R v Hore - [2010] SASCFC 60

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HORE
[2010] SASCFC 60
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice White and The Honourable Justice Kourakis)
25 November 2010
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - GENERAL PRINCIPLES
CRIMINAL LAW - EVIDENCE - CREDIBILITY - GENERALLY
Appellant convicted following trial by Judge alone in the District Court of one count of aggravated indecent assault - circumstance of aggravation was that the complainant was a person under the age of 14 years - number of uncharged acts alleged, conclusion that those allegations had been proved beyond reasonable doubt - where inconsistencies arose on the evidence - whether trial Judge failed to identify a basis to reject the evidence of the appellant's father which supported the appellant - appeal on the basis that verdict was unsafe and unsatisfactory.
Held: appeal dismissed.
(Gray J, White J agreeing) Trial Judge carefully addressed the inconsistencies which arose in the complainant's evidence - trial Judge entitled to accept evidence of some witnesses and reject that of others - no error demonstrated.
(Kourakis J) Discussion regarding role of the appellate court - the inconsistencies relied on by appellant leave no doubt about guilt - trial judge enjoyed forensic advantage which is capable of dissipating any concern arising on the face of the transcript alone - the verdict was supported by the evidence.
Criminal Law Consolidation Act 1935 (SA) s 56, referred to.
R v Hore [2010] SADC 72; Libke v The Queen (2007) 230 CLR 559; M v The Queen (1994) 181 CLR 487; R v Weetra [2004] SASC 337; R v Shueard (1972) 4 SASR 36; R v C [2006] SASC 334; R v Nguyen [2010] HCA 38, considered.

R v HORE
[2010] SASCFC 60
Court of Criminal Appeal Gray, White and Kourakis JJ
GRAY J.

This is an appeal against conviction.
Following a trial before a Judge alone in the District Court, the defendant and appellant, Darryl Martin Hore, was convicted of the offence of aggravated indecent assault contrary to section 56 of the Criminal Law Consolidation Act 1935 (SA). The circumstance of aggravation alleged was that the complainant was a person under the age of 14 years.
Initially two grounds of appeal were advanced. First, it was said that the trial Judge had made a finding of fact that was not open on the evidence. Second, it was contended that in all the circumstances, the verdict of guilty was unsafe and unsatisfactory. Permission to appeal was granted primarily on the basis of the matters asserted in the first ground of appeal. On the hearing of the appeal, this ground was abandoned as a discreet ground. It was said that the particular complaints advanced under that ground were to be treated as being subsumed under the ground that the verdict was unsafe and unsatisfactory. The appeal proceeded on this basis.
It is appropriate to outline immediately the role of an appellate court when faced with an argument that a verdict is unsafe and unsatisfactory. The High Court in Libke[1] reiterated the test that had been espoused in M[2] in the following terms:[3]
…But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there is material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. …
[Footnote omitted]
Both counsel accepted that this was the test to be applied by this Court in the resolution of this appeal. It is to be further observed that in order to establish that a verdict is unreasonable or that it cannot be supported by the evidence, it is not enough for an appellant to show that the evidence is open to criticism.[4] The general principles referred to above are not affected by the fact that the defendant in this case was tried by Judge alone.[5]
[1]    Libkev The Queen (2007) 230 CLR 559 at 596-597.
[2]    M v The Queen (1994) 181 CLR 487 at 492-493.
[3]    The approach set out in M, was again affirmed by the High Court in R v Nguyen [2010] HCA 38 at [33] (Hayne, Heydon, Crennan, Keifel and Bell JJ).
[4]    R v Weetra [2004] SASC 337 at [28] citing R v Shueard (1972) 4 SASR 36 at 39.
[5]    R v C [2006] SASC 334 at [17].
At trial in the within proceeding, it was the prosecution case that the defendant committed the offence of indecent assault against the complainant, a 13 year old boy. The prosecution’s case included evidence from the complainant and his mother. Additionally, the record of the police interview of the defendant was tendered. The defendant was a friend of the complainant’s mother and because of tensions in the home, the complainant had gone to stay with the defendant. The defendant lived in his father’s home. The charged act was said to have been committed at that home between 1 July and 31 November 2007. The defendant was 29 years of age at the time. It was the prosecution case that the defendant engaged in an act of masturbation of the complainant.
The prosecution also led evidence of uncharged acts, which included the defendant massaging the complainant’s legs, masturbating him and attempting to put his finger into the complainant’s anus. There were other occasions alleged when the defendant would talk with the complainant about sexual matters. It was further alleged that the defendant connived to have the complainant dry himself while naked in front of a heater which was in such a position as to be exposed to a video camera, and finally, that the defendant gave or lent the complainant a mobile telephone on which there was homosexual pornography and pictures of shirtless youths known to the defendant.
The complainant’s evidence was that the charged act as well as the uncharged conduct took place in a bedroom occupied by the defendant. The complainant’s evidence was that he slept in that bedroom for some time. This assertion was supported by the complainant’s mother. She spoke of “tucking” the complainant into bed in the defendant’s bedroom on a number of occasions.
The defence case was that no acts of indecency charged or uncharged had occurred at all. The defendant denied the allegations in the course of the police interview. The defendant elected not to give evidence. However, he called his father as a witness in his defence. The defendant’s father gave evidence that he and the defendant resided in his home and that he was living there throughout the time that the complainant was residing there. His evidence was that the complainant did not sleep in the bedroom of the defendant.
On the defence case, it appeared to be acknowledged that the complainant did dry himself after showering by a heater in the defendant’s bedroom and that there was a video camera set up in the direction of the heater. However, it was denied that any recording took place of the complainant at any relevant time. Further it appears to be acknowledged that at some time the defendant gave or lent a mobile telephone to the complainant.
The Judge in the course of his reasons addressed the question of evidence of complaint and the delay that had occurred, in terms that accorded with the provisions of the Evidence Act 1929 (SA).[6]No complaint was advanced in respect of either direction.
[6] See in particular sections 34M and 34CB of the Evidence Act 1929 (SA).
The Judge in his reasons carefully reviewed the evidence led by the prosecution and in particular, discussed the issues on which the complainant was cross-examined. The Judge then proceeded to his analysis of the defence case. Again, there was no complaint about the Judge’s summary of the evidence.
The Judge in the course of his reasons made it plain that he did not consider that the demeanour of any of the three principal witnesses - the complainant, his mother and the defendant’s father - was of assistance in determining their truthfulness. It necessarily follows from this conclusion that the Judge found nothing adverse in the demeanour of any of those witnesses. There was no criticism of the complainant or his mother in respect of any aspect of their demeanour. Equally it may be said that there was nothing adverse about the demeanour of the defendant’s father in the giving of evidence. However, the Judge still retained the advantage of having heard the evidence unfold and having been in a position to understand the evidence in its context together with all the nuances of the trial. Although this Court on appeal is not confronted by a finding of adverse demeanour, it is still to be acknowledged that the trial Judge retained the advantage outlined above.
The Judge accepted the evidence of the complainant. The Judge took the view that there was an inherent likelihood in the account given by the complainant. He was impressed by the detailed evidence led by the complainant, both of the charged conduct and the events which were said to surround it. The Judge concluded that the charged act was linked to the occasion when the defendant gave or lent the complainant a mobile telephone. Both the complainant’s mother and the defendant’s father saw the complainant with a mobile phone. The Judge considered the gift of the mobile telephone to be an unusual allegation to have been made if not true. The Judge noted that the mobile telephone could have been handed over for quite innocent purposes.
It is not necessary to set out in full the Judge’s approach and findings, but the following should be noted. The Judge found the evidence of the complainant about the contents of the mobile telephone, that is, showing homosexual pornography and pictures of youths, and his evidence about the deletion of that material, as being convincing. The Judge further found the complainant’s evidence of the uncharged acts to be convincing, in particular because of the detail set out in his evidence. The Judge addressed in turn the inconsistencies alleged by the defence to arise on the complainant’s evidence. He carefully analysed those inconsistencies and found that none affected the complainant’s credibility or reliability in regard to the primary allegations.
The Judge considered each of the uncharged acts and reached the conclusion that these allegations had been proved beyond reasonable doubt. From this body of evidence he drew the conclusion that the defendant had a sexual interest in the complainant.
Both at trial and on appeal the defence emphasised what were said to be discrepancies or inconsistencies in the evidence of the complainant about having slept in the defendant’s bedroom. The Judge analysed this evidence with great care. The Judge considered, in my view correctly, that the evidence of the complainant’s mother confirmed that the complainant had slept in the defendant’s bedroom at relevant times. It was submitted both at trial and on appeal that the evidence of the father of the defendant was telling, as his evidence directly contradicted the evidence of the complainant on this topic. It was said that at the very least, the father’s evidence gave rise to a reasonable hypothesis consistent with innocence. The Judge rejected the evidence of the defendant’s father in this respect.
On appeal it was complained that the Judge had failed to identify a basis to reject the evidence of the defendant’s father. The following paragraph of the Judge’s reasons was the subject of close analysis on the appeal:[7]
Nevertheless I find B’s evidence of his sleeping in the accused bedroom compelling. It is confirmed by his mother. There did not appear any inconsistency in her evidence. B’s evidenced is enhanced by the detail it contained. It appears plain he was accustomed to being in the accused’s bedroom. He said that after his shower he would dry off in front of the heater in the accused’s bedroom. He would be naked. The accused told the police that. The accused added that he had told B not to do that. (That proposition was not put to B.) The camera was in the accused’s bedroom. The accused told the police about that. While being accustomed to being in the accused’s bedroom is not the same as sleeping there, I find that the evidence of the heater and the camera tends to support B’s evidence of sleeping in the accused’s bedroom for part of the time during his stay. I reject the father’s evidence in that respect. I do not necessarily conclude that he was lying. It is unclear from B’s evidence how long he slept in the accused’s bedroom. He may have spent longer sleeping in the spare bedroom. It would certainly be remarkable if the accused’s father was not aware where B was sleeping. It would ordinarily not be the sort of thing he would forget about. Nevertheless these are possible explanations for the father’s evidence apart from lying. I am satisfied that B is telling the truth when he says that he slept for part of his stay in the accused’s bedroom.
[Emphasis added]
[7] R v Hore [2010] SADC 72 at [59]. It is this finding that was the subject of the initial appeal ground 1.
In my view the approach taken by the Judge in the above paragraph and the conclusion there reached, was open to him. The Judge pointed to the fact that the complainant’s evidence about the length of the period during which he slept in the defendant’s bedroom was unclear. Although not satisfied that the defendant’s father was lying, the Judge considered that his evidence should be rejected. As set out above, the Judge considered that there were other explanations for the father’s evidence, apart from lying. It is apparent that one of the explanations that the Judge had in mind was mistaken memory. An alternative possibility would be innocent reconstruction borne out of an unconscious attempt to assist or protect his son.
In my view the appeal should be dismissed. The Judge was entitled to accept the evidence of some witnesses and reject that of others. The Judge in the present case did so and provided clear and cogent reasons for his acceptance of the complainant’s evidence. The acceptance of that evidence necessarily provided a clear basis for being satisfied that each of the elements of the charged offence had been established. The submission that the Judge’s verdict was unsafe or unsatisfactory should be rejected.
Conclusion
I would dismiss this appeal.
WHITE J. I agree that the appeal should be dismissed for the reasons given by Gray J.
KOURAKIS J: The appellant was convicted of one count of aggravated indecent assault following a trial by judge alone. He appeals on the ground that the verdict was unreasonable. The appellant contends that inconsistencies between the complainant’s testimony and his earlier statements, and between his testimony and the testimony of other witnesses, render the conviction unreasonable. Before turning to the evidence I wish to make some observations on the nature of the unreasonable ground which arise out of the trial Judge’s observation that the demeanour of the witnesses did not assist in determining their truthfulness.
In Libke v The Queen[8] Hayne J (with whom Gleeson CJ and Heydon J agreed) framed the question for an appellate court, considering a challenge to a conviction on the ground of unreasonableness, in this way:
[W]hether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[9] Emphasis in original. Citation omitted
[8] (2007) 230 CLR 559.
[9] Libke v The Queen (2007) 230 CLR 559 at [113].
That passage equates the tests posed by both the majority and minority in M v The Queen.[10] The critical difference between the majority[11] and minority[12] judgments in M is the significance of the existence of a doubt experienced by the appellate court. On the test proposed by the majority if the appellate court entertains such a doubt, the verdict is unreasonable unless the jury’s advantage in hearing the testimony is capable of resolving the doubt.[13]
[10] (1994) 181 CLR 487.
[11] (1994) 181 CLR 487 at 494-5 per Mason CJ, Deane, Dawson and Toohey JJ and at 508 per Gaudron J.
[12] M v The Queen (1994) 181 CLR 487 at 501-2 per Brennan J and at 525 per McHugh J.
[13] M v The Queen (1994) 181 CLR 487 at 494-5.
The articulation of the test for appellate intervention on the unreasonable ground in M must be understood in the context of the forensic issues at M’s trial, where both the complainant and the accused gave evidence. The application of the single “fused” test stated in Libke may be problematic where the jury could not have derived any benefit from hearing the witnesses because, for example, the prosecution case was almost entirely dependent on circumstantial evidence. In such cases, which will be rare, applying the test of the majority in M, a doubt held by the Court of Criminal Appeal, is a doubt which the jury must have entertained and the verdict will therefore be unreasonable. However, on the test stated by the minority, the verdict would only be quashed as unreasonable if the jury acting reasonably was “bound” to have entertained the doubt,[14] or if the jury had acted “irrationally”[15] in rejecting a possibility consistent with innocence. The minority approach is more consistent with the precept, accepted by the majority in M[16] that the Court of Criminal Appeal must have regard to the consideration that the primary responsibility for determining guilt or innocence rests with the jury. The test framed in Libke also suggests that in a circumstantial case a verdict should only be set aside if the jury “must” have recognised that the prosecution had not excluded all hypothesis consistent with innocence. However, in the absence of a clear resolution of this remaining uncertainty, I will proceed on the basis that in a case where the demeanour of witnesses is of no significance the Full Court of this State should give effect to any doubt it entertains.
[14] M v The Queen (1994) 181 CLR 487 at 502.
[15] M v The Queen (1994) 181 CLR 487 at 524.
[16] (1994) 181 CLR 487 at 493.
The second observation I wish to make concerns the effect of a trial judge’s reasons on a consideration of the unreasonableness ground. The reasons of a Judge may disclose errors of law, or mistakes of fact, which support an appeal on the one or the other of the last two mentioned appeal grounds in s 353(1) of the Criminal Law Consolidation Act 1935. On the other hand, the verdict of the jury is inscrutable and is not, in itself, susceptible to appeal on those grounds. However, the “unreasonable or cannot be supported by the evidence” ground raises the same legal question whether the guilty verdict was returned by a jury or judge.[17] Nonetheless, there may be some practical differences in the application of that test. For example, a verdict might be properly supported by the evidence if the testimony of a particular witness is accepted but not otherwise. If the reasons disclose that the trial judge rejected the testimony of that witness the verdict may be susceptible to attack on the ground that it was unreasonable to find guilt on the balance of the evidence.
[17] R v C [2006] SASC 334 at [17].

However, be that as it may, on my assessment of the evidence it will not be necessary to deal with the issues to which I have referred on this appeal. For the reasons which follow the inconsistencies on which the appellant relies do not leave me in any doubt about his guilt. Moreover the factual matters canvassed by the appellant are of such a nature that the forensic advantage enjoyed by the Judge is capable of dissipating any concern arising on the face of the transcript alone.
The Evidence
The complainant, B, was 13 years of age at the time of the offence. After his parents separated he resided with his father. Early in 2007, following a disagreement with his father, he commenced to reside with his mother, Mrs N. Mrs N had by that time remarried and had three young children. At the time B went to live with his mother she was again experiencing marital difficulties.
In about May 2007 Mrs N formed a friendship with the appellant. The relationship continued until about November 2007. During that time Mrs N was casually employed in a take-away food shop. Her hours were irregular. The appellant assisted her by taking her children to school and picking them up after school.
When B commenced living with his mother the appellant also took him to and from school. In addition, he took B on a number of recreational activities. Eventually B started staying overnight at the appellant’s house. The appellant was at that time residing with his father, Mr H. Mrs N testified that B commenced to stay over with the appellant on weeknights “soon after” they had met and that, on occasion, she would herself sometimes put B to bed in the appellant’s bedroom.
Mrs N gave evidence that in about October or early November 2007, she asked her son if the appellant had behaved improperly towards him. At that time B denied any improper contact with the appellant. Mrs N explained that later, in about 2009, B confided in her that the appellant had “molested” him.
B testified that he went to stay with the appellant after Mrs N and the appellant decided that it would be easier for him to stay over because the appellant’s house was closer to school. Initially he saw the appellant as a fatherly figure. He took him bowling, go-karting and to the Gepps Cross “laser skirmish” facility. According to B, the appellant also promised to buy him a racing car.
B testified that he spent time overnight at the appellant’s house over a period of “about three months possibly”. B described in evidence a morning routine which included showering and then dressing in the appellant’s bedroom in front of a heater. It was the appellant’s suggestion that he dry off in front of the heater. B testified that on occasions he came out of the shower to find that his clothes, which he had laid out to get changed into, had been taken away. In the bedroom there was a camera which was focused on the area in front of the heater. B testified that he confronted the appellant about an occasion on which it appeared to him that the camera was running when he came out of the shower. B explained that he could tell the camera was operating because it had both a red light and a green light which indicated when the camera was operating.
B testified that he initially slept in the appellant’s room but was later provided with a room of his own. B did not specify with any precision when the sleeping arrangements changed; he merely said that “later on down the track I ended up getting my own bedroom”.
B testified that when he slept in the same room as the appellant the appellant came into his bed on most nights. The appellant engaged him in sexual conversation. B gave evidence that it was the appellant’s practice to then proceed to massage his leg. On occasions he would just massage his legs but on other occasions the appellant masturbated him. Masturbation occurred about once a week.
B gave evidence that he was given a Motorola phone after the first occasion on which B masturbated him. The phone contained pornographic images of persons whom he did not know. There were also photographs of two boys who were known to him who were depicted without any clothing above the waist. B testified that he deleted the images. According to B, when the appellant discovered that the images had been deleted he castigated him saying “you shouldn’t have, it took me a while to get those together”.
The complainant explained that he did not initially disclose the abuse to his mother because “he would have felt really guilty and bad”. He testified that he eventually complained to his mother soon after seeing a drunken man “sleazing on some young primary school children”.
In cross examination, B’s evidence in chief was tested against a statement he made to police on 27 July 2009. It was put to B that in the police statement he had only mentioned the green power light on the video camera and had not mentioned that there was also a red light. B responded that he had mentioned the red light to police before giving his evidence even though it was not recorded in his declaration. It was also put to him that he had not mentioned looking through the view finder and observing that the camera was focused on the area in front of the heater. B explained that he might not have recalled that detail when speaking to the police. He denied that he had fabricated his testimony concerning the existence of a red light and looking through the view finder.
B was cross examined about an inconsistency between his testimony and his declaration concerning an alleged attempt made by the appellant at digital penetration. In his evidence in chief B testified that the appellant had attempted digital penetration. In his declaration he had deposed:
On one occasion whist we were in bed he asked if he could put his fingers up my arse, I refused to allow him to do this, nor did he try to do it anyway.
B’s explanation for the inconsistency was that the appellant had made the request while attempting the penetration. B did not suggest he was too embarrassed to disclose the attempt but that too is nonetheless a possible explanation in all of the circumstances.
In cross examination, B’s evidence that there were multiple occasions of masturbation was contrasted with a sentence in his declaration which read:
There was one occasion where, when he got to this stage he masturbated me for about 10 seconds.
B’s response was that the incident he described in his declaration was but one of the occasions that he remembered and that it was that particular occasion that he was relating. B claimed that he was not asked by the police on how many occasions the appellant had masturbated him.
Several other inconsistencies and improbabilities arising out of his evidence were put to B during his cross examination. In the course of cross examination B gave evidence that he would wear boxer shorts to bed. It was put to B, and B denied, that his account about wearing boxer shorts was a recent invention.
In cross examination the appellant’s counsel put to B that the reason that his clothes were sometimes not immediately available after he had showered was that they were in the drier. B denied that was so, explaining that he would have heard the drier running if that was the case.
B testified that the appellant had kissed him in public and on occasion did that in front of the appellant’s father. B denied that he had ever been kissed in front of his mother. His mother Mrs N gave evidence however that she had seen the appellant kiss her son on the lips.
It was also put to B that although he was given a phone for his use, should he ever need assistance, there was no pornography on it. It was put to him that the appellant had not offered to buy him a car but had simply asked what sort of racing car he would like if he ever had the opportunity to buy one. B maintained his evidence in chief.
The appellant’s father, Mr H, gave evidence that B had stayed at his house for “about a month” no longer. He testified that there had never been a single bed in his son’s room and that B slept in the third bedroom. He testified that he had never seen the appellant kiss B on the lips. Mr H’s routine was to go to bed at night at about 11 - 11:30pm; his evidence was that B went to bed at about 9:30 - 10pm each night. Mr H agreed that B’s mother would visit three to four nights a week to see her son.
Mr H testified that his son was unemployed when B lived in their home. He was not aware that the appellant had participated in recreational activities like bowling with B.
Reasons of the Judge
The Judge expressly addressed the demeanour of the witnesses in the following paragraphs:
[43]Ms Griffith for the prosecution submitted that B gave his evidence in a careful manner and that the embarrassment and reticence he showed is of assistance in determining his truthfulness. While I agree with the prosecutor’s description of the manner in which B gave his evidence I do not find the manner of particular significance. In fact I do not think that the demeanour of any one of the three witnesses is of assistance in determining their truthfulness.
[44]Of more assistance is the inherent likelihood of the account given by B. By that I mean to include the detail of the evidence of the indecent assault and events which are said to surround it. B said that the charged act was the first of several occasions on which the accused touched his penis or masturbated it. He remembered the first incident because, after it happened, the accused gave him, or as it turned out, lent him, a mobile phone. B’s mother and the accused’s father saw B with a mobile phone. The mobile phone is a slightly unusual allegation to make if not true, and it is consistent with the accused wishing by such a “gift” to secure B’s compliance. Of course the phone could have been handed over for quite innocent purposes.[18] (Emphasis added)
[18] R v Hore [2010] SADC 72 at [43] – [44] reasons for the verdict of his Honour Judge Barrett.
With respect to the Judge, notwithstanding the last sentence of [43] of his reasons, it seems to me that his use of the expression “particular significance” and “more assistance” suggests that he did have regard to, at least in a general way, the demeanour of the witnesses and in particular the complainant B.
For quite some time now warnings have been sounded, both judicially and extra-judicially, of the danger in placing excessive weight on a judge’s perception of demeanour. Often the importance of considering the inherent probabilities in a testimonial account and the degree to which it is consistent with “objective” facts has been emphasised. However, even when adopting that approach it is difficult, if not impossible, to do so in the abstract and without having regard, at least generally, to the way in which the testimony was given. One need only compare the much more difficult task of deciding between conflicting testimony on the face of a transcript from the task of the trier of fact who has heard oral evidence. The way in which evidence is given may excite distrust which although not in any sense determinative of reliability and credibility is nonetheless an important context in which the content of the testimony is considered. Conversely, evidence may be given in a way which at least on the face of it sounds plausible. In my view, the Judge did not, in the passages which I have cited, intend to convey that he had no regard to the way in which witnesses gave their testimony. The Judge did no more than indicate that he could not determine the truthfulness and reliability of the witnesses from their demeanour alone.
The Judge then proceeded to consider the inconsistencies to which I have referred. He then explained his reasons for accepting B’s account of the subject matter in the following paragraph:
[59]Nevertheless I find B’s evidence of his sleeping in the accused bedroom compelling. It is confirmed by his mother. There did not appear any inconsistency in her evidence. B’s evidenced is enhanced by the detail it contained. It appears plain he was accustomed to being in the accused’s bedroom. He said that after his shower he would dry off in front of the heater in the accused’s bedroom. He would be naked. The accused told the police that. The accused added that he had told B not to do that. (That proposition was not put to B.) The camera was in the accused’s bedroom. The accused told the police about that. While being accustomed to being in the accused’s bedroom is not the same as sleeping there, I find that the evidence of the heater and the camera tends to support B’s evidence of sleeping in the accused’s bedroom for part of the time during his stay. I reject the father’s evidence in that respect. I do not necessarily conclude that he was lying. It is unclear from B’s evidence how long he slept in the accused’s bedroom. He may have spent longer sleeping in the spare bedroom. It would certainly be remarkable if the accused’s father was not aware where B was sleeping. It would ordinarily not be the sort of thing he would forget about. Nevertheless these are possible explanations for the father’s evidence apart from lying. I am satisfied that B is telling the truth when he says that he slept for part of his stay in the accused’s bedroom.
The Judge next considered the evidence of the uncharged acts to which B had deposed. He found beyond reasonable doubt that that conduct occurred. It must follow from the order in which the Judge made his findings that the verdict did not depend in any way on the evidence of the uncharged acts.
I too am impressed by the detail of B’s account. B’s description of the incremental way in which he was lured into closer personal contact with the appellant appears on its face to be a plausible account. The presence of the camera and the existence of the showering routine was admitted by the appellant in his statement to police and not challenged. It is circumstantial evidence which strongly supports B’s testimony. The evidence of the pornographic images on the mobile phone and the appellant’s reaction to their deletion contains a level of detail and has a plausibility which convincingly enhances the credibility of B’s testimony. In my view B’s mother is more likely to have paid closer attention to the sleeping arrangements than the appellant’s father; it may be that Mr H recalled only the last arrangements put in place and not the arrangements made when B first started to stay overnight. Moreover the reliability of Mr H is I think significantly affected by his admission that he was unaware of the recreational activities in which his son and B had engaged and by his mistaken recollection of his son’s employment status.
The inconsistencies in B’s testimony are in my view of little consequence. There is a tendency when subjecting the evidence of children to forensic examination to assume they are endowed with the knowledge, experience, articulation and perspective of adults. They are not. On a realistic appraisal of his evidence the inconsistencies urged on the Judge and on this Court do not leave me with any doubt.
I am satisfied that the prosecution evidence has properly and convincingly proved guilty. The verdict is supported by the evidence.
I would dismiss the appeal.