in the criminal trial the appellant had by his plea denied that he committed the offences. In this respect the situation here is different, in that there is in the material an interview with the appellant, where he answered under direction, and in which he denied that the incidents in the particulars occurred.[31]
- [33]There is also the consideration that, after the relevant abuse and the earlier sexual abuse the subject of criminal charges, and indeed after all the physical abuse, some time after the parents separated the complainant went in July 2002 of his own volition to live with the appellant. The complainant attributed this to a poor relationship with his mother, but he did not suggest she was violent to him, or that there was any abuse by the stepfather. That strikes me as very odd behaviour if he had been sexually abused in the past, particularly in the violent way described by him in the incident which was count 5 on the indictment. Finally, the allegations were made in the context of an acrimonious family law dispute between the appellant and his former wife.[32]
- [34]Overall I consider that there are so many objective indications of unreliability in the evidence of the complainant that I cannot feel a reasonable satisfaction that either of the two incidents in the particulars of the first matter have been proved, bearing in mind the serious nature of the allegations. Accordingly the adverse finding in respect of Matter 1 should be set aside.
Matter 4
- [35]This related to a breach of a bail condition, that the appellant not have contact with certain witnesses, including a woman with whom he had been in a relationship in the period 2003 to 2007.[33] She was a preliminary complaint witness.[34] The two of them came together briefly in the central business district of a country town in March 2010. The witness said that she had paid rent at a real estate agent, then entered a gift shop nearby, and when she left that shop, the appellant was outside and he swore at her, and threatened to get her.[35]
- [36]The witness said she ran to where her motorcycle was parked as her yelled at her, and from there telephoned someone, and then saw the appellant walking off towards a bank. He then turned around, walked past the gift shop to an ATM, used it, then walked past three other businesses to a newsagency. He was there for a while, then he began to walk to the bank again. She then saw him crossing the road. She went to the newsagency and spoke to a friend who worked there, who said she had seen the appellant in the shop. The witness then went to her motorcycle, and went home.
- [37]The appellant admitted that there was a chance encounter, but said that it was unintentional, and he had business in the town that day. He denied that he said anything to her. He said he saw her watching him from a distance for some time, while talking on her phone, but they did not speak to each other.
- [38]The officer who investigated this incident was unable to locate anyone who could confirm hearing yelling at the relevant place and time, although several people recalled seeing the witness standing beside her motorcycle for an extended period, talking on her mobile phone. None of them said they recalled hearing any yelling. The lady in the newsagency to whom the witness later complained recalled that the appellant had been in the newsagency, but did not recall hearing the yelling. She said that from experience she would have expected to have heard yelling in the area described by the witness. She described the witness as shaking and looking shaken; she did not recall the appellant being anxious, upset or nervous at any stage, but he was looking out of the shop a lot.[36] One person spoken to said she went outside her premises to retrieve a sign at about the time when, according to the witness, the incident was occurring, and did not recall hearing any yelling, or seeing a person like the appellant in the vicinity.
- [39]In a statement the appellant made to police on 12 June 2010 he detailed what he said were a series of hostile incidents towards him from the witness. He also set out a detailed account of the incident, during which he said the witness was beside her parked motorcycle talking on the phone for an extended period of time.
- [40]The respondent submitted that the evidence of the witness was reliable and cogent. It is true that there was a prompt complaint to the lady in the newsagency, who noted her demeanour, which supports her version. On the other hand, neither that lady nor any others in the nearby businesses recalled hearing any yelling of the kind described by the witness. A number of witnesses recalled seeing the witness standing beside her motorcycle for an extended period of time, which is common to both accounts. That strikes me as odd behaviour if she had just had a frightening experience; I would have expected her to be on her bike and away if such a thing had occurred.
- [41]Given the prior relationship between them, which ended acrimoniously, the witness might well have had a motive to make a false complaint against the appellant. It is possible that the yelling was of such short duration, or of limited volume, that the nearby business people did not notice it, but that seems to me unlikely, particularly in the case of the lady in the newsagency, where the complaint from the witness should have jogged her memory of any yelling only some minutes earlier. In those circumstances, that she did not hear yelling is of more significance.
- [42]This incident, if it occurred, was also a criminal offence, although a much less serious one than those the subject of Matter 1. Nevertheless, the Brigenshaw considerations still apply, and again, having considered all the available material, I do not feel a reasonable satisfaction that this incident occurred in the way described by the witness. I accept that what occurred was no more than a chance meeting, where the appellant sought to avoid contact, and the witness remained in the vicinity for an extended period of time. In those circumstances, I do not consider that that amounted to a breach of the bail condition, not to have contact with the witness. Accordingly the adverse finding in respect of Matter 4 should also be set aside.
Conclusion
- [43]There remains the adverse finding in respect of Matter 5, which was not the subject of an appeal. As the only surviving adverse finding, it is not clear whether it justifies the conclusion that the appellant should be dismissed from the police service. The respondent made a finding that, in respect of each matter, the appellant should be dismissed from the service, but it is clear that the consideration of the Member of the issue of sanction was by reference to all matters substantiated. It follows that the parties should provide submissions as to the question of sanction, before this matter can be finalised, either by my deciding it, or by remittal to a Tribunal Member.
Footnotes
[1] Briginshaw v Briginshaw (1938) 60 CLR 336, 362.
[2] R v OP [2011] QCA 323.
[3] Queensland Civil and Administrative Tribunal Act 2009 s 142(1), s 146.
[4] Ibid s 142(3)(b), s 147.
[5] Oral evidence was given by the son in the Magistrates Court and the District Court.
[6] The Act s 3(b); s 28(3)(d).
[7] Fox v Percy (2003) 214 CLR 118 at [22] – [25]; Rowe v Kemper [2009] 1 Qd R 247 at [3] – [5]; Commissioner of Police v Al Shakarji [2013] QCA 319 at [7]; Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 at [43], [57]; McDonald v Queensland Police Service [2017] QCA 255 at [47]
[8] The other counts, as particularised in the indictment, occurred before the appellant began to train as a police officer. He was sworn in on 23 May 2001: affidavit of appellant 28 April 2010 p 2, HB 1964; Police Service Profile, HB P18. (I am using HB to refer to the page number in the hearing book.)
[9] Statement of mother HB 379; transcript of evidence p 3-69, HB 1240.
[10] First event transcript p 2-23, HB 1139; second event transcript p 2-23 24; HB p 1139, 1140.
[11] Trial transcript p 3-35, HB 1206.
[12] At the trial he agreed he said this: transcript p 3-53, HB 1224.
[13] At the trial he agreed he said this: transcript p 3-42, HB 1213.
[14] The complainant denied at the committal that this occurred, and that he said this to her. See also trial transcript p 3-37, HB 1208.
[15] The complainant denied that he said this to her: trial transcript p 3-38, HB 1209. It strikes me as quite unlikely that the teacher would make up such complaints, or confuse them in some way. This sister also denied any sexual abuse by the appellant, at the committal: Transcript p 5-75; HB 985. See also statement of sister, HB 373.
[16] He said at the trial there had been something like that happen, and that it would have come up when he spoke to the teacher, but denied he said “abused”: trial transcript p 3-37, HB 1208.
[17] Trial transcript p 3-24; HB p 1195.
[18] Committal transcript p 1-42; HB 629.
[19] Internal police email 19 August 2004, HB 318.
[20] There was however a reference by the complainant to abuse by a female cousin to the teacher, according to her, as discussed.
[21] Police file note 19 January 2010, HB P98.
[22] Statement by general practitioner, HB 272.
[23] Court of Appeal judgment [21].
[24] Court of Appeal judgment [46], [47].
[25] Court of Appeal judgment [25].
[26] Court of Appeal judgment [40], [41].
[27] Court of Appeal judgment [21], [22].
[28] Court of Appeal judgment [6], [18].
[29] Court of Appeal judgment [44], [45]. In the complainant’s interview with police in 2004, he said he told his grandmother of the physical abuse, but at the trial he had no recollection of this: trial transcript p 3-58, HB 1229.
[30] Court of appeal judgment [73].
[31] Transcript of Interview 27 March 2009, HB 397 +.
[32] Affidavit of appellant 18 April 2010 para 16; HB 1964. Allegations of sexual abuse were made in the family law proceeding: para 19. See also Report of Ethical Standards Command of 12 November 2004 para 4, HB P145.
[33] Affidavit of appellant 18 April 2010 para 23; HB 1965; statement of witness 31 March 2010 para 2, HB 1971.
[34] Statement of witness, HB 390 +.
[35] Statement of witness 31 March 2010, HB 1971-4.
[36] She also provided a signed statement to the appellant’s solicitor in 2014, in which she added details.