R v KIELY

[2016] SASCFC 151

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v KIELY

[2016] SASCFC 151

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Lovell)

21 December 2016

CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE

CRIMINAL LAW - PROCEDURE - WITNESSES - CROSS-EXAMINATION - GENERALLY

Application for permission to appeal against conviction.  Applicant found guilty by judge sitting without a jury of aggravated indecent assault. 

Where statements of complainant and another child tendered pursuant to the then s 34CA of the Evidence Act 1929 (SA). Where children gave unsworn evidence. Where Judge granted permission to the defence to cross-examine on the incident itself and on some incidents occurring at school but refused permission to cross-examine complainant on other school incidents.

Whether Judge erred in refusing permission to cross-examine on some incidents.  Whether verdict is unreasonable or cannot be supported having regard to the evidence. 

Held (per Vanstone J, Kourakis CJ and Lovell J agreeing):  Application dismissed.  It is not reasonably arguable that the Judge should have granted permission to cross-examine on all the incidents.  To have done so would have been to rob the section of any confining effect and to have undermined the purpose of the provision.  Cross-examination on the other incidents would have had little bearing on the assessment of the complainant’s evidence.  The verdict of guilty was both open and just.

Held (per Kourakis CJ): Admission of a statement under s 34CA of the Evidence Act 1929 (SA) requires a Judge to be satisfied, on the balancing of various considerations, that the exercise of the discretion is justified. Whether that discretion miscarried raises a question of law, appeal on this ground lies as of right.

Evidence Act 1929 (SA) s 34CA, referred to.
Gately v The Queen (2007) 232 CLR 208; M v The Queen (1994) 181 CLR 487; R v J, JA (2009) 105 SASR 563; R v Nguyen (2010) 242 CLR 491, considered.

R v KIELY
[2016] SASCFC 151

Court of Criminal Appeal:  Kourakis CJ, Vanstone and Lovell JJ

1. KOURAKIS CJ:        This is an appeal against conviction for aggravated indecent assault entered after a trial by judge alone in the District Court.  The offence occurred on 9 June 2015 outside a small local supermarket.  The victim, C, and his sister, P, had visited the supermarket to buy some items for their mother.  C was eight years of age.  The prosecution case was that the applicant approached C as he waited for his sister, asked him whether he would like to be accompanied home and, when the offer was declined, handled his penis from the outside of his clothing.

2. C made a statement about the incident to police on the next day. The statement was admitted into evidence pursuant to s 34CA of the Evidence Act 1929 (SA) (the Evidence Act), as it stood at the time of trial in June 2016. Section 34CA has since been repealed and replaced with a provision in materially different terms but serving a similar purpose.[1]

   [1]    Evidence Act 1929 (SA), s 13BA.

3. The statement was received into evidence as an electronic record on a disc, and marked Exhibit P3, in the course of the prosecution opening. In that respect, s 34CA(1) was not strictly complied with but no complaint is made as to that.[2] 

   [2]    R v J, JA (2009) 105 SASR 563 at [46].

4. At trial the appellant sought permission to cross-examine C generally as to his behaviour at school.  The Judge was informed from the bar table in broad terms what the record showed.  It was said that C was often in trouble at school, engaging in disruptive, abusive and sometimes violent behaviour with other students and teachers.  In particular the Judge was told that they recorded two incidents of dishonest dealing with the property of other students.  In addition the Judge was told that C had disclosed in a proofing session with a prosecutor that he had once got into trouble at school because he told a lie about another boy.  The applicant’s counsel opened his application to cross-examine C, by submitting ‘Ideally I would like to cross-examine the complainant on each and every incident’.  Counsel then went on to make some submissions which concentrated on C’s dishonest conduct.  The Judge did not permit cross-examination at large on the material but allowed permission to cross-examine on the description of the offence itself and on two alleged thefts disclosed in the school reports.  The Judge ruled:

   I grant permission in relation to the incident on 9 April 2014 and 3 July 2014 … the two allegations of stealing. I refuse permission in relation to the other topics. For example, I'm not satisfied the incidents involving aggression towards other students is likely to or would materially substantially affect the credibility of his evidence and I'm not satisfied that the incidents after the giving of the statement is likely to affect the credibility of the evidence. So on those two incidents of stealing, I grant permission. So they are the three criteria in s.34CA. So I will leave the request of s.9 at the moment. We will move on to the sister's evidence.

5. Even though C’s statement to police was tendered in the course of the prosecution opening, C was called and gave evidence:

   ·about the location at which he was assaulted by reference to photographs;

   ·marking the location of events on documents;

   ·describing the position he was in on his bicycle; and

   ·describing how the appellant touched him.

6. As it was, s 34CA of the Evidence Act provided:

   34CA—Statement of protected witness

   (1)A court may admit evidence of the nature and contents of a statement made outside the court by a protected witness from the person to whom the statement was made if— 

   (a)     the court, having regard to the circumstances in which the statement was made and any other relevant factors, is satisfied that the statement has sufficient probative value to justify its admission; and

   (b) —

   (i)the protected witness has been called, or is available to be called, as a witness in the proceedings; and

   (ii)the court gives permission for the protected witness to be cross‑examined on matters arising from the evidence.

   (2)A court may only give permission to allow a protected witness to be cross‑examined on such matters if satisfied that the cross‑examination is likely to elicit material of substantial probative value or material that would substantially reduce the credibility of the evidence. 

   (3)Evidence that is admitted in a trial under this section of the nature and contents of a statement made outside the court by a protected witness may be used to prove the truth of the facts asserted in the statement.

   (4)…

   (5)In this section—

   protected witness means—

   (a)     a young child; or

   (b)     a person who suffers from a mental disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions.

7. It is not uncommon for the verb ‘satisfy’ to be used in the conferral of statutory discretions. When so used, the word does not refer to a factual finding but a satisfaction, on balancing various considerations, that the exercise of the discretion is justified. The verb is so used in both s 34CA(1) and (2) of the Evidence Act.

8. The complaint that the exercise of the discretion by the Judge miscarried therefore raises a question of law and the appeal on this ground lies as of right.

9. The purpose of s 34CA was explained in R v J, JA:[3]

   [11]Section 34CA in its present form was introduced into the Act in 2008 when the Statutes Amendments (Evidence and Procedure) Act 2008 (SA) came into effect. The legislation was intended to overcome the difficulties encountered by young children and persons suffering from a mental disability in giving evidence in the traditional manner. These difficulties in the case of children were discussed in the report of the Australian Law Reform Commission “Seen and Heard: Priority for Children in the Legal Process” (1997).  Recommendation 102 of the Report stated:

   Evidence of a child's hearsay statements regarding the facts in issue should be admissible to prove the facts in issue in any civil or criminal case involving child abuse allegations, where admission of the hearsay statement is necessary and the out-of-court statement is reasonably reliable. A person may not be convicted solely on the evidence of one hearsay statement admitted under this exception to the rule against hearsay.

   The recommendation in the last sentence was not incorporated into the Act, but the general recommendation as to the admissibility of material of this nature was the inspiration for s 34CA.

   (citations omitted)

   [3] (2009) 105 SASR 563 at [11].

10. I draw attention to the qualification on the ALRC’s recommendation that a complainant’s hearsay statement be admitted ‘where [it] is necessary’ I will return later to the extent to which that qualification found expression in s 34CA of the Evidence Act.

11. Section 34CA of the Evidence Act confers two discretions. The first, conferred by s 34CA(1), is to admit the statement. As this Court explained in R v J, JA[4] and R v Byerley[5] it is subject to preconditions that:

    a.   the statement has sufficient probative value to justify its admission;

    b.   the protected witness is available to be called; and

    c. the Court is satisfied that the protected witness is capable of giving evidence through cross-examination and would therefore, subject to the restriction in s 34CA(2) of the Evidence Act, give permission for the witness to be cross-examined.

    [4] (2009) 105 SASR 563.

    [5] (2010) 107 SASR 517.

12. Section 34CA(1) of the Evidence Act does not expressly refer to any relevant considerations apart from the enlivening conditions. Nonetheless, satisfaction of the conditions in subparagraphs (a) and (b) does not require a favourable exercise of the discretion to admit. On its face, and by reference to secondary material, the discretion found in s 34CA of the Evidence Act was conferred to overcome the reluctance of protected witnesses to testify and to save them from the distress and psychological harm of testifying in the traditional way. For that reason s 34CA(2) of the Evidence Act materially limits the cross-examination which may be allowed both on the evidence of the offence itself and on collateral credit issues. It is a relevant consideration weighing against the exercise of the discretion to admit the statement if the protected witness does not labour under the difficulties against which this discretion was intended to overcome. It would be forensically unfair to deny an accused the ability to test by cross-examination the evidence of a witness who has no difficulty in giving evidence-in-chief in accordance with that same procedure.

13. The second of the discretions to which I referred is that conferred by s 34CA(2) of the Evidence Act, to give permission to cross-examine a protected witness if satisfied that the cross-examination is likely to elicit material of substantial probative value or material that would substantially reduce the credibility of the evidence.

14. Section 34CA(2) of the Evidence Act requires a court to limit the cross-examination that it would otherwise have allowed of a protected person pursuant to s 34CA(1)(b)(ii) ‘on matters arising from the evidence’. The evidence referred to in s 34CA(1)(b)(ii) of the Evidence Act is the ‘evidence of the nature and contents of a statement made outside the court’ which a court may admit pursuant to s 34CA(1). A defendant may cross-examine ‘on’ those matters by asking questions which go to the probability that the offence was committed, or which inquire into the credibility and reliability of the protected witness, but only if the cross-examination is likely to have a substantial probative effect.

15. If a protected witness gives evidence about a matter not mentioned in the statement, for example, as to where he or she lived at a relevant time, or as to the members of the household or visitors at relevant times, then the cross-examination on that material, both as to its probative value and on credit must be allowed, subject only to the general provisions of the Evidence Act which limit vexatious or disproportionate cross-examination.

16. However, what is the position if the prosecution elicits material from a protected witness by direct testimony which is also contained in the out-of-court statement. On one construction of s 34CA(2) of the Evidence Act the protected witness may be cross-examined on that in-court testimony because the restriction in s 34CA(2) of the Evidence Act applies only to cross-examination on matters arising from the evidence in the out-of-court statement which has been admitted pursuant to s 34CA(1). If that construction were not adopted a protected witness, for whom giving evidence in court posed no particular difficulty, would be protected from cross-examination by admitting his or her statement before leading evidence-in-chief in the ordinary way. In support of that construction it could be argued that if Parliament had intended to provide a general protection of that kind then it could be expected to have enacted a universal rule to that effect applying to all cross-examination of protected witnesses whether an out of court statement had been admitted or not.

17. Be that as it may, I have concluded that the approach more consistent with the protective purpose of the section is to apply it literally as a restriction on cross-examination of the subject matter covered in the statement whether or not the witness has given supplementary oral testimony of the incident described in the statement.  However, that construction requires trial judges to enquire into, and consider the nature and extent of, any proposed examination-in-chief of a protected witness before deciding whether or not to give permission to admit the statement.  If the prosecution intends to lead a significant part of the evidence of the offending by oral testimony, that is a consideration which may lead to a decision not to receive the out-of-court statement because it both demonstrates that the protection which the section is calculated to give is not needed and because the statutory restriction on cross-examining on that oral testimony would forensically disadvantage the accused. 

18. However, no objection was taken to the admission of the statement on the ground that the prosecution intended to elicit some evidence testimonially.  The evidence elicited of the offence itself was brief.  There was no error of law in the admission of statement. 

19. I observe here that s 13BA of the Evidence Act now confers a wider discretion to allow cross-examination when a protected witness has given evidence-in-chief, and thereby provides greater flexibility in the exercise of anterior discretion to admit the out-of-court statement.

20. C was extensively cross-examined on the two thefts and frankly admitted them.  Cross-examination on the other matters mentioned by counsel was unlikely to have any effect on the assessment of C’s credit. C’s schoolyard misdemeanours are a world apart from the circumstances of the offending he described.  Moreover any answers C gave in cross-examination could not be disproved collaterally.  The appellant did not propose to adduce expert evidence that C was a pathological liar or suffered any other psychological condition which affected the reliability of his testimony based on his behaviour at school.  Cross-examination on C’s school behaviour could not have had any material effect on the assessment of his credibility.

21. The discretion to limit C’s cross-examination was exercised correctly for the above reasons and for the reasons given by Vanstone J.   I would dismiss what I consider to be an appeal brought as of right on that ground.

22. I would dismiss the application for permission to appeal on the ground that the verdict was unreasonable for the reasons given by Vanstone J.

    Conclusion

23. I would order:

    1Appeal on ground 2 dismissed.

    2Application for permission to appeal on ground 3 dismissed.

24. VANSTONE J:     After a trial before a District Court Judge sitting without a jury, the applicant was convicted for aggravated indecent assault.  He applies for permission to appeal against that conviction.

    Background

25. At the time of the offence, being 9 June 2015 in the afternoon, the victim, “C”, had recently turned eight years of age.  During the relevant incident, he was accompanied by his sister, “P”, who was 10 years of age.  The two children were asked by their mother to go to the nearby IGA Supermarket to get some butter.  C took his bicycle and P was on foot.  When they left the store they were approached by the applicant, who asked if they wished him to walk them home.  P declined.  She was a bit behind C and preoccupied with something she had dropped.  It was alleged that the applicant then approached C and touched his penis over his clothes.  P did not observe this, but C immediately complained to her.  At that, P telephoned their mother, who told them to go into the supermarket and to wait for her there.  Their mother contacted police before hurrying to meet her children.

26. The applicant was seen on the supermarket’s closed circuit television.  The description given by C of the man and his clothing was said by the Judge to be “quite accurate”.  The applicant was arrested on 26 June 2015.  When police explained the nature of the allegation, he told them he did not know what they were talking about.  Further on in the interview he said he might have seen two children at the IGA Supermarket and asked them if they were alright.  Later, when he gave evidence at trial, he acknowledged an incident concerning two children at the relevant location and said that he might have asked them something along the lines of “Are you all right to get home by yourself?”.

27. At the trial, the recorded police interviews with both C and his sister, P, were tendered pursuant to s 34CA of the Evidence Act 1929 (SA). (This section was repealed on 1 July 2016.) Both children gave unsworn evidence.

28. The application for permission to appeal originally contained three grounds.  Permission was granted by a single Judge on ground 1, but ground 1 is no longer pursued.  Permission to appeal on grounds 2 and 3 was referred to the Full Court.  The applicant now renews his application based on those grounds. 

29. Ground 2 complains that the trial Judge erred in refusing to permit cross-examination of C about incidents at his school in which he was reported as misbehaving.  In his reasons, the Chief Justice categorises this question as one of law, giving rise to an appeal as of right.  I respectfully disagree.  In my mind it involves an evaluative judgment by the Judge based on the material and the witnesses before him.  In R v De Angelis (1979) 20 SASR 288 King CJ considered a decision made at a trial of sexual charges to refuse to grant leave for cross-examination of the complainant on her previous sexual experiences. Section 34(i) of the Evidence Act 1929 (SA) provided that such leave should not be granted except where the judge was “satisfied” of the relevance of the evidence and that its introduction was justified. King CJ (with the concurrence of Jacobs J) said, at 294:

    The question whether the introduction of evidence of prior sexual experiences and sexual morality is justified is one for the determination of the trial Judge. In my opinion, this Court should be slow to interfere with that determination and should do so only when convinced that it is wrong.

    The use of that terminology suggests to me that King CJ categorised the relevant issue as one involving a question of mixed fact and law. If so then permission to appeal would be required. I take the same view about a determination made under s 34CA(2).

1. Ground 3 is a complaint that the verdict is unreasonable or cannot be supported having regard to the evidence.

   Ground 2 – refusal to permit cross-examination on further topics

2. At the commencement of the trial, counsel for the prosecution, Ms Matteo, advised the Judge that the prosecution would tender statements of the two children pursuant to s 34CA(2) of the Evidence Act 1929 (SA). Since both witnesses were available to be called, Mr Cole, for the applicant, indicated he did not object.

3. The statement of C was in the form of an audio-visual record of a conversation with a police officer on the day after the incident.  This was not the only statement made by C, but was the only one tendered.

4. Having heard submissions from Ms Matteo going to compliance with the requirements of the section, Mr Cole was asked to outline the topics upon which he wished to cross-examine.  Initially he identified the incident itself, including various inconsistencies in the several statements made by C, and a statement made by C during a proofing session.  That was to the effect that he knew the difference between truth and a lie because he got into trouble at school and was suspended for telling a lie about another boy.  However, Mr Cole also advised the Judge that he had just received, from the Director of Public Prosecutions, a “student incident report” containing a number of separate allegations against C. 

5. At this point, the Judge indicated he would grant Mr Cole an adjournment so that he could peruse the student incident report.  Before doing so, the Judge summarised the topics on which Mr Cole had so far sought permission as “the circumstances surrounding the alleged offence and the topic of the incident at school”, referring to the telling of a lie about another boy. 

6. Upon resuming, Mr Cole sketched for the Judge some of the contents of the report.  These included allegations made by teachers of occasions when C had apparently engaged in fighting with other boys, that he had stolen “Woolworths cards” from a reading room at the school, had taken “loom bands” from the bag of another boy, that on occasions he had kicked other boys, including their “private parts” and hit them.  He was reported as having been disruptive in class and to have run from the classroom, thrown rocks and sticks and then climbed a tall tree, saying, “Look at me, no hands”, making out as if he was going to jump.  There was also an incident of screaming and babbling in a focus room.  The incidents described included two allegations of stealing.  Mr Cole indicated that he wished to cross‑examine on aspects of the incidents which had a sexual overtone, including kicking children between the legs and using sexual terminology.  Mr Cole suggested that the incidents appeared to be a form of attention-seeking.

7. Ms Matteo submitted that, under the terms of the section, the cross‑examination needed to be targeted and that generalised suggestions of acts of violence and the like would not comply with the requirements of the section.  It was said that some of the allegations were of acts which followed the date of the offence and others went back several years.  She accepted that allegations of stealing might be in a different category, and justify permission to cross-examine. 

8. The Judge then granted permission in relation to the two allegations of dishonesty. 

9. It appears to be the position that the Judge granted permission both in respect of the topics that the Judge had earlier summarised and also on the two allegations of stealing.  That is certainly how defence counsel proceeded, without any objection by the prosecution going to content.  The cross-examination ran to some 40 pages of transcript and covered the incident itself, the various statements C made, including to his mother, and the theft of property.  C was frank about difficulties at school.  Indeed, when Mr Cole foreshadowed questions about an incident at school in July 2014, C responded: “I’ve been in trouble at school my whole life”.  C freely admitted having taken the “loom bands” from a boy’s bag and having falsely claimed he had found them, and to taking Woolworths cards and rubbers from the “reader room”.

10. The applicant argues that permission should have been granted on all the allegations in the incident report, as well as C’s admission in proofing that he had falsely implicated another boy.  The applicant’s counsel upon the appeal, Mr A Allen, acknowledges that, in the way defence counsel’s application was punctuated by the request for time to read the incident report, not surprisingly, the allegation about falsely implicating another boy seemed to be overlooked.  Nevertheless, he argues that the matters contained in the incident report, going beyond the incidents of stealing, had the capacity to substantially reduce C’s credibility, demonstrating as he suggested they did, attention-seeking behaviour.  He put that C’s claim of being indecently assaulted might have been of the same ilk.

11. The terms of the section are set out in the reasons of the Chief Justice.  The policy underlying the introduction of this section was referred to in R v J, JA (2009) 105 SASR 563. At [11], Duggan J, with whom Nyland J agreed, said that the section “was intended to overcome the difficulties encountered by young children and persons suffering from a mental disability in giving evidence in the traditional manner”.

12. Construing the section, Duggan J noted at [36] that there were three conditions precedent which needed to be fulfilled before the statement would be admissible. They were first, that the statement had sufficient probative value to justify its admission, second that the protected witness had been called or was available to be called and third, that the Court had given permission for the protected witness to be cross‑examined on matters arising from the statement. These conditions are found in s 34CA(1)(a) and (b). Duggan J then went on to say, in effect, that the permission to cross-examine was qualified by the need to ensure compliance with the restrictions in s 34CA(2). This, his Honour said, created a potential awkwardness in the process: [44]. During argument in the present case, the Judge was referred to this and another authority.

13. In my opinion, it is not reasonably arguable that the Judge should have granted permission to cross-examine on all the allegations outlined.  To have done so would have been to rob the section of any confining effect and to have undermined the purpose of the provision.  The balance of the matters contained in the incident reports could have had little, if any, bearing on C's truthfulness and reliability.  The reports about C were removed in time, place and circumstance from the allegations on which the charge was based.  They had no clear bearing on the likelihood that the allegation of indecent assault was true.  This was a discretionary judgement which fell to the Judge.  I consider it was well within the ambit of his discretion to limit the cross-examination as he did.  Such cross-examination as there was on incidents at school gave no promise of eroding C’s credibility. 

14. During the appeal hearing, the question arose whether the fact that the prosecutor had sought and been given permission to adduce some limited evidence from C in examination-in-chief might have enlivened in the defence a right to cross-examine C at large.  In J, JA at [63] Duggan J observed that if the protected witness did give evidence there was nothing in the section to prevent examination‑in-chief on the matters dealt with in the statement. His Honour referred to Gately v The Queen (2007) 232 CLR 208. In J, JA Duggan J rejected the argument that, if the prosecution chose to call oral evidence from the maker of the statement, then the statement itself should not be admitted. That is a slightly different point from the present one. However, I think it is implicit in Duggan J’s treatment of the issue agitated before the Court there, that leading some limited oral evidence in chief from a protected witness would not have any impact on the restrictions provided in s 34CA(2). It is hard to see why it should. Here, Ms Matteo sought from C confirmation that photographs which were in evidence showed the relevant scene and asked him to locate where on the photographs the incident had occurred. She asked three questions about the manner in which the man had touched him. It is difficult to see why this should result in C losing the benefit of s 34CA(2).

15. I would refuse permission to appeal on this ground.

    Ground 3 – complaint that the verdict is unreasonable or cannot be supported having regard to the evidence

16. The applicant’s counsel drew attention to a number of inconsistencies as between the various account of the incident given by C to the police, his mother and the Court.  These were put to C in cross-examination.  They were referred to as “internal inconsistencies”.

17. Mr Allen contended that a significant degree of exaggeration and variation was apparent in the accounts C gave of the incident.  A helpful table summarising the relevant statements was set out in counsel’s outline of argument.  The contrast drawn was between the first interview which C gave the day after the incident, the second interview he gave which was on 13 August 2015, and the cross-examination of the complainant.  It is not necessary to refer to all of the points made.  The flavour of them can be gained from the principal ones.

18. Mr Allen contrasted C’s original statement that the man “walked past me and touched my part” with the statement in cross-examination to the effect that the man had been doing it for “about 30 seconds”, and again with the statement in the second interview to the effect that the man “rubbed his hand and squeezed it as tight as he could”.  Reference was made to the boy’s statement in cross‑examination that he did not call out when the man was doing it, as against his statement in the second interview that when the man ran off he yelled out to P.  Then, in the second interview C said that he “went to smack his hands and he pulled it away fast and I just hit the tip of his fingers”.  That allegation was not previously made.  Next, reference was made to the man’s conduct after the event.  In cross-examination C said that the man was gone by the time P walked up to him.  However, in the second interview, he said he saw the man hiding behind a tree and that his sister went to have a look to find him.  Further, in the initial interview he said that, after the event, he and his sister had talked about what had happened and what the man looked like but, in cross-examination, he denied having done so.  In cross-examination, he said he told his mother that he had said to the man, “Don’t do that or my mum will call the police” but, later, he denied having said that.

19. There were also inconsistencies as between C’s and P’s accounts of the incident.  In cross-examination C claimed he had complained to P immediately, whereas P said it was she who asked C whether he was okay, thereby eliciting the complaint.

20. The Judge was addressed by defence counsel about these inconsistencies.  At [33] – [39] the Judge summarised the main inconsistencies and discrepancies.  The Judge said he did not regard the discrepancies as significant.  The Judge then said this, at [40]:

    C is a bright and quite an articulate child.  His responses to Detective Brevet Sergeant Lisle in the interview, and in court to counsel, were appropriate and thoughtful.  There was no sign of evasiveness or reconstruction, nor of a desire to embellish his evidence.  Having regard to his age, at the time of the interview and at trial, he was a good witness.

    The Judge referred also to P’s evidence.  His Honour found nothing surprising in the fact that she did not see the touching.  She gave evidence of the recent complaint by C. 

21. The task of an appellate court in considering a ground of this nature was authoritatively discussed by the High Court in M v The Queen (1994) 181 CLR 487. More recently, in R v Nguyen (2010) 242 CLR 491 those principles were confirmed. The question which must be asked is whether, upon the whole of the evidence, it was open to the jury (or in this case the Judge) to be satisfied beyond reasonable doubt that the accused was guilty. The appellate court is not to disregard or discount that the trier of fact had the primary responsibility of determining guilt or innocence or that it enjoyed the benefit of having seen and heard the witnesses. If, however, the record contains discrepancies or inadequacies, or lacks probative force to the extent that, notwithstanding the advantages enjoyed in the court below, the possibility remains that an innocent person has been convicted, then the Court must intervene. The ultimate question is whether, on the whole of the evidence, it was open to the court to be satisfied of guilt: M v The Queen at 494-5.

22. In light of the discrepancies and inconsistencies in the various accounts given of the incident by C, it is necessary to closely examine his evidence, as indeed the Judge plainly did.  In my view, C’s evidence reads very well.  It would be expected that his description of the various parts of the event would vary from time to time.  That on one occasion he described being the subject of a touching and that on other occasions he described a grabbing or squeezing is not, in my mind, of any moment.  Nor is the fact that he admitted exaggerating his own conduct in claiming to have smacked the man’s hand away at the end of the incident.  No doubt he wished he had done so.  My reading of the incident suggests that over a number of occasions when questioned at some length by various persons C maintained a high level of consistency.  Moreover, although P did not claim to see the touching, she confirmed important parts of the interaction and gave evidence of C’s immediate complaint.  The Judge was impressed by both witnesses and, upon reading their evidence, one can see why.

23. The applicant’s evidence, on the other hand, was found by the Judge to be “particularly unsatisfactory”: [59]. The Judge found that his denials of any memory of relevant parts of the event were “deliberately false”: [84]. The Judge rejected his denials: [84].

24. My independent assessment of the evidence before the Judge gives me no misgivings about the verdict of guilty.  It was both open and just. 

25. I would decline to grant the application for permission to appeal.

    Conclusion

26. In my opinion, neither of the grounds upon which the application for permission to appeal is renewed is reasonably arguable.  The application should be dismissed.

27. LOVELL J:          I agree with Vanstone J subject to one matter.

28. The question of whether Ground 2 raises a question of law or a question of mixed fact and law was not the subject of argument on appeal.  I prefer to express no opinion on this issue until it is the subject of full argument.  For the purpose of the disposition of this application I acquiesce in the orders proposed by Vanstone J.