Baylis v The Queen
[2020] NZHC 815
•24 April 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-404-0184
[2020] NZHC 815
BETWEEN CLINTON BARRY BAYLIS
Appellant
AND
THE QUEEN
Respondent
Hearing: 9 March 2020 Appearances:
P I Pati for Appellant
D B Stevens for Respondent
Judgment:
24 April 2020
JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 24 April 2020 at 5 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date: ...................................
Solicitors: Kayes Fletcher Walker Ltd, Crown Solicitor, Manukau Counsel: P I Pati, Auckland
BAYLIS v R [2020] NZHC 815 [24 April 2020]
[1] On 24 October 2018, after a Judge-alone trial, Judge McIlraith found the appellant, Mr Baylis, guilty of 10 charges of sexual offending.1
[2] Mr Baylis appeals against conviction. I must allow the appeal if satisfied a miscarriage of justice has occurred within the definition of s 232(4) Criminal Procedure Act 2011, whether because the trial Judge erred in his assessment of the evidence or otherwise.
[3] An appeal against conviction following a Judge-alone trial is conducted by way of rehearing, but it is for the appellant to show an error has been made. In assessing whether there has been an error, the appellate court must take account of any advantages the trial Judge may have had. Where the challenge is to credibility findings based on contested oral evidence, an appellate court will exercise “customary caution” because of particular advantages the trial Judge derives from hearing the evidence.2
Background
[4] Mr Baylis committed the offences against four children, K, M, E and J. The offending against K was alleged to have occurred in 2005, against M and E between 2010 and 2011, and against J between 2010 and 2015.3 M and E are sisters, and J the only boy of the four.
[5] All of the children were under the age of 12 at the relevant time and all were known to Mr Baylis through a connection with one or other of their parents.
[6] The offending against K, M and E comprised indecent acts.4 For each such charge, the Crown was required to prove the alleged act; that the act was indecent in the sense it would be regarded as indecent by right thinking members of the community; and that Mr Baylis knew his act would be so regarded.
1 R v Baylis [2018] NZDC 21866.
2 Sena v Police [2019] NZSC 55 at [38].
3 Amended Crown Charge Notice.
4 Crimes Act 1961, s 132(3).
[7] The offending against J comprised one indecent act and four sexual violations by unlawful sexual connection. 5 In the context of this case, the Crown was required to prove a connection between Mr Baylis’s mouth and J’s penis, and vice versa.
Grounds of appeal
[8] Mr Baylis’s first ground of appeal is that the Judge erred in his assessment of the evidence in two respects. The first is that, in considering the charges against M, E and J, the Judge wrongly relied on propensity evidence which Mr Baylis contends was restricted to the charges concerning K.
[9] This propensity evidence, which was just one piece of circumstantial evidence against Mr Baylis, comprised Mr Baylis’s convictions, in 2015, on 16 charges to do with the possession and distribution, in New Zealand and abroad, of numerous objectionable publications and/or images (“objectionable publication convictions”). This offending had occurred in 2014. The publications and/or images showed the sexual abuse of, and/or sexual activity between, children — predominantly, but not exclusively, female — and adult males.
[10] The second respect in which it is contended the Judge erred in assessing the evidence is that there was insufficient credible and/or reliable evidence to prove the charges beyond reasonable doubt.
[11] The second ground of appeal is that a miscarriage of justice has occurred because the Judge ought to have, but did not, abort the trial as a result of the misconduct of W, who is M and E’s mother.
5 Crimes Act, ss 132(3) and 128(3).
Charges
K — indecent assault of a girl under 12 (x 2) between 1 January 2005 and 21 February 2005, by touching her vagina with his finger(s) and getting her to dry his penis 6
[12] In February 2005, K, aged seven, stayed overnight at Mr Baylis’s house. The Judge found that Mr Baylis had a bath with K and that, whilst in the bath, Mr Baylis touched K’s vagina with his fingers and afterwards made K dry his penis. The Judge found the acts were indecent (in the required sense) and Mr Baylis knew them to be so.
[13] The police interviewed K in March 2005 and Mr Baylis in January 2006. However, no charges were laid until proceedings were underway for the objectionable publication offending. The police then reconsidered K’s complaint, laying the charges relating to K in August 2015, in the Manukau District Court.
M — indecent act on a child under 12 between 1 January 2010 and 31 December 2011 by rubbing her chest (over clothing) while she was in his bed (representative charge) 7
E — indecent act on a child under 12 (x 2) between 1 January 2010 and 31 December 2011, by rubbing her inner thigh while she was in his bed and by rubbing her chest (over clothing) while she was in his bed 8
[14] Mr Baylis was trusted to babysit M and E at a time when E was aged between five and seven years, and M aged between four and six. The two sometimes spent the night at Mr Baylis’s house. The Judge found the acts referred to above had occurred, that they were indecent and known by Mr Baylis to be so.
6 Crimes Act, s 133(1)(a) (now repealed). The maximum penalty for this offence is 10 years’ imprisonment.
7 Section 132(3). The maximum penalty for this offence is 10 years’ imprisonment.
8 Section 132(3). The maximum penalty for this offence is 10 years’ imprisonment.
J — indecent act on a child under 12 between 31 August 2010 and 19 May 2015, by kissing him on the mouth 9
J — sexual violation by unlawful sexual connection (x 4) between 31 August 2010 and 19 May 2015, two by connection between Mr Baylis’s penis and J’s mouth and two by connection between J’s penis and Mr Baylis’s mouth 10
[15]J was aged between five and nine over this period.
[16] The Judge was satisfied that, on an occasion when they were alone and watching television together, Mr Baylis kissed J on the mouth, that this was indecent and Mr Baylis knew it to be so. The Judge was also satisfied Mr Baylis sexually violated J on the same occasion, twice by unlawful sexual connection between Mr Baylis’s penis and J’s mouth, and twice between Mr Baylis’s mouth and J’s penis.
Manukau/Palmerston North
[17] The offending against M, E and J took place, or was alleged to have taken place, at Palmerston North. The police charged Mr Baylis in respect of this offending in January 2018 in the Palmerston North District Court.
Pre-trial applications
[18]The Crown assumed responsibility for the prosecution in March 2016. It made
two pre-trial applications relevant to this appeal.
[19] The first was in 2016. The Crown applied to adduce the objectionable publication convictions as propensity evidence, and also to adduce messages it contended Mr Baylis had sent at around the same time, that is in 2014. These were referred to as the “Kik” messages and in them Mr Baylis spoke of sexual experiences with children. The Crown applied to lead the Kik messages pursuant to s 27 Evidence Act 2006 as statements made by, and admissible against, Mr Baylis, alternatively as propensity evidence.11
9 Crimes Act, s 132(3). The maximum penalty for this offence is 10 years’ imprisonment.
10 Section 128(1)(b). The maximum penalty for this offence is 20 years’ imprisonment.
11 Evidence Act 2006, ss 27 and 43.
[20] Then defence counsel opposed this pre-trial application by the Crown, although nominally only in respect of the propensity evidence. The focus of the argument was in relation to the Kik messages.
[21] Judge Bergseng allowed the application in August 2016.12 Mr Pati’s point on appeal is that the Crown’s application in relation to the objectionable publication convictions as propensity evidence was made and allowed only apropos of the charges regarding K, as the other charges had not yet been laid. As appears below, I do not consider there is any merit in this point but, regardless, the submission does not affect the Kik messages which were admissible under s 27 Evidence Act.
[22] The second application, in 2018, was for joinder of what was by then the two sets of charges, that is those in the Manukau District Court and those in the Palmerston North District Court. Judge Wharepouri allowed this application in July 2018 and ordered that all charges be heard in Manukau.13
[23] The Court of Appeal declined Mr Baylis leave to appeal Judge Wharepouri’s orders pre-trial, the trial then being close at hand.14 It is clear from the Court of Appeal’s reasons that it considered the evidence to be given on each set of charges highly probative of the other.
Trial
[24] The trial took place in September 2018 over 12 days. The complainants’ evidential video interviews (“EVI”) were played and constituted their evidence in chief, and they were then cross-examined. Their parents also gave evidence, as did police and others including customs officers who had been involved in the objectionable publication prosecution.
[25] Mr Baylis and his mother gave evidence in his defence. Mr Baylis denied he had committed any of the offending alleged and attributed the allegations to collusion between the complainants and/or their parent(s). Mr Baylis denied he was guilty of
12 R v Baylis [2016] NZDC 13830.
13 R v Baylis [2018] NZDC 9030.
14 Baylis v R [2018] NZCA 335; and Baylis v R [2018] NZCA 397.
the objectionable publication offending of which he had been convicted, and he also denied being the author of the Kik messages, as well as other emails that had been sent in connection with the objectionable publications/images (“emails”). Despite these denials, the Judge was satisfied Mr Baylis had committed the objectionable publication offending, and had sent the Kik messages and emails to which I have just referred.
[26] The Judge delivered his verdicts in October 2018.15 In April 2019, the Judge sentenced Mr Baylis to four years, four months’ imprisonment, with a minimum period of imprisonment of two years, two months’ and cumulative on the three years, two months’ imprisonment imposed on the objectionable publication convictions.16
Submissions
Propensity evidence
[27] Mr Pati submits Judge Bergseng’s ruling only permitted the propensity evidence to be adduced as regards the charges concerning K, whereas the Judge referred to the evidence in respect of all the other charges. Mr Pati submits this was an error, giving rise to a miscarriage of justice, as there had been no assessment of the unfairly prejudicial effect of the evidence as regards the other complainants.17
[28] Mr Pati makes this submission particularly in regard to the charges concerning J, as he was the only boy. In considering the charges in respect of J, the Judge said:18
[238] I also take into account the propensity evidence. The evidence of [J] of what occurred to him is consistent with Mr Baylis’ convictions. While I accept, of course, that the vast majority of the objectionable material located on Mr Baylis’ laptop and iPhone related to young girls, that was not exclusively so. I note, however, that unlike their clear relevance to the allegations by [K], [M] and [E], the Kik messages and emails with undercover investigators are not of direct relevance to [J].
15 R v Baylis, above n 1.
16 R v Baylis [2019] NZDC 7334.
17 I record that it is not apparent to me that Mr Pati even raised the issue with the Judge.
18 R v Baylis, above n 1.
[29] I accept Mr Pati’s submission that it is always necessary to consider whether the probative value of propensity evidence will be outweighed by its unfairly prejudicial effect. However, I do not accept there was any error in this case.
[30] Judge Bergseng considered the probative value of the convictions was the evidence they provided that Mr Baylis takes a “keen interest in child pornography, which is a particular state of mind, being a sexual interest in children”.19 Judge Bergseng considered it highly relevant for the fact-finder to know Mr Baylis had that state of mind.20 The Judge also determined that, although prejudicial, the evidence was not unfairly prejudicial.21
[31] I do not accept Mr Pati’s submission, simply because such probative value the evidence had as regards the charges relating to K was even greater in respect of the charges relating to M, E and J which were alleged to have been committed much closer in time to the objectional publication offending in 2014.
[32] I also accept the preponderance of the images leading to the objectionable publication convictions were of young girls, not boys, and this might have lessened the probative value of the evidence as regards the charges relating to J. However, Mr Pati did not refer me to any authority relevant to this point. I note also that the propensity evidence did not assume much significance in the Judge’s consideration of the charges relating to J. On the face of his reasons for verdicts, it came down more to the Judge’s assessment of J as an impressive witness. The Judge placed little, if any, weight on the propensity evidence as regards J. And the Judge put the Kik messages and emails entirely to one side in considering the charges relating to J because he considered them irrelevant to those charges.
[33] To conclude, I do not accept the submission the Judge erred in relying on the propensity evidence as regards the charges pertaining to M, E and J.
[34] For the sake of completeness, I record also that the Court of Appeal must be taken to have known the effect of joinder was the propensity evidence would be in
19 R v Baylis, above n 12, at [33].
20 At [34].
21 At [38].
evidence in respect of all charges. That is because Crown counsel referred to Judge Bergseng’s ruling in their submissions opposing leave, and a complete copy of the ruling was before the Court.
Insufficient credible or reliable evidence at trial to establish elements of the offences
[35] Mr Pati’s next submission concerns the sufficiency of the evidence. In particular, he submits the Judge erred in finding each complainant credible and/or reliable. I shall address this submission as regards each complainant but the gist of it is that each was unable to recall matters of detail which Mr Pati submits they ought to have been able to recall. Mr Pati also submits the Judge gave insufficient reasons for finding M and E credible and reliable witnesses.
[36] Before I address these submissions, it is helpful to describe how the Judge arrived at his verdicts, which he did complainant by complainant.
[37] First, in each case, the Judge said he did not believe Mr Baylis had told the truth in giving evidence to the Court.22 Whilst acknowledging the limitations of assessing a witness’s demeanour, the Judge said at times Mr Baylis appeared evasive and unconvincing, and an overall assessment of Mr Baylis’s evidence led him to conclude he could not accept Mr Baylis’s denials.23 That being so, and as the Judge said, it was necessary to put Mr Baylis’s evidence to one side and determine whether the Crown had proved the elements of the charges beyond reasonable doubt.24
[38] The Judge then made general observations applicable to all complainants.25 The Judge reminded himself, to find Mr Baylis guilty, he was required to be satisfied beyond reasonable doubt that each complainant was a credible and reliable witness when describing the events alleged.26
[39] The Judge referred expressly to Mr Pati’s submission that each complainant’s ability to recall “everything that they say occurred at the time of the alleged offending
22 R v Baylis, above n 1, at [162], [205] and [235].
23 At [163], [206] and [236].
24 At [163], [206] and [236].
25 At [128].
26 At [129].
with as great a detail as he submitted would have been expected” and that, coupled with an assertion of collusion and/or suggestibility, meant the Crown faced real difficulty as regards the credibility and reliability of each complainant.27
[40] In response to this, the Judge said that inaccuracies regarding peripheral matters will not inevitably render a complainant’s evidence unreliable.28 That is correct. It is a matter of assessing a witness’s evidence overall.
[41] The Judge then summarised the evidence of each complainant, and of his or her parent(s) to the extent that evidence was relevant. First, the Judge accepted each complainant was credible, and reliable on “key” elements, gave reasons for doing so, and also said he was satisfied none had made his or her complaint as a result of collusion, whether amongst themselves or their parents.29
[42] Secondly, the Judge had regard to the circumstantial evidence against Mr Baylis. This included the propensity evidence; the “cross propensity” evidence, in that the evidence of other complainants constituted evidence of a propensity on the part of Mr Baylis to touch young children inappropriately when they were in his care; in the case of K, M and E, several of the Kik and email messages the Judge considered “very significant”;30 and counter-intuitive evidence given by Dr Briar McLean, a registered clinical psychologist with expertise in assessing children and adolescents. Dr McLean’s evidence was that many children delay reporting abuse and/or do so incrementally. In response to a question from Mr Pati, Dr McLean said the incidence of false complaints was very low.
[43]The Kik and email messages the Judge considered significant were:31
[Kik]
(h)[On 17 May 2014] at 7.55 am, Mr Baylis messaged, “Child porn? I have had free in past and still get free. The real thing better tho.”
27 R v Baylis, above n 1, at [131].
28 At [133].
29 At [146], [167], [209], [211], [213], [214], [237], [239] and [240].
30 At [82].
31 At [82](h) – (k) and [85](c) – (d).
(i)Also on that day at 7.58 am, Mr Baylis messaged, “Nah it’s private shit can’t say but I can say that I have met some very horny little girls over the years and they weren’t shy about it.”
(j)Also on that day at 8.08 am, Mr Baylis messaged, “Let’s just say I have had many fun nights with some of my mates’ kids in baths and in bed. Still do every now and then.”
(k)Also on that day between 8.48 and 8.50 am, Mr Baylis messaged, “No way never knew; either babysitting or had their kids stay at mine for weekend; kids just love it; yeah some just randomly flashed and teased willing to do whatever. But in saying that very dangerous, have to be very careful, never had any issues.”
…
[Emails]
(c)[On 30 March 2014] at 2.18 pm in response to an email, “Wow you have had offers?? Like from ynger or their parents??” Mr Baylis emailed, “No, not from mothers, from young girls… very forward and dirty ones… show lots and not shy but never had a play as much as I would of loved to…”
(d)Also on that day at 2.20 pm in response to an email, “Wow that must have been awesome, how old were there?? OMG I would love to be in that situation, would be sooo hard to say no.” Mr Baylis emailed, “One four, one six, one seven and a few others… just friends’ kids I know…”.
[44] Having referred to all of these matters, the Judge was satisfied the Crown had proved the elements of the offending beyond reasonable doubt.
[45]I turn now to Mr Pati’s submissions in respect of each complainant.
K
[46] Mr Pati submits the Judge erred in finding K a reliable witness, for the following reasons.
[47] First, Mr Pati submits K either transferred to Mr Baylis an experience her mother told her had occurred to her as a child, alternatively K was untruthful in her EVI in 2005. This submission is based on the following from K’s cross-examination:
Q.Right and I noticed that when you were asked [in your EVI] about being in the bath together, you said something about you knew that it
was going to happen because your mum’s stepdad did it to your mum, do you remember that?
A. No, I don’t remember.
Q.All right. I’m just wondering if the witness could please be shown a copy of her statement.
WITNESS REFERRED TO DOCUMENT
Q.Now could you please turn to page 12? Now can I just get you please just to read to yourself lines 1, so from that top line stating, “Because” and then going to where it says, “15” on the left-hand side where it says, “Oh okay” could you read that to yourself please?
A. I’ve read it.
Q. Thank you. Now so do you know now what I’m referring to?
A. Yes.
Q.Now, are you able to tell us what did you mean when you had said that to the interviewer?
A.Um, I’m not too sure about what I meant ‘cos I was only seven, so I’m not quite sure what I meant by that.
[48]Secondly, Mr Pati submits K was an unreliable because in her EVI she:
(a)could not describe what a penis looked like;
(b)described Mr Baylis touching her vagina as “not feeling like anything”;
(c)said there was a spa pool and swimming pool at Mr Baylis’s house when there was not; and
(d)was wrong about to whom she had disclosed Mr Baylis’s offending. This is a reference to some confusion on K’s part as to whether she had told her cousin or her mother first.
[49]There is nothing in either of these submissions.
[50] As to the first, the Judge was satisfied that, by the time of the EVI, K’s mother had told K that a similar thing had happened to her when young.32 The Judge did not consider this detracted from K’s evidence as to what had happened to K.33
[51] As to the second submission, the statements in [49](a) and [49](b) above were made by K as a seven-year-old. They are not surprising answers for a seven-year- old.34 The Judge was aware of the issue in [49](c) but was not persuaded it detracted from K’s evidence on the key points.35 As to the point in [49](d), which is entirely inconsequential as to K’s reliability as a witness, the Judge was satisfied K had told her cousin before K told her mother. This was relevant to Mr Baylis’s suggestion that complaints had been made as a result of collusion between the parents.36
M
[52] Mr Pati submits there was insufficient evidence of the actus reus M alleged. This submission derives from M’s EVI, in which she said Mr Baylis had touched her “over the top of the clothes” and then gestured to her chest, but also said on a number of occasions she could not remember the details of what had occurred.
[53] There is nothing in this point. M gave evidence she was touched, and gestured to her chest. This was sufficient evidence on which the Judge could find the actus reus proved. There was other evidence this had occurred when M was in Mr Baylis’s bed.
[54] Mr Pati also submits the Judge was wrong to determine M credible, and reliable, on key aspects for these reasons:
(a)in her EVI, M said “the guy” (Mr Baylis) “did it to, um, other kids, so we’re going to maybe try and get him in jail longer ...”. Mr Pati submits this statement evidenced M’s intention was to keep Mr Baylis in prison, rather than make a genuine complaint;
32 R v Baylis, above n 1, at [148].
33 At [151].
34 At [142] and [147].
35 At [144] and [164].
36 At [165].
(b)M did not complain until she had spoken to her cousin. Mr Pati’s point is the cousin put M up to complaining or may have done so; and
(c)M had made allegations against her mother, W, to the effect W had been physically violent towards her, and also against E of some description. E, herself, gave evidence that M was “prone to lying” and that the allegations M had made against W and E were false. W likewise denied the allegation and said M was lying in that respect.
[55] Mr Pati also submits the reasons the Judge gave for finding M credible and reliable were insufficient. The Judge’s reasons were that M had been:37
[209] … consistent throughout in her description of what she said occurred on the occasion that she was staying with Mr Baylis and was in his bed. The description she gave of him rubbing her chest in her [EVI] was consistent with the evidence she then gave in Court. She was adamant as to the accuracy of what she was saying.
[56] It is appropriate here to refer to the Supreme Court’s decision in Sena v Police.38 In that case, the Court referred to the specific advantages the trial Judge, who hears the evidence, has in assessing the credibility and reliability of the witnesses. The two advantages the Supreme Court identified are these:
[39] The first is that a slow-paced trial, at which the evidence emerges gradually, provides a good opportunity for evaluating the strengths and weaknesses of a case. In assessing the plausibility of what is said by the witnesses, the judge has the advantage of being also able to form a view as to what sort of people they are. This is an appreciable consideration despite the now well-recognised difficulties with demeanour-based credibility assessments.
[40] The second consideration, in effect the other side of the coin to the first, is that appellate judges dealing with a case on the basis of a written record of what happened at trial and the submissions of counsel are unlikely to be as well-placed as a trial judge to determine contested questions of fact based on contested oral evidence. For instance, what a witness means may be conveyed, at least in part, by gesture or intonation, something which will not be apparent on the written record. More generally, the appellate process in which appellate judges are taken, sometimes rather selectively, to the aspects of the evidence on which counsel rely does not replicate the advantages of a trial judge which we have just described.
37 R v Baylis, above n 1.
38 Sena v Police, above n 2.
[57] Given these recognised advantages, none of the individual points raised by Mr Pati and listed in [54][54](a) – [54](c) above could displace the Judge’s decision to accept M’s evidence on the charge concerning her. Much more would be required.
[58] Nor were the Judge’s reasons inadequate. M did not resile from her evidence that Mr Baylis had touched her in the manner she described in her EVI, and whatever the position may have been between M on the one hand, and E and W on the other, it remained open to the Judge, with the benefit of hearing all of the evidence, to accept M’s evidence. In addition, M’s evidence was consistent with E’s, who also alleged a similar touching in bed, and the Judge had determined Mr Baylis had sent the message or email referring to having his “mates kids” in bed.
E
[59] Mr Pati submits the reasons the Judge gave for finding E credible and reliable were insufficient. The Judge’s reasons were these:39
[211] I also found [E] both a credible witness and, on the essential elements, a reliable witness. She was clear in her evidence and consistent. The evidence of Dr McLean was also relevant to [E] and her reporting which was, of course, prompted by that of [M].
[60] Mr Pati submits these reasons were insufficient because the Judge did not say with what E was clear and consistent and Dr McLean’s counter-intuitive evidence was not specific to E.
[61] I think it is clear the Judge was saying that E had been consistent throughout as to the acts she alleged. E’s evidence in chief was confined to her EVI. She did not waver from the account in her EVI under cross-examination. Again, consistency in evidence in chief and under cross-examination is a critical aspect of any assessment of credibility and reliability.
[62] Likewise, there is nothing in Mr Pati’s criticisms of the Judge’s reference to the circumstantial evidence, all of which was plainly relevant to E’s allegations.
39 R v Baylis, above n 1.
M and E — touching on the chest
[63] Mr Pati also submits the Judge erred in finding that any touching there may have been to M and E’s chest when they were clothed, was indecent. Mr Pati submits such an act is not inherently indecent when done to a young child although, again, did not provide any authority in support of his argument.
[64] It is unnecessary for me to express any view on whether touching a young child on the chest when he or she is clothed is inherently indecent. That is because those were not the circumstances. M and E were in Mr Baylis’s bed, at night, and there was no good reason for them to be there or for him to be touching them. To the extent any more is required, Mr Baylis supplied it in his “fun nights” message, as the Judge himself said.40 In fact, the Judge treated this message as an admission by Mr Baylis of his offending against M and E.41 Mr Pati submits the Judge was wrong to do so. The answer to that submission is that, even if not an admission as regards M and E (and there was no suggestion Mr Baylis had any other of his friends’ children in his bed), the content of the message was sufficient to establish Mr Baylis knew that touching M and E, as he did, was an indecent act.
J
[65]The Judge’s reasons for finding J credible and reliable were these:42
[237] I listened carefully to the evidence of [J] and observed him giving evidence. Contrary to the submission by Mr Pati, I found [J] both a credible witness and, on the essential elements, a reliable one. Indeed, I found [J] to be a very impressive young man who, while having understandable difficulty recounting such experiences, was as clear and precise in his evidence as could be expected. I saw no evidence of [J] having imagined or made up what he said occurred. There was a “ring of truth” in the reporting of the abuse by [J] and in that regard I am very mindful of the evidence of Dr McLean, with respect to reporting generally, proximity of offending and specifically reporting by male victims of sexual abuse. The reporting by [J] was exactly as Dr McLean described as familiar with male child sexual abuse victims.
40 R v Baylis, above n 1, at [212].
41 At [212].
42 R v Baylis, above n 1.
[66] In addition to these matters, the Judge referred to the other items of circumstantial evidence which I have already described, excluding the Kik messages and emails which the Judge considered inapplicable to J.43
[67] Mr Pati submits J was an unreliable witness as in cross-examination as he could not recall or give:
(a)the orientation (by which I take Mr Pati to mean whether they were on the floor or couch) of himself and Mr Baylis;
(b)whether Mr Baylis kissed him on his forehead or mouth;
(c)whether Mr Baylis had an erection;
(d)a description of Mr Baylis’s “exposed area”; and
(e)whether J, himself, had an erection.
[68] The point made in (d) is not entirely accurate, as J was clear he could see Mr Baylis’s penis, and from Mr Baylis’s belly button to his knees. J was not asked for more detail. But be that as it may, Mr Pati submits that an ability to recall these details was “key” as they are details a complainant would be expected to know.
[69] I do not accept this submission. The offending against J was said to have taken place on one occasion within a five year window, at which time J was aged between five and nine. The trial was in September 2018, several years after the event. The fact that J could not recall the precise details to which Mr Pati referred was no impediment to the Judge accepting his evidence. The important point is J was clear the acts he alleged had occurred.
Failure to abort the trial
[70] Mr Pati’s final submission is to the effect the Judge erred in not abandoning or aborting the trial due to events concerning W.
43 R v Baylis, above n 1, at [238].
[71] Mr Pati first relies on W’s failure to comply with a direction the Judge gave W, that she was not to discuss her evidence with anyone whilst under cross-examination. In fact, W communicated with M, E and the father of the children, via Facebook, in the intervening period. Only some of the communications could be retrieved. The Judge accepted these messages showed the actions of a “well-meaning but naïve mother who, without fully understanding the need for restraint on her part, had contacted her children primarily [to reassure them]”.44 Other messages, however, could not be retrieved and matters were further complicated by the fact K had destroyed her cellphone, for reasons I need not address.
[72] The second issue Mr Pati has raised concerns his proposed questions to W regarding the allegation W had been physically violent towards M. Arrangements were made for a local solicitor to give advice to W regarding the risk of self- incrimination. The Judge spoke to this local solicitor over an audio visual link and, unbeknownst to the Judge, and despite the Judge’s express enquiry, W was present during that discussion.
[73]It is for these reasons Mr Pati submits the trial ought to have been abandoned.
[74] I do not accept this submission. First, M and E had already given evidence by the time W commenced her evidence. So nothing that was said when W was part- heard could have affected M and E’s evidence.
[75] Secondly, the relevance of the truth or otherwise of M’s allegations against W was their bearing on M’s credibility. If the allegations were false, it reflected adversely on M. If W admitted the allegations, then it might (possibly) be seen to bolster M’s credibility. As it turned out, W denied the allegations. That was the ideal response from the defence perspective, because it allowed Mr Pati to make the submission — and it is apparent he did make it — that M was untruthful.
[76] Accordingly, there was no reason to abort or abandon the trial because of these omissions.
44 At [185].
Result
[77]I dismiss this appeal.
Peters J
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