R v KIELY

The applicant, R v KIELY, sought permission to appeal against a conviction for aggravated indecent assault following a trial in the District Court. The complainant, an eight-year-old boy referred to as "C", was accompanied by his ten-year-old sister, "P", at the time of the alleged offence. The applicant approached the children after they left a supermarket and allegedly touched C's penis over his clothes. P did not witness the touching but heard C complain immediately afterwards.

The court was required to determine two grounds of appeal. The first ground concerned the trial judge's refusal to permit cross-examination of C regarding alleged misbehaviour at school. The second ground argued that the verdict was unreasonable or unsupported by the evidence, focusing on alleged inconsistencies in C's accounts of the incident.

Regarding the refusal to allow cross-examination on school incidents, the court considered whether this constituted a question of law or an evaluative judgment. Applying the principles from *R v De Angelis*, the court held that such a decision involved an evaluative judgment by the trial judge based on the material and witnesses before him, and that the appellate court should be slow to interfere unless convinced the decision was wrong. On the ground that the verdict was unreasonable, the court noted the inconsistencies highlighted by the defence between C's various statements to police and in cross-examination, as well as discrepancies between C's and P's accounts. However, the trial judge had considered these inconsistencies and found them not to be significant, characterising C as a bright, articulate, and good witness for his age, without signs of evasiveness or embellishment.

The court dismissed the application for permission to appeal on both grounds. The Chief Justice would have refused permission on the ground that the verdict was unreasonable, and Vanstone J agreed with the reasons provided by the Chief Justice.