Clark v R

BELL JA : I agree with Barr J.

BARR J : Peter Frederick Clark appeals against convictions entered in the District Court and seeks leave to appeal against the resulting sentences. Following a trial before Garling DCJ, sitting without a jury, the appellant was found guilty of offences that may be summarised thus - 1. that on 4 December 2004 at Taree he attempted to procure a certain child over the age of 14 years to be used for pornographic purposes; 2. that at the same time and place he incited the same complainant, a person then under the age of 16 years, to commit an act of indecency towards him; and 3. that on 27 January 2005 at Taree he had child pornography in his possession.

The first two counts relied almost solely on the evidence of the complainant, a boy aged 14 years at the time of the events, which was to the effect that on the morning of 4 December 2004 he was walking home in Taree when the appellant pulled up in his car and offered him a lift. The complainant accepted. On the way the appellant spoke about a job and asked the complainant whether he wanted to know about it. He told the complainant that he could earn money and mentioned amounts in the range of $6000 to $11,000. He said that he, the appellant, would receive twenty percent of the first and ten percent of the second. The complainant did not understand what he was talking about.

The appellant interrupted the journey and paid a short visit to a shop in Taree. The complainant remained in the car while he did so. After a few minutes the appellant returned to the car carrying a compact disc. He said “I’ve got the demo disc. I’ll show it to you”.

He drove to his, not the complainant’s, house. They went inside. The appellant showed the complainant the television, video and sound systems that were installed there and demonstrated how they worked. He said that he would show the complainant the disc. He inserted it into the equipment and showed the complainant the resulting images. They were of naked boys, some alone and some in groups of four or five. Some scenes were shot in a room, some on the beach and some in the bush. The appellant said that the complainant would have to dye his hair. He said that they, presumably meaning images recorded on discs like the one he was demonstrating, were sent to America and were not sent back, so no one would know that it was the complainant.

They went to another room and the appellant asked whether he could look at the complainant’s eyes and listen to his heart. He had a stethoscope with him. He asked the complainant to take his shirt off. He refused but lifted his shirt. The appellant put the stethoscope on his chest. When he looked into the complainant’s eyes the appellant had an instrument containing a handle and a battery and a light like a magnifying glass. There was a safe in the premises and the appellant offered the complainant money. The complainant declined the offer and said that he had to go home.

The appellant started driving him back towards his house. On the way he asked him whether he were circumcised and asked him to show him his penis. The appellant dropped the complainant off not far from where he lived and as he did so told him his mobile telephone number and invited him to get in touch if he needed a lift.

About a week later the complainant was in the company of two other boys and the appellant drove by. He stopped his car and asked the complainant whether he wanted to talk to him.

The several invitations made to the complainant about the job were the subject of the first count and the invitation made to him in the car on the way home was the subject of the second.

There was early complaint and the police were informed. On 27 January 2005 police officers executed a search warrant at the appellant’s house. They took away computer equipment. On two hard drives were many images of boys of a pornographic nature. That was the subject of the third count.

The appellant was unrepresented at the trial.

In due course the trial judge delivered a reasoned verdict of guilty on each count. The conviction appeal.

On the appeal many complaints were made about the trial. I shall adopt the numbering and the nomenclature used in the grounds of appeal filed on 13 February 2008 and the appellant’s written submissions filed on the same day.

The first ground of appeal asserts that the trial miscarried. A number of reasons were put forward as justifying that conclusion. GROUND 1(A) THE INDICTMENT

It was submitted that as far as the first count was concerned the indictment was not framed according to the law as it stood on 4 December 2004. The events on which the Crown relied on the first count took place on 4 December 2004. On that day s91G Crimes Act 1900 provided as follows - (1)Any person:: (a) who uses a child for pornographic purposes, or (b) who causes or procures a child to be so used, or (c) who, having the care (but not necessarily entitled to law to have the custody) of a child, consents to the child being so used or allows the child to be so used, is liable to imprisonment for 5 years or, if the child is under the age of 14 years, to imprisonment for 7 years.. (2)For the purposes of this section, a child is used by a person for pornographic purposes if: (a) the child is engaged in activity of a sexual nature (for example, actual or simulated sexual intercourse or a striptease) for the purpose of the production of pornography by that person, or (b) the child is in the presence of another person engaged in such an activity for that purpose.

The first count in the indictment was as follows - Peter Frederick CLARK On 4 December 2004 at Taree in the State of New South Wales did attempt to procure (the complainant ), a child over the age of 14 years, to be used for pornographic purposes.

Appropriately, the back sheet of the indictment cited s91G(1).

Part way through the trial the Crown prosecutor sought leave to a amend the indictment by substituting the citation “s91G(2)” for the original citation on the back sheet. There was no application to amend the wording of the charge, however, and it remained in the form that I have set out above. Since subs (2) did not prescribe any offence, the amendment could have had no utility.

The reason for the Crown’s application, as was accepted by the Crown on appeal, must have been that the Crown and the trial judge erroneously had regard to an amended form of s91G that had taken effect on 1 January 2005. That was the form published in the practice books at the time of the trial. That form of s91G was as follows - (1)Any person who: (a) uses a child who is under the age of 14 years for pornographic purposes, or (b) causes or procures a child of that age to be so used, or (c) having the care of a child of that age, consents to the child being so used or allows the child to be so used, is guilty of an offence. Maximum penalty: imprisonment for 14 years. (2) Any person who: (a) uses a child who is of or above the age of 14 years for pornographic purposes, or (b) causes or procures a child of that age to be so used, or (c) having the care of a child of that age, consents to the child being so used or allows the child to be so used, is guilty of an offence. Maximum penalty: imprisonment for 10 years. (3)For the purposes of this section, a child is used by a person for pornographic purposes if: (a) the child is engaged in sexual activity, or (b) the child is placed in a sexual context, or (c) the child is subjected to torture, cruelty or physical abuse (whether or not in a sexual context), for the purposes of the production of pornographic material by that person. (4)For the purposes of this section, a person may have the care of a child without necessarily being entitled by law to have the custody of the child. (5)Where on the trial of a person for an offence under subsection (1) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under subsection (2), it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly.

This conclusion is strengthened by the fact that when sentencing the appellant his Honour stated that the maximum penalty for the offence the subject of the first count was 10 years’ imprisonment. In fact it was 5 years’ imprisonment.

It seems to me that whatever may be said about the effect of this error on the sentence, the verdict on the first count did not miscarry. Relevantly, s91G as it stood on 4 December 2004 prescribed three elements, namely (1) the procuration, (2) of a child, (3) for pornographic purposes. In addition to the element of attempt, those three elements were pleaded and the trial judge reached his verdict after considering each of them. GROUND 1(B) THE TRIAL WAS UNFAIR

It was submitted that the trial was unfair because - a) the trial judge erred in restricting the appellant’s right to cross-examine the complainant; b) the trial judge erred in holding inadmissible under s293 Criminal Procedure Act certain questions the appellant desired to ask of the complainant; c) the trial judge erred in admitting evidence as tendency evidence; d) the trial was procedurally unfair; e) an uncertainty arose about the use that might properly be made of a particular body of evidence; and f) the trial judge erred in admitting evidence of the appellant’s bad character. a. Restricting the right to cross-examine the complainant

It was first submitted by Mr Ramage QC for the appellant, and may be accepted, that subject to any statutory exception the appellant was entitled fully to represent himself by examining, cross-examining and re-examining witnesses. Mr Ramage referred to s37 Criminal Procedure Act 1986 and to the judgment of Mason P, with whom Wood CJ at CL and I agreed, in R v MSK and MAK [2004] NSWCCA 308 at [34]. Mr Ramage accepted the validity and effect of s294A Criminal Procedure Act as limiting the appellant’s entitlement. He submitted, however, that some of the procedures adopted by the trial judge were neither required nor authorised by s294A and that the appellant’s rights, validly limited as they were, were impermissibly subjected to further limitation with the result that he was denied a fair trial. Mr Ramage submitted that it was impermissible for his Honour to - (i) require the appellant to write down all his questions and submit them to his Honour in advance of any questioning; (ii) effectively direct that the person appointed to ask the questions be absent during the complainant’s evidence-in-chief; (iii) require the cross-examiner when asking the complainant about things he had said in his statement, to put the document into his hands, so enabling him to refresh his memory before answering questions about it; (iv) require the cross-examiner to accept, without further pursuit or testing, any denial of a proposition put in a question; (v) prevent the appellant from cross-examining the complainant about motives; and (vi) re-draft questions the appellant desired to ask. (i) Requiring the appellant to write down all his questions (ii)Effectively directing the absence of the person appointed to question the complainant during his evidence in chief.

It is convenient to deal with the first two complaints together.

Because the appellant was unrepresented at the trial and because the offences charged in the first two counts were, by virtue of s3 Criminal Procedure Act, prescribed sexual offences, s294A of that Act had effect. The relevant provisions of the section are as follows - (1)This section applies to proceedings in respect of a prescribed sexual offence during which the accused person is not represented by an Australian legal practitioner. (2)The complainant cannot be examined in chief, cross-examined or re-examined by the accused person, but may be so examined instead by a person appointed by the court. (3)The person appointed by the court is to ask the complainant only the questions that the accused person requests that person to put to the complainant. (4)Any such person, when acting in the course of an appointment under this section, must not independently give the accused person legal or other advice. (5)The court does not have a discretion to decline to appoint a person under this section, despite anything to the contrary in section 306ZL or any other Act or law. It also appeared that regard might have to be had to the provisions of s293 of the same Act. They are as follows - ( 1)This section applies to proceedings in respect of a prescribed sexual offence. (2)Evidence relating to the sexual reputation of the complainant is inadmissible. (3)Evidence that discloses or implies: (a) that the complainant has or may have had sexual experience or a lack of sexual experience, or (b) has or may have taken part or not taken part in any sexual activity, is inadmissible. (4)Subsection (3) does not apply: (a) if the evidence: (i) is of the complainant’s sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and (ii) is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed, (b) if the evidence relates to a relationship that was existing or recent at the time of the commission of the alleged prescribed sexual offence, being a relationship between the accused person and the complainant, (c) if: (i) the accused person is alleged to have had sexual intercourse (as defined in section 61H (1) of the Crimes Act 1900) with the complainant, and the accused person does not concede the sexual intercourse so alleged, and (ii) the evidence is relevant to whether the presence of semen, pregnancy, disease or injury is attributable to the sexual intercourse alleged to have been had by the accused person, (d) if the evidence is relevant to: (i) whether at the time of the commission of the alleged prescribed sexual offence there was present in the complainant a disease that, at any relevant time, was absent in the accused person, or (ii) whether at any relevant time there was absent in the complainant a disease that, at the time of the commission of the alleged prescribed sexual offence, was present in the accused person, (e) if the evidence is relevant to whether the allegation that the prescribed sexual offence was committed by the accused person was first made following a realisation or discovery of the presence of pregnancy or disease in the complainant (being a realisation or discovery that took place after the commission of the alleged prescribed sexual offence), (f) if the evidence has been given by the complainant in cross-examination by or on behalf of the accused person, being evidence given in answer to a question that may, pursuant to subsection (6), be asked, and if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission. (5)A witness must not be asked: (a) to give evidence that is inadmissible under subsection (2) or (3), or (b) by or on behalf of the accused person, to give evidence that is or may be admissible under subsection (4) unless the court has previously decided that the evidence would, if given, be admissible. (6)If the court is satisfied: (a) that it has been disclosed or implied in the case for the prosecution against the accused person that the complainant has or may have, during a specified period or without reference to any period: (i) had sexual experience, or a lack of sexual experience, of a general or specified nature, or (ii) had taken part in, or not taken part in, sexual activity of a general or specified nature, and (b) the accused person might be unfairly prejudiced if the complainant could not be cross-examined by or on behalf of the accused person in relation to the disclosure or implication, the complainant may be so cross-examined, but only in relation to the experience or activity of the nature (if any) so specified during the period (if any) so specified. (7)On the trial of a person, any question as to the admissibility of evidence under subsection (2) or (3) or the right to cross-examine under subsection (6) is to be decided by the court in the absence of the jury. (8)If the court decides that evidence is admissible under subsection (4), the court must, before the evidence is given, record or cause to be recorded in writing the nature and scope of the evidence that is so admissible and the reasons for that decision.

In order to instruct the appellant about the way the trial was to be conducted and about his choices and rights during the course of it his Honour prepared a document entitled “Advice to Self-Represented Accused” and handed it to the appellant. A copy was marked 1 for identification. Before the empanelment of the jury his Honour read the document to the appellant and orally expanded upon its provisions. In that manner his Honour dealt with the procedure for the empanelment of the jury and the challenging of jurors, objections to questions, the appellant’s right to silence or to give evidence and the direction likely to be given to the jury should the appellant decide not to give evidence, the function of the opening addresses, the function of closing addresses, evidence of admissions and of good character. His Honour also set out for the appellant the elements that the Crown had to prove in order to obtain a verdict of guilty on any of the counts as then framed. His Honour dealt with some of the factual and legal terms that arose during consideration of those elements. His Honour summarised possible defences.

The document contained this passage, which his Honour read to the appellant - As you are not represented by counsel or a solicitor in this trial and as these offences fall into the category of “prescribed sexual offence” as defined in Section 3 of the Criminal Procedure Act, 1986, you cannot personally conduct examination in chief, cross-examination or re-examination of a complainant. A complainant may only be so examined by a person appointed by the Court. The person appointed may only ask the complainant those questions which you request that person to put to the complainant and must not give legal or other advice to you. I will advise the jury of what is to happen. The practice we will adopt, subject to hearing any submissions you or the Crown wish to make, will be: (a) You would write out a list of questions, which would be given to me, in the absence of the complainant and the jury (if applicable). (b) I will rule on whether each of the questions is permissible. Consistent with my obligations with respect to a self-represented accused, I will advise you as to why a question is not permissible, and will explain the proposed procedure for cross-examination of the complainant to you. (c) I will give you the opportunity to re-formulate the questions in accordance with my rulings. You will also be advised to write down any further questions to be asked of the complainant, at any time during the course of the cross-examination and at any stage during the course of the cross-examination and at any stage during the course of the trial and to seek permission to ask those questions, including the recall of the complainant for those questions. (d) The intermediary will ask the complainant the questions ruled permissible by me. (e) After the complainant has answered the questions, I will you if you have any further questions arising from the complainant’s answers, or any questions previously overlooked. (f) If you have further questions, the procedures set out in paragraphs (a) to (e) would be repeated.

It may be observed that nowhere in the document MFI 1 or in the initial advice given orally by the trial judge to the appellant was there any reference to any possible restriction of cross-examination because of the requirements of s293 Criminal Procedure Act . I do not say so critically of the trial judge, for the topic did later raise itself, but as relevant to a submission made by the Crown during argument on the appeal, a subject to which I shall return.

Having read that passage, his Honour continued as follows (AB 646) - So it’s not an easy task but we will co-operate with each to ensure that you’re afforded every fairness - - Accused Thank you your Honour. His Honour …in this. So what probably will happen is you’ve probably got some questions already in mind; you start drafting those out and you let me and the Crown see them and we’ll deal with that and then, no doubt as it goes along, other things will occur to you and you’ll be making some notes and then I think probably the best idea is for me to stop, get the jury out, the complainant out, and say to you “now have you got more questions you’d like asked” and give you time to formulate them in your mind, to write them out, deal with it again and we’ll keep going until you’re satisfied -- Accused And you’ll -- His Honour --that everything you wish to ask has been asked.

The debate continued and the appellant said this (AB 648) - Yeah. Look, my only complaint about that section of the Act, the questions are directed in a sterile form.

His Honour dealt with the appointment of the representative under the provisions of s294A. After discussion about the appointment of the local registrar (this trial took place in a provincial centre) and possible other candidates, including counsel to whom the appellant had spoken about the matter, the local registrar Mr Shields, was appointed. Mr Shields was called into Court and this was said (AB 687) - His Honour Now I have already appointed you, pursuant to the Act, to ask questions on behalf of Mr Clark. What will occur is that Mr Clark will write out the questions he would like asked, he will give them to me, I don’t believe it is a matter for the Crown to have, simply for me to have, for me to rule basically on them. The Crown can object later on, on any such question, and all you will do is to read them out the jury…

The procedure for dealing with objections raised by the Crown was discussed.

The jury were empanelled and the trial began. At the end of the first day, for reasons not germane to this appeal, the jury were discharged. The trial could not recommence until the following day and his Honour asked the Crown and the appellant whether there were any matter that could be dealt with there and then. These things were said (AB 726) - Accused Only the questions your Honour that may -- His Honour Yes, I’ll deal with those. Accused --that may work-- His Honour Yes. Accused --to our advantage and-- His Honour I’ll have a look at those now. So if you don’t go for a while – hang around. Now what I’m going to so is – well I may – I’ll have to reconvene the Court, I think, after I’ve looked at those questions before I formally adjourn for the day. Crown Prosecutor Your Honour, the practical difficulty of this is that, that the questions can’t be in a concluded form until evidence-in-chief is finished. I’m not trying to make this trial longer than it otherwise will be but I would have thought practically I can’t look at those questions prior to the conclusion of evidence-in-chief. It may well be that the accused can’t properly formulate the questions until such time as evidence-in-chief is concluded and even if he were to prepare a series of questions it may be that he would wish to change some of those questions in the light of the answers in evidence-in-chief. I appreciate that there is a time imperative operating but it would seem to me the more prudent and probably ultimately more time effective course would be to wait until evidence-in-chief was concluded before the extent and form of the questions was settled. It may be that some of the questions are just irrelevant, given answers in evidence-in-chief. His Honour No, I understand all that. What I thought was I might look at them to see whether any of these would be totally inadmissible. Crown Prosecutor Yes, your Honour. His Honour Wrong form, everything like that and perhaps-- Crown Prosecutor Yes, your Honour. His Honour --be able to assist Mr Clark in that regard so he could re-formulate them in his mind today. Crown Prosecutor Yes, your Honour. His Honour If they don’t fall into that category then I agree with you that I can’t really give that final approval for them until that evidence has been concluded and we have a look at them but it may – just wait and see – it may just assist and I’ll have a quick look at them and see what form they’re proposed to be asked in. Crown Prosecutor Your Honour, I’d be opposed to a course of action which led to the Court in effect being assembled without the Crown there for the purposes of determining what the questions were or whether the questions were appropriate and that’s the reason I’ve suggested the course that I have because if it takes that course then there is no suggestion that I could have or would have shaped my evidence-in-chief to match a particular line of questioning which the accused proposed to take and-- His Honour I suppose the only alternative for that is I could say to him “Question number 22 is in a totally inappropriate from. You should perhaps think about re-wording that and putting it in a proper form. If you wish to ask question number”—etcetera. But a quick glance at them, I’m not sure I’m going to have that trouble Crown Prosecutor May it please the Court. His Honour I haven’t read them in detail but – just give me a moment. Crown Prosecutor Certainly, your Honour. His Honour Just let me glance down and see if there’s a significant problem here I’ll identify. It raises something I hadn’t thought about. If the accused wishes to refer a witness to a document, a photograph or something else, we have Mr Shields standing there reading the questions. Crown Prosecutor Yes. His Honour But it’s not his duty to show a photograph or a-- Crown Prosecutor No, your Honour, it’s not. His Honour --statement or something like that. So I suppose one way of doing it, just thinking about it, is that the question is asked. If Mr Clark wishes then the accused to be show – sorry, the accused – the complainant to be shown a document, for instance, I suppose he could say himself to me “I would like the witness shown a document”. Crown Prosecutor Yes, your Honour. The document would then have to be conveyed to the CCTV room, of course. His Honour Yes, sure. Crown Prosecutor Yes. His Honour And then Mr Shields would continue asking the questions. Crown Prosecutor Yes, your Honour. Once the-- His Honour I hadn’t thought of this but-- Crown Prosecutor The mechanics would be that Mr Shields would be required to ask a question to the effect that has the witness seen the document, has the witness read the document, has the witness understood the document and then to continue with the questioning. His Honour I suppose that as some stage I might have to step in and deal with some of those formal matters. Crown Prosecutor Your Honour, yes, it may be that – your Honour, the difficulty with that is that your Honour can’t be seen to be entering the forum. The-- His Honour And I would hope all I would be doing is just-- Crown Prosecutor Facilitating. His Honour --saying “Look, there’s a formality here. Firstly if you’re shown a photograph, do you recognise”-- Crown Prosecutor Perhaps if your Honour were to adopt a neutral format such as “At this stage the accused wishes a particular document be shown to the witness and I’ll ask the Sheriff’s Officer to take the document to the CCTV room for that effect or to that purpose”. His Honour Yes. Crown Prosecutor And then Mr Shields could ask the questions about having seen, having read, having understood before proceeding with the other questions which the accused wishes to ask. His Honour But Mr Shields would have to have those provided to him to ask, would he not? He couldn’t do it off his own-- Crown Prosecutor He can’t do it off his own bat but it would, I presume the accused would indicate the point in the questioning at which the document was to be adduced. His Honour Yes. Crown Prosecutor And it would follow logically that once that process of taking the document to the CCTV room had occurred then at that juncture Mr Shields would ask the series of formatted questions which draw the witness’ attention to-- His Honour Well then what I might have to do is where that doesn’t occur ask Mr Clark to insert those questions in there. Crown Prosecutor Yes, your Honour. His Honour To cover that. Crown Prosecutor Yes, your Honour. That’s what I’m suggesting. His Honour And then they would be before Mr Shields and he would ask them. You follow what the discussion is about? Accused Yes, I understand. Referring to the-- His Honour Because you’ve got to identify the document. Accused That’s right, yes. His Honour You’ve got to make sure the witness knows what the document is. Accused Yes. His Honour And things of that nature. Accused For, for instance-- His Honour They’re formalities. Accused Yes. For instance, Senior Constable Grimmett’s statement. It’s not – I don’t think it’s appropriate for me to hand it up but I’d be calling the Crown to supply that-- His Honour Yes-- Accused --to the witness. His Honour --you can call for the statement to be produced to the Court. Accused Yes. And that was my intention. Let them supply the original copy with – that way there’s no – and there was only just one photograph. His Honour That’s all right. You don’t have to reveal what-- Accused Yes. His Honour --any of this is about. It was just a matter that occurred to me. Accused Yes His Honour Well I understand the Crown’s point. I think that while I will have a look at these I’ll just leave it then and at the conclusion of (the complainant’s) evidence then we’ll adjourn and we’ll take these up and I’ll indicate any problem I have with them because at that time the Crown can be fully aware of what’s going to be asked because you will have completed your examination-in-chief. And I can deal with any objections or anything of that nature. Accused Yes but I object to the Crown receiving a copy of the questions. His Honour They won’t till after they’ve concluded their examination-in-chief. Accused And I object to them having them in advance. His Honour They won’t. After they finish their examination-in-chief-- Accused Yes. His Honour --then I can’t see any reason why they can’t have those questions. Accused Well, I do. I don’t-- His Honour What, what’s the disadvantage then? Accused I, I don’t think any lawyer hands his questions over to the Crown and says “These are the questions I’m going to be asking.” That, that, that does not happen. Crown Prosecutor It does, as a matter of fact, your Honour, in relation to 293 proceedings or 293, 294 questions. That’s the very process that’s adopted. The-- His Honour But the – look – thanks but being practical-- Accused Yes. His Honour --once that occurs there’s no disadvantage to you. Where there is – there can be an advantage is if there’s going to be an objection to something-- Accused Yes. His Honour --you can know beforehand. Accused Very good. His Honour And, and-- Accused Okay. His Honour --deal-- Accused Okay. His Honour --and deal with it. Accused Yep. His Honour And say “Okay, well, can I ask it this way”? Accused Yes. His Honour “Or can I do it this way”. Accused Okay. That makes sense. His Honour So you know, as long as they’re not available till after that time I don’t see any disadvantage to you. Well that being done, and we’ve got nothing further unless of course – and you could raise those documents you were-- Accused Uplifting, yes. His Honour Yes – show us-- Accused Is the carton here? His Honour --let us know what ones you may like Photostatted, bearing in mind what I said to you, it’s got to be very limited. Accused Yes.

During the adjournment the appellant elected for trial by judge alone and the Crown consented. After an appropriate delay his Honour recommenced the trial before himself alone. As had happened in the presence of the jury panel, the appellant stood mute when the charges were read to him and his Honour directed the entry of a plea of not guilty on each count. His Honour asked the appellant whether he was satisfied with the directions that he had been given and the answer was that he was. There was a further short discussion about the questions to be asked of the complainant, which by then had been reduced to writing by the appellant and, I think, typed out by the judge’s associate. There were discussions about security during the trial, calling for statements, costs and other matters. The Crown opened the case briefly to his Honour. The Appellant opened briefly at the conclusion of the Crown’s opening.

This was said (AB 764) - His Honour Now, I will again formally nominate Mr Shields, Registrar of the Court, to ask questions on your behalf. Should Mr Shields be here during the examination-in-chief – I don’t really see any reason? Crown Prosecutor Your Honour, as I understand the process -- His Honour He’s just going to read out questions which he’s handed. Crown Prosecutor Yes, your Honour. His Honour So I don’t think we need to have him in court.

The complainant was the first witness called by the Crown. He did not enter the Court room but gave evidence by closed circuit television. At the conclusion at the evidence-in-chief the television link was turned off and there was this debate (AB 775) - His Honour Right Mr Clark, do you have some questions you’d like to me to look at? Accused Yes your Honour. His Honour Okay, now these should now be available to the Crown. Accused I object to that your Honour. His Honour Well I don’t see how you can. The evidence-in-chief has finished. The evidence the Crown is going to-- Accused Yes. His Honour --lead from the witness is finished. Accused Yes I understand that. His Honour Everything you ask from now on the Crown will hear you as you asked it? Accused Yes. His Honour I suppose I could allow you to ask question by question, wait to see if the Crown Prosecutor objected, then deal with each objection as we go, which means asking the witness to leave the Court, I deal with the objection back we come, put him in again. Accused Very well your Honour His Honour It’d be very tedious. Accused Very well. His Honour I can’t see any-- Accused Under protest I shall-- His Honour Well no if you protest we can do it that way. I want to do what you believe is fair to you, but you can see what we’re going to go through. Accused Let me just give you a little example right. If I was cross-examining him in-chief myself, they don’t have forewarning of my questions. His Honour No they don’t. Accused He has to respond, I move on to the next question. His Honour Now hang on can we just stop there. Accused Yes. His Honour You ask the question. Accused Yes. His Honour If it’s not objected to he answers it. Accused That’s right. His Honour Then you move on to your next question. Accused Yes. His Honour Not objected to, he answers it. Accused That’s right. His Honour If it is objected to he does not answer. Accused That’s right. His Honour We then have a discussion as to why it may be objectionable or not. Accused Yes, yeah my only concern is-- His Honour No, if you want to do it that way, that’s fine, but I’ve got to say to you it may become very, very slow. Accused I understand that. Perhaps if you could quickly browse through them and say this is perfect or it’s not, we’ll proceed that way. His Honour I want you to understand that I’m not going to give legal advice to you at anytime during this case. Accused Oh I understand that yes. His Honour All I will simply do is my part, which is to see whether I believe you should be entitled to ask these questions. You’ve got to remember that I don’t know a lot about this case, it’s coming to me as I hear the evidence and the Crown knows a lot more than I do and may very well object. Accused Yes. His Honour Or may object to even some questions I think-- Accused Yes. His Honour --at this stage are permissible and then I’d hear the Crown’s objection. Accused Yes. His Honour But I’m quite happy to do it that way. Accused Just one quick word. I think you have to decide whether – you, you have to decide whether the question is in the correct format. If it’s not in the correct format, you have to say “Mr Clark, question number 4”-- His Honour Yes, I’ve got to indicate that to you and perhaps assist you to put it in the correct format-- Accused Yes. His Honour --but the correct format is of course very different to the other matters I’m referring to…

The transcript does not make it clear, but it was presumably then that his Honour read the list of questions prepared for the cross-examination of the complainant. A copy of the document was marked 14 for identification.

There was a statement which the complainant had signed on 19 January 2005 and the appellant had a copy. Some of the questions in the document MFI 14 referred to certain paragraphs in the statement and his Honour asked the appellant whether he would wish to refer the complainant to the statement. The appellant raised no objection to the statement being shown to the complainant. At the same time his Honour, having recognised that some of the questions might be objected to as inadmissible under s293, directed that the questioning not proceed past a certain point until the Crown should have a chance to object. The debate continued (AB 779) - His Honour I believe that they should be discussed openly, because they may very well infringe various Acts. Accused What do you mean they should be discussed openly? His Honour Well, you have told me you don’t want the Crown to see them. Accused I see. His Honour It’s very difficult for me to discuss it with you-- Accused Yes. His Honour --by indicating what the questions are. Accused Right. His Honour But those questions would seem to me infringe or possibly infringe, various Acts of Parliament. There are very strong Acts-- Accused Okay. His Honour --about asking questions of that nature. Accused That’s okay. His Honour So I think we really should have that discussion now, or if you like, you can get to that stage and then pause and we can have the discussion then. I don’t mind which way you do it. Accused Is it the – the quotation, the first part? “I won’t tell anyone”, is that the only part? His Honour Yes. Look, part of that may be okay, but there are a number of these from thereon. Accused Right. His Honour It’s really a matter we’ve got to discuss. Accused Okay. His Honour Because it’s a difficult area and it’s just got to be discussed. Now I don’t mind. We can do it now, or if you like, when we get to that spot, then we’ll have the discussion. Accused Yeah, probably best to do that. I’m not-- His Honour That’s fine, we can take it forward to there. Accused Yes, well what-- His Honour Then I will direct Mr Shields he is not to ask any question past paragraph (24) (a) and (b) and at that stage, we will stop and then we will have to discuss these questions.

Mr Shields was brought into Court and his Honour directed him about the arrangement. The video link was restored and the cross-examination began. Mr Shields read questions and the complainant answered them. A number of objections were taken by the Crown prosecutor. The manner in which they were dealt with has been criticised in this appeal and I shall defer consideration of those matters for the moment.

The purpose of the restriction brought about by s294A is to spare the complainant in the trial of a person accused of a prescribed sexual offence the need to answer questions directly asked of him or her by the person said to have committed the offence. The reasons and the justification for the restriction need no elaboration here, but since the section takes away or modifies rights which accused persons are ordinarily taken to possess, it should be applied in a manner no broader than is sufficient to achieve its purpose. By that standard the appointment by his Honour of the local registrar was appropriate. The registrar was by all appearances a person capable of fulfilling the function contemplated by s294A and asking the appellant’s questions.

It was submitted by Mr Ramage that the person appointed “should have had the capacity to advise the accused to seek legal advice where he was faced with difficult legal decisions or questions of law that were beyond him”. It was submitted that the need for fairness dictated the appointment of a legal practitioner.

Reference was made to views expressed by the New South Wales Law Reform Commission in its report on the introduction of the legislation, paras 3.65 to 3.72 of which are extracted in para [24] of Mason P’s judgment in MSK and MAK , particularly this passage at 3.69 - …Since the Commission considers that appropriate testing of the complainant’s evidence can be undertaken by a legal representative appointed by the court, the fairness of the trial, from the accused’s point of view is not, in its judgment significantly compromised by prohibiting the accused from conducting the cross-examination in person.

Notwithstanding the reference in the report to a legal representative, there is no requirement in s294A that the appointed person be a qualified legal practitioner, and it is the will of the Parliament that must be respected, not any contrary view or recommendation of those taking part in the process of law reform. There is, moreover, the plain requirement of subs (4) that the person appointed not give the accused legal or other advice.

I would reject the submission that the appointment of the registrar was inappropriate and unfair because he was not a legal practitioner.

Nothing in s294A requires the appointed person to be absent while the complainant is giving evidence-in-chief, and it is not easy to see how the purpose of the section may be advanced by such a requirement. On the other hand, asking the questions in cross-examination, while perfunctory, cannot have been intended to be carried out without understanding. In MSK and MAK Wood CJ at CL, with whom I agreed, said, at [82], that the restriction on giving legal advice does not extend to the formulation of questions. One can imagine that there will be cases in which the appointed person cannot effectively and intelligently cross-examine without having heard the evidence-in-chief. Such a cross-examiner could, if the complainant appeared not to understand a question, put it into other words, aiding the complainant’s understanding and so furthering the purpose of the section and the interests of justice.

Equally, no reading of S294A reveals any requirement for an unrepresented accused to inform the Court of any question it is proposed to ask the complainant, let alone write out every question, the accused having read only the complainant’s statement and not having heard the evidence-in-chief.

In my opinion, a requirement that an accused person write out all questions in advance is likely to give rise to the risk of a miscarriage of justice. It is not unknown for witnesses, particularly children, not to give evidence in accordance with statements they have made, sometimes describing events differently, sometimes omitting mention of events. A real risk would arise in such circumstances that a reference in a proposed script of questions to matters dealt with in a statement but not ultimately emerging in evidence might have the effect of restoring or even establishing the Crown case. To guard against that risk, an unrepresented accused would need the kind of exceptional vigilance that he might well lack. It might be difficult for an unrepresented accused to divert the court-appointed questioner from the script. The damage might be done before the unrepresented accused could act, particularly if the accused had the impression that he could not give any direction to the court-appointed questioner without prior reference to the trial judge.

Moreover, the requirement may ultimately be impossible to meet. To a significant degree any question to be asked of a witness in cross-examination may ride upon the answer just given. The requirement to frame all questions in advance may impart a rigidity which robs a cross-examination of its effectiveness.

On appeal, the Crown sought to justify his Honour’s requirement by reference to s293. The section is designed to protect complainants against unwarranted intrusion by cross-examination. When an accused person who frames the questions to be asked of the complainant is unschooled in the law, and may therefore be supposed to be ignorant of the limits imposed by the section, the trial judge needs to take special care to see that the requirements of the section are respected. Consequently, in my opinion, a trial judge will be justified in explaining to an accused person the nature of the questions proscribed by s293 and requiring the accused to formulate any proposed questions that might infringe the requirements of the section. In my view no criticism could properly be made of a requirement to inform the Court in advance of any such questions. The manner in which that might be done would be a matter for the trial judge, but requiring a written draft to be provided would not seem inappropriate. Some such procedure was approved in R v McGarvey (1987) 10 NSWLR 632 at 635.

The Crown sought to take the matter further, however, and submitted that the need to observe the requirements of the section, namely to identify any proposed question that might offend and to record in writing any question nevertheless held admissible, justified the requirement to draft all the questions in cross-examination. It was submitted that any question about the events on the day in which the first two offences were said to have been committed was potentially a question about the complainant’s sexual experience or lack of experience.

If that submission were correct, there would, I think, have to be a practice by which trial judges required accused persons or those appearing for them to draft all their proposed questions in case any should come within the purview of s293 so as to precipitate the further consideration that that would entail. The Crown accepted that there is no such practice, but submitted that for the most part persons accused of having committed prescribed sexual offences are represented by counsel, who may be trusted to draw to the attention of the trial judge any question that might need consideration. So an unrepresented accused, such as the appellant, could justifiably be treated differently.

I do not accept that every question to be asked about the events relied on for the first two counts potentially came within the purview of s293. Most, if they came within subss (2) and (3) would be exempt by virtue of subs (4). I do not think that the section can be used to justify the prior disclosure of all questions intended to be asked.

Neither, in my view, could the requirements of s293, without other compelling reason, justify disclosure of any question before the complainant had given evidence in chief.

I note that upon objection by the appellant, his Honour withdrew his proposal to make the draft questions available to the Crown. That was appropriate. Although the Crown may be entitled to notice of particular questions, for example for the purpose of ascertaining admissibility under s293, it has no general right to know in advance what questions its opponent intends to ask its witnesses.

In my opinion, his Honour’s requirement was much wider than could have been justified by s293. I think that the exclusion of the court-appointed questioner during the complainant’s evidence-in-chief and the requirement that the appellant frame and submit all his proposed questions before the complainant began to give evidence gave rise to the risk of a miscarriage of justice. Of course, such a miscarriage may not have eventuated. The question for this Court is whether it did.

I have compared the draft questions with those asked by the registrar. They generally correspond. Some were recast into appropriate form, following objection. Others were rejected as contravening s293 and they will be considered later. They do not appear to have been answered in ways which were apt to invite new enquiry.

The Court invited Mr Ramage to demonstrate how the requirement to frame the questions in advance had caused the trial to miscarry. He pointed to questions that were objected to, namely - What colour were your jeans with the broken zipper? and I put it to you that you saw the accused’s car pull into his daughter’s driveway a few doors up from (a certain person’s) home.

It does not seem to me that the problems posed by these questions resulted from any requirement to record them in advance. They were double or multiple questions, properly objected to.

Then Mr Ramage submitted that the appellant was required in cross-examining the complainant on his statement to put the document into his hand and point out to him the relevant passage. In this way, it was submitted, significant evidence came in and was acted on by the trial judge which had not been adduced in chief.

In the complainant’s statement made on 19 January 2005 to Constable Hatchwell there was a passage dealing with the journey to the shop where the appellant collected the demonstration disc, thus - I got in the car, and as I did, the man’s mobile phone then rang, and he answered it and said…

As the appellant knew, the complainant had given a somewhat different account to Constable Grimmett. In the relevant part of that officer’s statement the complainant is quoted as having said this on 4 December 2004 - When I got in the car he asked me if I wanted a job. He then made a call on his mobile phone to someone and said he would be arriving shortly to pick up the demo disc.

The Crown prosecutor opened the case broadly and made no mention of the phone call or of the visit to the shop. Those events were not essential to the proof of its case. The Crown prosecutor took the complainant in chief to the point at which the appellant had offered the complainant a lift and the two of them were alone in the car. The evidence continued (AB 766) - Q Did he say something then to you? A I can’t remember, sorry. Q Did he discuss anything with you at that stage? A I’m pretty sure at that stage it was about the job. Q Do you recall what he said to you about a job? A He goes, “Do you want to”, something like – I’m not really sure, I can’t really remember now. Something about along the lines of “Do you want to know about the job now” or something like that. Q Right. And did you go somewhere then? A Yeah. We went to Rivers.

Later on the Crown prosecutor came back to the conversation in the car, but there was no evidence of the appellant’s use of his mobile telephone.

The appellant was aware of the discrepancy between the complainant’s statements to the two police officers and intended to cross-examine him about it. These questions appear in the draft MFI 14 - a. Reading from your statement “ I got in the car, and as I did the man’s mobile phone rang, and he answered it ”. b. I put it to you that this is a lie? c. On the 4 December 2004 you had a telephone conversation with SC Roy Grimmitt? d. Did you tell Police Officer Grimmit the truth? e. Did you tell the officer, referring to the accused “ He then made a call on his mobile phone to someone and said he would he arriving shortly to pick up the demo disc ”. See SC Roy Grimmitt 3 May 2005 para 7. f. Why did you change your previous statement? Refer to 7 & 9 above in Bold . g. You have a mobile phone and you know full well that when you make a call from your phone a record is kept? h. I put it to you that a short time after you told SC Grimmitt you had a conversation with (SB). You told (SB) what you told the police and (SB) said, “You dick head they can check his phone records and the Fucking Rivers Shop has surveillance cameras”.

The registrar began asking questions and there was this evidence (AB 793) - Q Reading from your statement, “I got in the car and as I did the man’s mobile phone rang and he answered it.” I put it to you that this is a lie? A No. Q On 4 December 2004 you had a telephone conversation with SC Roy Grimmett? A I’m not sure who that is. His Honour Well, can I assist to this degree. I take it that SC is Senior Constable? Accused Yes, your Honour. His Honour Does that make any more sense to you? Complainant No. Can you please repeat the question with-- Q The question would read on 4 December 2004 you had a telephone conversation with Senior Constable Roy Grimmett? A I’m not sure. Q Did you tell police officer Grimmett the truth? A If I talked to him, yes. Q Did you tell the officer, referring to the accused, he then made a call on his mobile phone to someone and said he would be arriving shortly to pick up the demo disc?

The Crown objected on the ground that the complainant “has no access to…what he is alleged to have told the police officer”. The Crown prosecutor asked for Constable Grimmett’s statement to be shown to the witness. There was this exchange (AB 794) - His Honour So you want the statement before the witness? Crown Prosecutor Yes, your Honour. His Honour All right. Accused That, that’s what I’ve intended, your Honour. It should-- His Honour No, that’s fine. Accused --it should’ve said. His Honour Can we have that statement, the Senior Constable Roy Grimmett 3 May 2005 paragraph (7). Accused And if this comes up further, it’s the same. We want (LH’s) statement etcetera, etcetera. His Honour All right. Accused And we want them marked for – as exhibits etcetera, etcetera. His Honour Well I don’t know. If you wish to tender anything you can, if the Crown wishes to tender anything they can I’ll rule on it at the time. Accused Yes.

The questioning continued (AB 794) - Q Did you tell the officer, referring to the accused, “He then made a call on his mobile phone to someone and said he would be arriving shortly to pick up the demo disc” – Senior Constable Roy Grimmett 3 May 2005 paragraph (7) ? A Yes. Q Why did you change-- His Honour Just stop a second. Did you understand that question? That question that’s been asked is not what you read there but did you tell that officer, referring to the accused who is Mr Clark-- A Yeah. His Honour --did you tell that officer those words? That’s the question you’re being asked? A I’m not sure. Can’t remember. His Honour Okay. Q Why did you change your previous statement, refer to (7) and (9)? His Honour Okay. Well I think the only way you can do that is by reading it to him. I think the only way you can do that is – well – Mr Crown , what’s been asked is this. Don’t, don’t answer this. Why did you change your previous statement – refer to (7) and (9) in bold. That, in effect, are the two statements which have been read out. One, I think he agreed to, the other he couldn’t – either couldn’t remember or didn’t agree to. Crown Prosecutor Yes, your Honour. His Honour So you may wish to object that that. Crown Prosecutor I do, your Honour. His Honour And I don’t think he can be asked because he hasn’t agreed to the second – that he said the second of those. Okay. So that’s got to be rejected…

Not long afterwards the Registrar was cross-examining on another part of the complainant’s statement and there was this exchange (AB 797) - Q I put it to you that all of paragraph (8) is a lie and never happened. Crown Prosecutor I object to that form, your Honour. His Honour What’s paragraph (8)? A Paragraph (8) which-- His Honour Just half a sec. Mr Clark, what’s paragraph (8)? Accused That’s referring to his statement, your Honour. His Honour To his statement? Accused Yes. His Honour Okay. Paragraph (8) of your statement, would you like to read that? Should we have read onto the record because I don’t have his statement. Don’t I need to this either tendered or read onto the record? Crown Prosecutor Your Honour, yes. I’m sorry, your Honour. His Honour Otherwise this can’t make any sense at all to me. Accused I call for it, your Honour. His Honour Well he’s got it. Crown Prosecutor Your Honour, I-- His Honour Because technically I don’t – I don’t have the statement. Crown Prosecutor No, I appreciate that, your Honour. His Honour So unless it goes on the record, this question has no meaning. Crown Prosecutor Well perhaps I’ll read it – if I read it on the record or Mr Shields reads it onto the record and that way it’s put. Accused Well I don’t think Mr Shields should read it onto the-- His Honour Well okay, okay, just a second. Someone has to read it-- Accused Yes, I agree. His Honour --onto the record. Accused I agree. His Honour I have no objection if you read it onto the record, Mr Crown. Crown Prosecutor I’m reading from the statement of (the complainant) dated 19 January 2005 from paragraph (8) “On the way to the Rivers store the man was talking about some other man out at Forster that does the same thing and that he would take me out to Forster to meet him one day. He then said something about how much money I could earn. He said ‘You can earn anything between 6,000 and $11,000. I get 20 percent of the first one and 10 percent on the second one.’ I didn’t know what he was talking about at the time.” His Honour Now this question refers to that paragraph. Yes Mr Shields. Q I put it to you that all of paragraph (8) is a lie and never happened? A No, it’s not a lie.

Later on there was this debate (AB 817) - Crown Prosecutor Your Honour something concerns me. There are pieces or paragraphs out of various statements being put, the record doesn’t capture any of the contents of those statements. Now I don’t think the situation’s yet been laid where I can actually formally tender those statements but-- His Honour Well, can we deal with that because I got the feeling from Mr Clark that he wasn’t going to object to the statements being tendered. Accused No, no your Honour. I want them all in. Crown prosecutor Well if that’s the position taken by the accused I will tender them formally at the end of this witness’ evidence, otherwise the transcript, as it presently appears, is going to be incomprehensible to anybody looking at it at a later stage. His Honour Yes, I agree with that. Crown Prosecutor Yes your Honour. His Honour But if you’re not going to object to them then they would be tendered at the conclusion of this witness’ evidence. Accused That’s right, all the public witnesses. … Crown Prosecutor Your Honour, I tender the following statement of (the complainant’s mother) dated 8 April 2005 and a statement of (LF) dated 10 February 2005. Statement of (MM) dated 31 January 2005. The statement of Constable Roy Grimmett dated 3 May 2005 and a statement of (the complainant) dated 19 January 2005. His Honour Any objections? Accused No objections your Honour. His Honour Do you understand that in not objecting they now become evidence in this case? Accused Yes, your Honour.

The statements, including that of Constable Grimmett, exhibit E, and that of the complainant, exhibit F, were tendered and received into evidence.

The record shows that the text of what the complainant said to Constable Hatchwell and Constable Grimmett went before the trial judge because the appellant raised no objection to its tender. It appears to me that he encouraged its tender because he wished to have both statements before the trial judge in order to draw attention to the differences between them in his attack on the complainant as a reliable witness. Whatever the effect of the evidence was, its receipt was not the result of any requirement to frame questions in advance.

During cross-examination his Honour deferred consideration of a number of questions that had been objected to. The complaint on appeal was that his Honour did not return to consider those matters. That complaint has not been made good. After the complainant had left the courtroom after the first series of questions his Honour dealt with a large number of matters. First there were the objections under s293, and I shall consider them when dealing with another complaint. Then his Honour returned to deal with deferred objections. I will not extract what was said; it covers ten transcript pages. On a number of occasions his Honour suggested ways in which questions might be framed in admissible form. There were occasions when the meaning of the question as framed was not clear to the complainant. On such occasions his Honour explained what was meant.

At the conclusion of the debate his Honour invited the appellant to frame further questions. That was done and his Honour’s associate typed a further page, which was added to the draft MFI 14. The complainant was brought into Court and the Registrar asked the additional questions. When that was over there was this exchange (AB 861) - His Honour I think that’s the totality we have written out at the moment. Mr Clark, would you now like to consider any other questions you may like to ask, have time to consider that and write them out, or are you satisfied-- Accused I’m satisfied your Honour. His Honour --with the cross-examination. You’re finished now? Accused Yes, the witness is-- His Honour But you have finished? Accused --I’m excused, yes. His Honour You don’t wish to ask anything more? If you do, I’ll give you time.

It does not seem to me that the manner in which the questions were required to be framed inhibited the cross-examination. The appellant appears not to have been prevented from raising any topics which it was permissible to raise. In my opinion the effect of any perceived rigidity was removed by the trial judge’s careful attention to the objections taken and helpful contribution to the re-drafting of questions. (iii) Requiring the cross-examiner to put the complainant’s statement into his hands when asking him questions about it.

The next submission was that his Honour erred in directing the appellant that the portion of the complainant’s statement to be challenged should first be read to him, with the effect that his memory on that topic was thereby refreshed. A handful of instances were referred to, but it is unnecessary to recount the detail of them. The submission implied that evidence was thereby adduced that would not otherwise have been adduced. The tender of the complainant’s statement with the appellant’s consent shows that no such thing happened. It was not otherwise submitted how any refreshment of the complainant’s memory could have affected the result.

There is no substance in this submission. (iv) Requiring the cross-examiner to accept the complainant’s denials without testing them.

The next submission was that his Honour erred in requiring the appellant to accept as final, without the opportunity to test them further, the complainant’s denials of propositions put to him. There were three such instances. The first concerned a question which asked whether the complainant knew that SB had been harassed because he was homosexual and had left school. I shall defer consideration of it until I deal with a submission that his Honour erred in holding certain question inadmissible under s293 Criminal Procedure Act .

The second instance arose when the Registrar was asking the complainant questions about the telephone call in the car on the way to the shop. It will be recalled that there was evidence that the complainant told Constable Grimmett that the appellant had made the call and Constable Hatchwell that he had received it. I have extracted above the passage of cross-examination which ended when his Honour rejected the question why the complainant had changed his statement, because the complainant was appearing not to accept that he had. It was submitted that the matter was important because “it on the original prosecution case linked up the obtaining of the demonstration disc which was alleged in turn to contain the pictures shown to (the complainant)”, whereas, as police officers later conceded under cross-examination, there was no record that such a call was made on the appellant’s mobile telephone.

I do not think that any miscarriage resulted. His Honour was correct not to allow the question why the complainant had changed his story when the complainant was not sure that he had. The appellant could have pursued the matter when given a chance to frame further questions as the cross-examination drew to its close, but he did not do so. It is not apparent how any answer to the desired question might have assisted the appellant. It was established by the tender of the statements that the complainant had changed his story. The appellant could criticize his reliability on that account. The appellant could make the further criticism that the complainant was not prepared to concede that he had given two inconsistent accounts, though he plainly had. Whatever the prosecution case might “originally” have been, the appellant’s obtaining the disc from the shop was of no more than incidental importance in the Crown case as conducted before his Honour. The essence of that part of the case was that the appellant had such a disc at the house and used it there. Its provenance was only of passing interest.

I would reject this submission.

The third instance concerned the consequences of the complainant’s denial that anybody but he and the appellant were present at the appellant’s house on 4 December 2004. It also falls to be considered with questions arising under s293 and I shall defer consideration of it. (v) Preventing cross-examination of the complainant on motive.

The next submission was that his Honour erred in preventing the appellant from raising with the complainant a motive he was asserted to have had to concoct his story. The statement of LF related a conversation between the complainant and LF in which the appellant asked the complainant about a person whom I shall call DJ. It was asserted by the appellant at trial that DJ had made a claim for compensation to the Victims’ Compensation Tribunal, but there was no evidence what the nature of that claim was. The Victims’ Compensation Tribunal had refused to supply information about it. The appellant asserted that DJ was involved in a “scam”, though what was meant by that term was left unexplained. The appellant desired to ask the complainant questions that may be summarised thus - b. You told (LF) that the accused was talking to you about (DJ); c. I put it to you that the accused said “I won’t tell anyone you’re gay but are you setting me up in a DJ scam? SB told me”; and d. I put it to you that that is why you do not mention DJ’s name in your statement.

The complaint on appeal was that his Honour deferred consideration of the matter but failed to come back to decide whether to admit the evidence over the Crown’s objection.

The transcript shows that his Honour had difficulty in understanding how the answers to the questions, if permitted, could bear on the issues for determination. I, too, have that difficulty. The questions would have been a waste of time in my opinion. Any answer would have had no probative value. The questions were rightly excluded. (vi) Redrafting the appellant’s questions.

The next submission complained that his Honour had re-drafted questions framed by the appellant. That, it was submitted, was impermissible, because s294A(3) provided that the court-appointed questioner “is to ask the complainant only the questions that the accused requests that person to put to the complainant”.

This submission was misconceived. There was a long debate in which his Honour dealt with objections raised by the Crown to questions drafted by the appellant. I will not reproduce the debate here. Objections were properly taken by the Crown. The questions as drafted were properly disallowed. But favourably to the appellant, his Honour did not simply reject any such question. Instead he suggested, when it appeared possible to do so, ways in which the questions might be framed so as to be admissible. The appellant accepted the help that was offered. (b) Preventing the appellant from raising the complainant’s sexual reputation.

It was the Crown case that anything that happened between the complainant and the appellant on 4 December 2004 did so when they were alone together in the appellant’s car or at his house. The defence case on the events of that day was that the incident in which there was a phone call and visit to the shop never happened. There was no disc. The complainant did visit the appellant’s house on that day. He played with SB. The appellant did not invite the complainant to take part in any inappropriate activity. No pornographic images were shown. There was no incitement to the complainant to expose his penis. The complainant and SB were alone together in the house for between one and one-half and two hours. At the conclusion of that time the complainant kissed SB. His erect penis was sticking out of his shorts, whose zipper was broken. The appellant saw what was happening, disapproved and took the complainant home straight away. SB had been forced to leave school because he was homosexual. The complainant knew this. In order to counter any report of his and SB’s sexual activity, perhaps emanating from the appellant, the complainant made up a story about the appellant, falsely stating that he had shown him pornographic images and had invited him to take part in pornographic activity as well as show him his penis. He never intended to tell the police such a story. He told one of his school friends, MM, but things got out of control when MM told his mother. So the complainant’s mother was informed and the police were called in. The complainant was forced to stick to the false story he had told MM about the appellant.

In dealing with objections raised under s293 his Honour first decided, correctly in my view, that a series of questions drafted by the appellant came within the section and were inadmissible. The draft questions included these – f. I put it to you that you knew your mate (SB) had been harassed out of school because he was a homo? g. I put it to you that you fabricated the story simply to discredit (SB) and transfer your guilt? h. I put it you that you only wanted (MM) to think you were straight and (SB) was the homo? i. I put it you that you only wanted to be covered at school? j. I put it to you that you had no intention of complaining to the police because you were at fault? k. I put it to you that you kissed (SB) on the lips whilst you had an erection sticking out of your jeans with the broken zipper? l. I put it to you that you were caught in the act and Accused said, That’s it. In the car. You’re going home”.

The questions were designed to bring out assertions that the complainant had taken part in sexual activity in the appellant’s lounge on 4 December 2004. Questions k and l did so directly. The remainder did so indirectly, for they had little or no probative value unless linked to the sexual activity asked about in k and l .

That position seems to have been accepted on appeal, for the submission was that the questions were admissible under subs (4) of s293 as adducing evidence of events forming part of a connected set of circumstances. It was submitted that his Honour erred in not so finding and in failing to give reasons for refusing to allow the questions. In that latter respect reference was made to R v Dimian (1995) 83 A Crim R 358.

As he had in other respects, his Honour, having decided not to admit the questions, tried to devise for the appellant a way to put questions that might go as far as possible towards putting the desired defence without contravening 293(5). At the conclusion of a long debate there was this exchange (AB 846) - His Honour What I, and I will give you a chance to comment on this, what is very much concerning me is that I should ensure that Mr Clark can put forward his defence. To do that it seems to be, to me, that it can be done this way – that this witness – the complainant –may be asked whether there were other people present in the house at the time he said he was there. It can be asked who they were, or it can be put to him that these people were present. It can be put to him they were in the lounge-room. It can be put to him – this part is difficult – but I will just use this phrase to begin with and think about it – that something occurred between him and (SB). Accused Yes His Honour That after that, Mr Clark took him home. Now that part of it I know you’re not totally happy about, but it seems to me it’s an innocuous way of getting over that part of it. Crown Prosecutor If the questions follow that format, your Honour, I wouldn’t object. His Honour Now we come to the next part. As I understand it it would have to be that he knew that (SB) was harassed. Accused Yes. His Honour --over a perception that he was a homosexual. Accused Yes. His Honour --and as a result left a school. Accused Yes Crown Prosecutor Well it would be more..(not transcribable).. to put “Did he know that (SB) was”-- His Honour Did he know? Accused Yes. His Honour Yes. Did he know. Accused Yes. His Honour If his answer is “no”, that brings it to an end. Accused Yes. His Honour If his answer is “yes”, then the next question you want to ask him is, as I understand it, “As a result of that, were you worried that because of your”-- Accused Mate-- His Honour --“friendship with (SB) that you may also have been hassled at school”? Accused Yes. His Honour That sails very close, but it’s “Were you worried”, not you did anything-- Crown Prosecutor Yes, your Honour. His Honour “Were you worried”? Crown Prosecutor Yes. His Honour If the answer to that is “yes”, then the next question is, and I suppose you’ll want to suggest this to him, that he then deliberately fabricated a story of what happened and told his mate? Accused Yes. His Honour He didn’t expect it to go any further. Accused That’s right. His Honour --but it did. Accused Yes. His Honour --and it’s all a fabrication? Accused That’s right and it’s clear from-- His Honour Hang on, don’t worry about that – that would have to depend on a number of answers on the way through. Accused Yes. His Honour In other words, if he denies some of those things then the trail goes cold and there’s nothing further you can do about it other than later on perhaps what their evidence you want to bring forward etcetera-- Accused Mm. His Honour --you can. Now, I know that’s not ideal. It seems to me it gives him a chance to put his allegations for the witness to deal with them, yet it not offend the section. I’m not asking you to agree, I’m just saying that that’s what I’ve got in mind because this is a very difficult task-- Crown Prosecutor I appreciate that and I’m analysing what happens here and what might happen in another place-- His Honour Yes, but even in another place, if I’m – as long as I’m – I mean the reason it would go to another place is if Mr Clark was found guilty. Crown Prosecutor Yes, your Honour. His Honour Now, if I’m not being unfair to him, then I doubt – maybe I can personally be criticised, “No, you shouldn’t have let him ask those questions”-- Crown Prosecutor I was thinking more about the other way, your Honour. His Honour In other words that I’ve stopped him from asking questions he should’ve been entitled to ask. Crown Prosecutor Your Honour, I’m not aware of any case where the interplay between 294 and 2750 has been considered, but I wouldn’t seek to dissuade your Honour from the course which your Honour has indicated. His Honour I may be criticised for doing that, but I don’t think it would be criticised against Mr Clark’s interests. Crown Prosecutor No, your Honour, I don’t-- His Honour That’s what I’m attempting to do at the moment, yet at the same time maintain the dignity of this witness. Crown Prosecutor I was going through the exercise of playing devil’s advocate to see if-- His Honour I appreciate that and I respect that, but I was just thinking the difficulty that that may satisfy what you need to do-- Accused Yes.

His Honour’s associate typed these supplementary questions and they became part of MFI 14 – 1. Were there other people present in the accused, Mr Clark’s, house at the time you said to were there on 4 December, 2004? 2. Who were those people? 3. Were they in the loungeroom? 4. Did something occur between you and (SB) ? [If the answer is no, go no further.] If yes: 5. After that did the accused, Mr Clark, take you home? 6. Did you know that (SB) was harassed over a perception that he was a homosexual and as a result left a school? [If the answer is no, go no further.] If yes: 7. As a result of that were you worried that, because of your friendship with (SB) , you may have also been hassled at school? [If the answer is no, go no further.] If yes: 8. Did you deliberately fabricate a story of what happened with the accused, Mr Clark, and tell (MM)? 9. You didn’t expect it to go any further but it did and it is all a fabrication isn’t it?

The submission on appeal was that the limited way in which the appellant was permitted to embark upon the topic effectively prevented him from pursuing it.

In my opinion his Honour correctly held that the questions framed by the appellant were inadmissible. They were directed to sexual activity said to have been engaged in by the complainant at the appellant’s house with SB. Although his Honour did not give detailed formal reasons, he sufficiently informed the parties during the long debate that he was rejecting the questions and why. There was in my opinion no failure to make sufficient record: see R v Dimian at 364. It sufficiently appears that his Honour was of the view that nothing in subs (4) excepted the proposed questions from the prohibition of subs (5). The only provision put forward as having such an effect was subs (4)(a). In my opinion the evidence failed the test of subs (4)(a) because it was not, using the words of (4)(a)(ii),evidence of events alleged to form part of a connected set of circumstances in which the alleged proscribed sexual offence was committed. In my view the temporal connection between the two events was not enough. The event contended for by the Crown, namely the attempt by the appellant to recruit the complainant, had no connection with the event contended for by the appellant, in which the complainant committed sexual activity with SB. The appellant was involved in the former but not the latter. The sexual activity was different. The two sets of alleged events were unrelated.

As to the criticism on appeal of the supplementary questions, in my view his Honour went further than he need have done to try to assist the appellant. His Honour’s requirement that the appellant accept the complainant’s denials, and not test him further, are to be seen in this context. The first complaint about that was the required acceptance of the complainant’s denial of the proposition put in question 6. The other related to his denial of what was suggested to him in question 1. I deferred consideration of these matters at paras [76] and [80]. In my view his Honour was correct in deciding that the appellant should be allowed to go no further once the complainant had denied the propositions. There was a real risk that if the appellant were allowed to proceed further he would raise matters proscribed by s293. (c) Wrongly admitting tendency evidence.

Before the trial began the Crown served on the appellant tendency and coincidence notices under ss97 and 98 Evidence Act 1995 . The material referred to in the notices included certain identified paragraphs in the complainant’s statement of 19 January 2005, SB’s statement of 27 September 2006, CB’s statements of 21 February and 30 June 2006, DJR’s statement of 9 August 2006 and Sergeant McCulloch’s statement of 3 June 2005.

Before the jury were empanelled the Crown tendered copies of the notices and the statements. There was this debate (AB 653) - His Honour Have you seen those documents. Accused Yes your Honour and I have no objections to those being tendered. His Honour I’ll make those then – what are we, this is an application is it? Crown Prosecutor Your Honour strictly speaking it is. It’s a matter by which the accused doesn’t object but that said-- His Honour Well I’ll just make them an exhibit on the pre-trial ruling or-- Crown Prosecutor Your Honour need to be satisfied that the material complies with the provisions of the Evidence Act in relation to tendency and coincidence. Accused Your Honour I notified the Crown that I’d be calling that as rebuttal evidence against them so I’ll be using that evidence against-- His Honour Yes, sure. Yes, but you realise I’ve still got to satisfy myself – I won’t do it this second. I will read that in my time. Accused Yes. His Honour And no doubt if you both agree-- Accused Yes. His Honour --hopefully I will be satisfied it’s proper evidence to go before the jury. Accused But I have strong evidence to rebut that so-- His Honour Sure, I accept-- Accused That’s – yes. His Honour I accept you’ve got a defence. Accused Yes. His Honour So don’t ever-- Accused No. that’s okay. His Honour --assume to the contrary, with all these things. Accused Very good, thank you your Honour. His Honour That’s the way we’ve got to-- Accused Yes. His Honour --proceed with things and I accept that you’ve got your defence. Accused Yes. His Honour And that’ll all come out in due course. Accused Very good. Thank you.

His Honour read the documents the Crown was tendering. One paragraph in the statement of SB troubled his Honour. There is no need to re-produce it here. His Honour expressed the intention to reject it and there was this exchange (AB 670) - His Honour I’m not going to permit the Crown, and I think they agree, that they would withdraw it to lead the first part which refers to an allegation that you had sex with (CB) , but they would be allowed to lead the last sentence, it may have to be changed very slightly. “After Peter had told me this I again told him I wasn’t interested in making any pictures for him.” All right, is that clear, is there anything you wish to say about that? Accused It is clear your Honour, but it’s my intention to draw all inferences and adduce all evidence from that statement. Every piece of it. His Honour Well you are going to have to be very careful, because some of that you may very well need my leave to do. Accused Yes. His Honour All right. I just wanted to deal with this part of it first as far as the Crown’s application is concerned. I think that was the only thing that troubled me in it. I didn’t notice anything else.

After the trial recommenced before his Honour without a jury, the Crown adduced its evidence, but of the documents identified in the tendency notice tendered only the statement of the complainant and that of Sergeant McCulloch. The statement of the complainant dealt only with the events on which the three counts were based. Sergeant McCulloch’s statement described what was taken when the appellant’s house was searched and incorporated schedules listing a description of the contents of compact discs created from material on the appellant’s computer hard drives. The Crown did not tender any other statement that had been listed in the tendency notice.

Consistently with what he had said to his Honour, the appellant himself tendered the other statements. That of SB became exhibit 13, that of DJM exhibit 15 and the two statements of CB became exhibit 17.

In giving judgment his Honour said this (AB 11) - …The Crown sought and was given leave by consent to lead tendency and coincidence evidence as per two letters tendered on a pre-trial application. The accused insisted on the whole of the statements of those witnesses being admitted in evidence, as I understand it, as part of his defence. The Crown Prosecutor warned that the admission of the totality of the statements may be prejudicial to the accused. I also warned him. However, despite those warnings, he required those statements to be tendered. Despite this, I will only have regard to those parts of those statements tendered pursuant to the Crown’s application, and not to other material in the statements, unless I have to rely upon it in relation to the accused’s defence. The Crown does not rely upon any other part of those statements, other than that set out in the letters, with one exception…

The exception that his Honour then identified has no relevance for present purposes. His Honour went on to give himself a direction on tendency and coincidence evidence that was correct and was not challenged on appeal.

On appeal counsel for the appellant made a number of submissions. First, it was said that no distinction was drawn as to which count in the indictment the evidence was said to be relevant.

Any failure to link the designated paragraphs and the relevant charges in the indictment did not, in my opinion, make the evidence inadmissible. The several paragraphs identified in the tendency notice described acts committed by the appellant, some like the invitations relied on for the first count, some like the invitation relied on for the second and some showing the possession and use of pornographic material like that relied on for the third count. Some paragraphs could obviously relate to more than one count in the indictment. If there were any ambiguity about such matters, the Crown could have been required to give particulars, but no request was made. Nothing in the circumstances I have described suggests why his Honour ought to have rejected the tender of the material for the failure to link up events described with the charges brought.

As it was, the appellant’s case was always that he wanted the evidence to be before the Court. He tendered the evidence.

The first submission has not been made good.

Secondly it was submitted that the statements of the complainant and Sergeant McCulloch, since they were directed to facts in issue, were inadmissible under s94 Evidence Act .

This submission appears to misconstrue what happened at the trial and the effect of s94. Notwithstanding any assertion in the tendency notices, statements of the complainant and of Sergeant McCulloch were incapable of proving tendency and were not tendered for that purpose. The intent and effect of s94 is not to make any evidence inadmissible, but to exclude from the purview of Part 3.6 evidence including evidence of conduct that is a fact in issue. The statements tendered by the Crown met that description. The tender was not objected to.

I do not accept this submission.

The final submission was that certain paragraphs in the statements ultimately tendered by the appellant, other than those identified by the Crown in the tendency notice, “contained highly prejudicial material and asserted the commission by the accused of other criminal acts”. No attempt was made to particularise or identify the “highly prejudicial material”. It was submitted that no attempt was made to remove or mask out that material. It was submitted that that placed the appellant in “an unfair position” and his Honour, as trial judge, in “an impossible position”.

I do not accept this submission. As it appears from his Honour’s judgment, he accepted the evidence of the complainant beyond reasonable doubt and it appears that his Honour did not take into account any evidence of CB or DJM that might possibly have been understood to constitute tendency evidence. Nothing in his Honour’s judgment suggests that his Honour departed from his stated intention to have regard only to those parts of the statements tendered by the Crown. (d) The hearing was contrary to the correct procedure (i) Persons should have been excluded from the hearing.

Under the provisions of s294C Criminal Procedure Act , his Honour allowed the complainant’s father, his stepfather and his mother to be present with him to support him as he gave evidence. The father and the stepfather were not required to give evidence. The mother was expected to and did, give evidence of complaint. The appellant objected at trial to the presence of the father and the step-father, but not of the mother. His Honour permitted them all to remain.

It was submitted on appeal that s294C(4) gave the appellant an implied right to object to the presence of all those persons. Subs (4) is as follows - (4) An accused person is not entitled to object to the suitability of the person or persons chosen by a complainant to be with the complainant when giving evidence, and the court is not to disallow the complainant’s choice of person or persons on its own motion, unless the complainant’s choice is likely to prejudice the accused person’s right to a fair trial (for example, because the person chosen by the complainant is a witness or potential witness in the proceedings).

It was submitted that none of those persons should have been present and that the appellant was prejudiced because the complainant had said to his mother “Don’t think I’m gay”. The presence of the complainant’s father and stepfather would make it difficult for him to admit, if true, that he had kissed another youth with “an erection sticking out of jeans”.

As I have already said, evidence that the appellant would have given about the complainant kissing in the manner described was rightly excluded. It was not submitted that the presence of the father and the stepfather otherwise prejudiced the appellant’s chance of a fair trial. It seems to me that his Honour was entitled by s294C to permit the father and the stepfather to be present and his decision to do so has not been shown to be wrong. There is no substance in this submission. (ii) Witnesses were not required to give evidence viva voce.

It was submitted on appeal, and may be accepted, that ordinarily in a trial on indictment witnesses must give their evidence viva voce : s38 Criminal Procedure Act . It was submitted that much of the evidence was given by tendering the statement of the relevant witness and asking the witness whether the contents of it were true. In that way a good deal of inadmissible evidence went before the Court. It had no probative value and brought with it a risk of unfair prejudice.

No attempt was made to particularise the evidence said to have that quality.

Although at the commencement of the trial the trial judge handed the appellant a document advising him about his rights and about the procedure to be followed at the trial, it was submitted that he was never told in that document or at all that he had the right to have any witness give evidence orally. His not being told led to a miscarriage of justice.

Contrary to that submission, it was made plain in the document of advice, MFI 1, that if material other than oral evidence was produced by the Crown the appellant had the right to object to its tender if there were some legal ground for objecting to it. It also appears that as the evidence of each individual witness was approached, the appellant was asked whether he objected to the tender of statements. He was asked whether he understood that if he did not object they would become evidence in the case. The appellant replied to the effect that he did so understand.

It was submitted in the alternative that insofar as the appellant did consent, his Honour failed to satisfy himself in accordance with the provisions of s190(2)(b) Evidence Act that the appellant understood the consequences of giving consent.

In my opinion the complaint has not been made good. His Honour directly asked the appellant whether he understood that if he did not object the relevant statement would become evidence and the appellant said that he did understand. So the requirements of s190(2)(b) were met.

There is no substance in this complaint. (iii) The accused was not informed of his rights. Under this head of complaint it was repeated that as the trial proceeded “an increasing amount of irrelevant but highly prejudicial material” was put before the Court. It was submitted that the appellant must have formed the mistaken belief that in order to cross-examine a witness on his statement he was obliged to tender the whole statement. It was in such a way that the prejudicial material came into evidence. It is correct to say that the appellant cross-examined witnesses on their statements called for them and tendered them. It is not correct to say, however, that he must have believed that he was obliged to do so. As the appellant was cross-examining one of the police officers, Constable Hatchwell, there was this exchange (AB 990) - Accused Your Honour at this point, I call for all statements and the tendency and coincidence evidence be tendered. His Honour No, I don’t think – you can’t call for that. You can call for statements-- Accused Yes. His Honour --but you can’t demand that the Crown do something. They will run their case as they’ve said a lot. Accused Very good. His Honour But you can call for the statements if you want to and you could tender them but perhaps, if you just wait, we’ll see what happens bit by bit as they come in. Unless you need them at this very moment. Accused No, no , no your Honour, no your Honour. His Honour And I’ve got to say to you, just be a bit careful about tendering those tendency statements. Accused No your Honour, they’ve got to be in. His Honour Hang on, but just listen to me-- Accused Yes, yes. His Honour --please. Accused Yes. His Honour It’s very difficult for me, I’ve got to be the Judge and also give you some advice. Accused Yes. His Honour But I am aware that they do contain some other allegations, which I would have to totally put out of my mind as being totally irrelevant to matters the Crown wish to raise in this case. The only matters I could accept in those in due course are those I gave them leave to raise, which are limited-- Accused Yes. His Honour --number of paragraphs. Accused Yes. His Honour I don’t want you to say anything. I just want you to think about that, okay? Accused Yes, well I do want to say one thing your Honour. My conscience is clear in relation to everything. His Honour I’m not suggesting it’s not. Accused No, I understand, I understand and I know you’re looking out for my interests. His Honour Yes, that you may not – because when you tender things they become evidence. Accused Yes, that’s what I want. His Honour And it may be you don’t want that. That’s what I’m just saying to you. Accused Yes. His Honour Just think about it, it’ll come up in due course. Accused From the beginning your Honour, I have wanted everything in. Every piece of evidence they’ve got I’ve wanted that in…

A few minutes later the appellant called for AB’s statement to be tendered. There was this exchange (AB 999) - His Honour But I’ve got to again invite you to think about it Mr Clark. Accused Your Honour I, I can assure you I know exactly where I’m going. His Honour Okay, Mr Crown. Crown Prosecutor Well your Honour I don’t object to the tender but it contains material which I need to place the record, I would regard as prejudicial to the accused’s interests. If not withstanding that position the Crown takes he insists on the tender, I will not oppose it. His Honour All right, I think-- Accused Your Honour I insist. His Honour Just a second. Accused Yes. His Honour You have thought about this? Accused Yes your Honour, I’ve totally thought about it. His Honour Which one is it? (SB) 27 September 2006? Accused That’s it your Honour, I think. His Honour Well the Crown have put that on the record. I have also indicated to you, you should think about this but you wish, despite that advice-- Accused Yes. His Honour --to tender it? Accused That’s correct your Honour.

It does not appear to me that the appellant had any mistaken impression that he was obliged to tender statements he was tendering or that he failed to understand that his Honour was urging caution. The transcript shows that the appellant knew that he had a choice whether to tender the statements or not but was not prepared to be diverted from his decision to tender them.

Then it was submitted that it became apparent that the appellant was incapable of conducting his own case, or at the very least that he needed legal advice. On the fourth day of the trial, following the appellant’s tender of material there was this exchange (AB 1083) - Crown Prosecutor The other issue and I raise it with considerable reluctance is the Kesavarajah v Queen point which is not to press a point, but a refinement if you like of the principle in R v Presser. His Honour And what’s that principle? Crown Prosecutor Basically that the conduct of the trial, the accused must be capable of conducting his trial. I’ve got no doubt that the accused understands the processes, but the accused seems to be acting constantly against his own interests and that concerns me.

Having been referred to Kesavarajah v Queen (1994) 181 CLR at 230 and R v Presser [1958] VR 45, his Honour said this (AB 1096) - His Honour I have read that decision, I don’t believe this matter falls into that category at this stage. Crown Prosecutor Thank you your Honour. His Honour Whilst Mr Clark’s way of defending himself maybe unusual he tells me he knows what he’s doing, where he’s going, he’s certainly a man of some intelligence, as is shown from the questions he drafted out and matters of that nature and I’m not sure that that’s a step I’d take at this stage. It appears Mr Clark is making certain choices, both you and I have indicated to him some of these may be dangerous, he seems to be electing to along that path.

It was submitted on appeal that his Honour’s response was inadequate. The document that had been handed to the appellant advising him about his rights did not tell him that he was entitled to seek an adjournment to obtain legal advice.

By the fourth day of the trial the trial judge was well aware that the appellant had had and had parted company with three solicitors. His Honour might well have inferred from that fact and the fact that the appellant was assiduously rejecting the advice he had been giving him throughout the trial that the appellant was unlikely to accept similar advice from a further legal practitioner.

In my opinion his Honour was correct in forming the belief that the events at the trial did not demonstrate that the appellant failed to come up to the minimum standards in R v Presser. Relevantly, the appellant had to understand the nature of the proceedings, something he clearly did, to follow the course of the proceedings, something he clearly did, to understand the substantial effect of any evidence given in support of the prosecution, something he clearly did, and to make a defence or answer to the charge, something he was intent on doing, though in a way that was not calculated to succeed and even likely to damage his own case.

In my opinion this complaint has not been made good. (iv) There was a failure to follow correct procedure of the close of the Crown case.

The next complaint was that at the close of the Crown case the appellant should have been given the opportunity to submit that there was insufficient evidence to require the defence being called upon or to submit that his Honour should give him a direction in accordance with R v Prasad (1979) 23 SASR 161. It was submitted that either course would have involved some discussion of the evidence and what the Crown had or had not proved. A direct and immediate consequence of the failure to advise or give the accused the opportunity to exercise his rights was that the accused was “misled as to the status of the evidence”. It was submitted that he was further misled by some his Honour’s remarks, particularly in advising him to “keep his powder dry”. At some point before the Crown case ended his Honour asked the appellant whether it was his intention to give evidence or whether he had not made up his mind. The appellant replied that he had not made up his mind. His Honour continued (AB 1204) - I would have thought as a matter of common sense that these were matters, and I have no idea if there are any other charges pending or not but it is a matter of common sense, one would normally keep their powder dry to deal with differing matters if they do arise.

It was submitted that the appellant wrongly interpreted those remarks as advising that there was no need to give evidence and, if that were not correct, he would have the opportunity to give evidence after he had made submissions.

In my opinion there is no substance in these submissions. In the document entitled “Advice to Self-represented Accused” the appellant was advised that he had the right at the end of the Crown case to submit “that the Crown case should be taken away from the jury on the grounds that there is insufficient evidence to justify the defence being called upon”. That, in my opinion was sufficient to inform the appellant of his rights. The appellant made no such application. (v) The accused was prevented from testing the evidence and demonstrating in court.

Early in the trial the appellant said that he wished to obtain access to the computer, which was then in the possession of the Crown, and to use it in cross-examination. It appears that his intention was to demonstrate that it had no password in order to support his case that the computer had been used by other people. The Crown prosecutor informed the Court that he intended to tender the computer through Sergeant McCulloch. The Crown Prosecutor refused to have it set up for use by the accused in cross-examination because, he said, material would thereby be deleted.

It was submitted on appeal that there was no good reason why it was not made available and that there was an assertion, but no evidence, that the use of it in cross-examination would destroy evidence. It was submitted that the computer should have been made available so that the accused could establish as a fact that it had no password and had been used by a large number of other people.

The first submission was contrary to the evidence. During the examination-in-chief of Detective Sergeant McCulloch there was this evidence (AB 1288) - Q …Just as a matter of interest if that hard drive was – or that computer was switched on now what would happen? A In terms of the integrity of the data that is on the drives there would be a number of files changes – number of dates and times would be updated, deleted data would be over-ridden and essentially the data that’s on those drives would no longer be in the state it was when I examined it. Q Right. It’s a bit like what – wiping a knife clean or something like that is it? A Well it – yeah the data is irrevocably changed so the evidence itself on the drives is irrevocably changed – there’s no way of restoring it back to its original state. The analogy would be to remove – essentially if you had a knife with blood for example and you removed the blood from the knife to examine the blood, the knife’s no longer in the state it was when it was examined, so.

Towards the end of the Sergeant’s cross-examination the appellant requested that the computer be set up for his use and the Crown prosecutor refused, saying this (AB 1298) - Crown Prosecutor Yes your Honour and it’s not going to happen, the reason is, that once that computer is set up, whatever’s on there at the moment will be deleted as the officer gave evidence. His Honour Yes he gave that evidence. Crown Prosecutor So it’s not going to be set up because the evidence which is contained on it will be destroyed.

Moreover, it was not necessary to demonstrate that the computer had no password. That was the evidence of Detective Sergeant McCulloch. It would not appear to follow from that fact that the computer “had been used by a large number of other people”.

It is not clear from the submissions on appeal precisely what, if anything, the appellant lost by being unable to use the computer in court.

This complaint has not been made good. (e) The evidence that was admitted and the evidence that was to be relied upon became hopelessly confused.

This complaint is about the treatment of the statements of CB and DJM. I have referred to them earlier in this judgment when dealing with the complaint about the use of tendency evidence. There was at one stage a debate about the use of those statements, whether his Honour should use them as tendency evidence. There was this exchange (AB 1183) - His Honour See one of the problems we have is this, this is in as evidence and I suppose if I were so inclined I could use it as evidence. I’ve indicated I don’t intend to do that. Crown Prosecutor Well your Honour it’s-- His Honour Unless he can establish a defence through it. Crown Prosecutor Yes it’s propensity evidence as it use to be called of a fairly damning type and I’m very conscious of the tact that I don’t rely upon it. His Honour But I’ve indicated that too. Crown Prosecutor Yes your Honour. His Honour But if he wishes to rely upon it as a defence and he wishes to take this line I don’t think I should stop him. Crown Prosecutor No your Honour. Just for certainty your Honour the Crown doesn’t rely upon all of paragraph (9) but rather those, a particular part pf paragraph (9) that was discussed I think on last Monday week. His Honour Yes I am aware of that. Crown Prosecutor Yes.

I have already drawn attention to the remarks his Honour made in giving judgment. What is plain is that his Honour stuck to his intended approach. The evidence of the other youths was not used to prove the tendency of the appellant. As it turned out, the evidence of those witnesses did not help the appellant either, but it is sufficient for present purposes to say that it did not harm him. There was no confusion. (f) The accused’s character was improperly put before the Court.

There was evidence that the accused had assaulted one of the police officers during the course of the search at his home. It was submitted on appeal that that was irrelevant to the issues for trial but raised bad character and forced the appellant to cross-examine on it. It was submitted that the accused’s bad character was raised a second time when Detective Hatchwell, in an unresponsive answer to cross-examination by the accused, said - All I know is that you are, as far as I’m aware, classified as a repetitious letter writer, vexatious complainant and there’s no substance to any of your complaints.

The Crown prosecutor, re-examining, went back to that subject.

The assault by the appellant on Constable Miller was not irrelevant to the issues on appeal. Part of the appellant’s defence was that the prosecution against him was malicious. He put before the court evidence that at an earlier time he had brought proceedings in the District Court against Detective Hatchwell and a large number of other police. The assertion against Detective Hatchwell was that he had maliciously prosecuted the appellant’s son in an attempt to force the appellant to withdraw yet other proceedings. Ultimately, the Court was told, the District Court proceedings were dismissed and had been superseded by proceedings in the Supreme Court.

Whatever the status of any of those proceedings, the assault on Constable Miller, during the search at which Detective Hatchwell was present, was said to be relevant to the question of bias of the prosecuting police officer. The search had been videotaped and the tape was tendered. There was a long discussion about the tape and about the assault which, if the tape were played, would be demonstrated to have taken place. The appellant did not object to the tender of the tape.

The appellant cross-examined Detective Hatchwell. He established that Detective Hatchwell was in charge of the investigation and knew that the appellant had made “quite a few complaints to the commander and to the Police Integrity Commission” about various police officers in the Manning Great Lakes Area Command. It was put to Detective Hatchwell that in those circumstances, as officer in charge, he was responsible to see that none of the officers against whom complaints had been made by the appellant were on the investigating team.

I infer that, understandably, Detective Hatchwell perceived that he was about to be asked whether, knowing of the appellant’s complaints against particular police officers, he had knowingly allowed those police officers to investigate the complaints against the appellant. He anticipated the question and gave this answer (AB 990) - I’m not aware what the, the substance of your complaints Mr Clark. All I know is that you are, as far as I’m aware, classified as a repetitious letter writer, vexatious complainant and there’s no substance to any of your complaints.

I do not think that either of these complaints has been made good. It seems to me that evidence of the assault on Constable Miller was put before the Court with the consent of the appellant, and that he had his own reasons for not objecting. Strictly, Detective Hatchwell’s answer that I have extracted was not responsive, but if he had waited for the anticipated question, which would surely have been asked, it would have been responsive.

This complaint has not been made good. GROUND 1(B) GENERALLY

It was submitted on appeal that in many and varied ways the events at the trial resulted in a miscarriage of justice. The transcript shows that there were lengthy debates between the trial judge and the appellant. They show that the appellant understood what was being put to him. Although he did not always appreciate the legal position on any question, he appeared well able to understand the instructions given by the trial judge. Moreover, he raised his own questions and made his own suggestions about how things should be done. During the discussions it emerged that the appellant had had three solicitors to act for him in the matter and had parted company with them all. By all appearances he was a strong-minded man, intelligent and persistent. His intelligence and persistence enabled him to demonstrate, by evidence adduced through questions he had drafted, that the complainant’s evidence left a period of two hours unaccounted for, that the complainant had not seen the appellant actually enter the shop and that the appellant did not threaten the complainant, contrary to what he had said in his evidence-in-chief. The transcript also shows that the appellant did not always heed the advice he was given but that, for his own purposes, he pursued courses of action which might not have been in his own best interests. Nevertheless, I think that he received a fair trial in the difficult circumstances that obtained. GROUND 2 The trial judge misdirected himself ON THE FIRST COUNT

It was submitted that his Honour failed to direct himself on the law of attempt or apply the law of attempt to the evidence in the case.

His Honour carefully directed himself on a large number of matters, but it is correct to say that his Honour did not do so in the manner in which would one ordinarily direct a jury about what is required for a finding of attempt. It was necessary that his Honour be satisfied beyond reasonable doubt that the appellant intended to commit the offence of recruiting the complainant for his pornographic purposes and, with that state of mind, did an act which was more than merely a preparatory act and could not reasonably be regarded as having any purpose other than the commission of the crime: R v Mai (1992) 26 NSWLR 371)..

Although error has been identified, it seems to me that if his Honour had so directed himself there could have been no different result. The evidence of the complainant, about which his Honour was satisfied beyond reasonable doubt, was that the appellant told him that he wanted to talk to him about a job, showed him photographs of naked boys, said that he could earn particular sums of money, that he would have to do something about his hair and said something about how the photographs were sent to America and did not come back. His Honour was entitled to accept that evidence beyond reasonable doubt and to act on it. In the circumstances it is impossible to understand what the appellant was doing unless he were trying to recruit the complainant into the pornographic business he had in mind. There was therefore no miscarriage of justice.

This ground of appeal has not been made good. GROUND 3 THERE WAS NO OR INSUFFICIENT EVIDENCE TO CONVICT ON THE FIRST AND SECOND COUNTS.

It was submitted that there was no definition of what constituted pornographic purposes, so that expression “must be regarded as purposes which involve sexual activity or a sexual context involving persons under or apparently under the age of 16 years”. It was pointed out that his Honour had directed himself that “the child is used by a person for pornographic purposes if the child is engaged in sexual activity or if the child is placed in a sexual context”, but failed to refer to the “balance”, which required that the sexual activity or being placed in a sexual context was “for the purposes of the production of pornographic material by that person”.

It was pointed out that his Honour pronounced his satisfaction that the pornographic purposes for which the appellant attempted to procure the complainant was “the taking of the photos while he was naked and, indeed, the probable taking of photos similar to the other photos I have seen of boys with erect penises and committing sexual acts”.

It was submitted that at no stage did the complainant give evidence that the appellant was offering him employment which required that he pose naked for photographs depicting him engaged in sexual activity or in a sexual context. Nor did he give evidence that the naked boys he claimed to have seen in photographs on the appellant’s computer had erect penises, were engaging in sexual acts or in a sexual context. It was submitted that his Honour found that the complainant had been shown pornographic images and then engaged in the circular reasoning “that if there were no pornographic images of the boys on the computer at the accused’s home, how did he see these pornographic images, or did he make up that story?”

It was submitted that the evidence of the complainant did not prove the case and that his Honour must have used tendency reasoning, relying on the statements of other youths.

It is not correct to say that there was no definition of pornographic purposes. As it stood in December 2004, s91G(2) provided as follows - (2)For the purposes of this section, a child is used by a person for pornographic purposes if: (a) the child is engaged in activity of a sexual nature (for example, actual or simulated sexual intercourse or a striptease) for the purpose of the production of pornography by that person, or (b) the child is in the presence of another person engaged in such an activity for that purpose.

His Honour’s reference to “purposes which involve sexual activity or a sexual context…” came not from the section as it stood at the time of the alleged offences but from the January 2005 amendments. The question his Honour ought to have asked himself was whether the purposes the appellant had in mind were the engagement of the complainant in activity of a sexual nature (for example, actual or simulated sexual intercourse or a striptease) for the purpose of the production of pornography by that person.

What his Honour did find was that the appellant tried to recruit the complainant for the taking of photographs while he was naked and probably similar to those his Honour had seen of boys with erect penises and committing sexual acts. The evidence of the complainant was that the appellant had shown him pictures of naked boys 14 or 15 years old, some alone and some in groups. The appellant asked him whether he were circumcised and asked him to show him his penis. The trial judge believed the complainant.

In my opinion his Honour was entitled on that evidence to find that the appellant had tried to recruit the complainant to take part in the production of photographs like those shown to the complainant, which included photographs of naked boys alone and in groups. There was no evidence that the boys in the photographs shown to the complainant had erect penises or were committing sexual acts. No submission was made on appeal about the purpose with which the appellant might wish to produce such photographs, other than for pornographic puposes, and none suggests itself.

Notwithstanding that his Honour used an inapplicable definition of the term “pornographic purposes”, a finding that the intention was to include the complainant naked in photographs like those shown to him would prove that the appellant’s intention in trying to recruit him was for pornographic purposes as defined in December 2004.

This ground of appeal has not been made good. GROUND 4 THE VERDICT ON THE FIRST AND SECOND COUNTS WAS UNSAFE OR UNREASONABLE

The question raised by this ground is whether the court thinks on the whole of the evidence that it was open to his Honour as judge of the facts to be satisfied beyond reasonable doubt that the appellant was guilty: M v The Queen (1994) 181 CLR 487; Jones v The Queen (1997) 191 CLR 439; MFA v The Queen [2002] HCA 53. This Court must assess the nature and quality of the evidence, its reliability and credibility. The Court must pay full regard to the fact that his Honour was the person entrusted with the primary responsibility of determining guilt and that his Honour had the benefit of seeing and hearing the witnesses, a benefit that this Court lacks: MFA v The Queen .

Under this ground Mr Ramage attacked the reliability of the evidence of the complainant by reference to what were submitted to be its inconsistencies and its generally poor quality, as well by reference to the evidence of other witnesses, which, it was submitted, ought to have been preferred to or at least to have thrown a serious doubt upon the reliability of the evidence of the complainant. Complaint was also made about what was said to be the failure of the trial judge to understand the true import of a number of pieces of evidence. (a) The evidence of the complainant (i) A discrepancy of two hours.

Under cross-examination, the complainant agreed that the appellant had picked him up at about 10am and had returned to him to a place near his home after 1pm. It was put to him that the journey from the pick up point to the shop took about five minutes that the visit to the shop took about two minutes, that the journey from there to the appellant’s house took about four minutes, that showing parts of two DVD’s took about ten minutes, that looking after the images of naked boys took no more than ten minutes, that the appellant took about five minutes to look into the complainant’s eyes and that the journey to the drop off point near the complainant’s home took about ten minutes. The questions were put, of course, upon an assumption that the complainant was telling the truth, something with which the appellant did not agree. The complainant agreed with some but not all of the estimates but seemed content to accept that when a further period of 15 minutes or so was added to the estimates, the things he described as having happened did so in a period of about an hour. On the face of it that was inconsistent with his evidence that all the events he had described had taken place between about 10am and a time shortly after 1pm.

It was submitted that his Honour’s conclusion that the complainant was a very good witness was one that could not be properly and rationally made. The complainant, it was submitted, was “patently unreliable” and the judge should have so directed himself.

In delivering his verdict his Honour said this (AB 36) - I suppose his strongest argument about it is the missing two hours. I do not know how one explains that. There was a series of timing put to (the complainant) . He seemed to agree with them and it would seem that there was a period of two hours which could not be accounted for, or the timing could be out or the hours could be out. There could be all sorts of reasons why that differed. I do not regard that as of such significance that it would cause me to reject his evidence.

It was submitted on appeal that the discrepancy “could not be disposed of by such specious reasoning”. It was submitted that the missing hours were accounted for in the evidence of DB, the brother of SB. He said that there was an occasion a couple of years earlier (than the date on which he gave his evidence) when he and the appellant collected SB and took him to the appellant’s house. They went via the house of a daughter of the appellant and the complainant joined them and went with them. SB and the complainant played on a play station while DB and the appellant changed the brake pads and the oil on a car. That procedure took between an hour and three quarters and two hours. When they had finished, DB and the appellant re-entered the house. DB saw SB and the complainant kissing. The complainant had an erection.

I should observe that this evidence was inadmissible by s293 Criminal Procedure Act , being effectively that which the appellant had been prevented from adducing by cross-examination of the complainant. I have been unable to ascertain how and why the position changed, but the Crown did not object to the evidence.

His Honour was not impressed with DB, observing that he did not like the complainant and was indebted (meaning obligated) to the appellant for things he had done for him. DB’s evidence in part was contradicted by that of the complainant and SB. His evidence that the complainant and SB looked alike was “totally wrong. They are nothing alike” (AB 39).

In being able to see and hear this succession of youthful witnesses as they gave evidence, his Honour had an enormous advantage over this Court. Some of the witnesses apparently perceived themselves as allied to one side or the other in the contest. Observation of demeanour must have been very important. Allowing this, I do not accept that his Honour was obliged by the evidence of DB to doubt the reliability of the complainant’s evidence. The complainant was certainly inaccurate as to times, but his Honour was not obliged on that account to regard him as inaccurate or unreliable in other respects. Ultimately, there seems to have been no reason why a mistake about elapsed time should reflect generally on any assessment of the complainant’s reliability. (ii) The telephone in the car.

The complainant told Constable Grimmett that the appellant had made a telephone call in the car before going into the shop. He told Constable Hatchwell that the appellant had received a call. Relying on the evidence of Constable Hatchwell, police had not sought evidence about these matters from the carrier, assuming that the record would be impossible to identify unless the identity of the caller were known. On appeal, attention was drawn to the evidence of Constable Hatchwell, who said (AB 1031) – When it came to the issue of a phone call, I pressed him in relation to whether a phone call was made by the accused or whether he received a phone call. After giving it some thought he said that he believed that the accused had received a phone call and that in fact had not made a phone call and his statement reflected that.

It was submitted that his Honour ought to have found that the complainant’s evidence was “coloured” by Constable Hatchwell, so affecting the complainant’s reliability.

I do not accept that submission. (iii) Whether the complainant could see the appellant enter the shop.

In his statement, the complainant said that the appellant parked the car in a certain place and went into the shop. In cross-examination, having been shown photographs, he conceded that he could not have seen the appellant actually enter the shop. Plainly, that was something he had inferred. It was put to him that what he had said in his statement was a lie. He said (AB 801) - It could be because I didn’t really see him go into the store.

This evidence was put forward as showing positive dishonesty on the part of the complainant.

I do accept that submission. The sense in which the complainant used the word “lie” in his answer could be understood as meaning no more than “inaccurate”. Such inaccuracy was inconsequential. (iv) Whether the appellant had threatened the complainant.

The complainant said in cross-examination that the appellant had never threatened him. Unwisely, perhaps, the appellant showed the complainant the statement of LF, who had recorded that the complainant had told her that the appellant had said to him “Don’t tell anyone otherwise something bad will happen”. Having had his memory refreshed in that way, the complainant said that the appellant had said those words and that he, the complainant, had told LF about them.

It was submitted on appeal that this evidence was inconsistent with evidence of the complainant’s behaviour about a week after the alleged events when he crossed the road to speak to the appellant.

In my opinion his Honour was not obliged to find those bodies of evidence inconsistent or to allow a comparison of them to cause him to doubt the reliability of the complainant. (v) Whether the complainant knew the appellant’s name.

The evidence of the complainant was that on 4 December 2004 he did not know the appellant’s name. His mother’s evidence was that the complainant had told her the appellant’s name. His Honour appears to have misunderstood the mother’s evidence as confirming that the complainant did not know the appellant’s name rather than, as was the fact, contradicting it.

This was on the face of it a minor discrepancy, unlikely to have caused his Honour to doubt the reliability of the complainant’s evidence. (vi) Whether the complainant told lies about SB.

It was submitted on appeal that the complainant told lies about SB, apparently attempting to distance himself from SB. When asked whether he was a mate of his he said, “no, never”. It was submitted that SB had said that the statement that the complainant was a mate of his was true. The complaint was that the trial judge seemed to have ignored the discrepancy.

The fact is that that the ultimate evidence of SB was that his statement, containing an assertion that the complainant was a mate of his, was false. The words were not those of SB but of the appellant, who had asked him to memorise them. He admitted lying and making a false statement that he asserted had been prepared by the appellant for his signature. His Honour accepted that explanation.

In the result, his Honour was not obliged to find that the complainant had told lies about SB or to conclude that there was any discrepancy. (vii), (viii) Whether the complainant was upset.

There was evidence that the complainant was upset after the events on which the first two charges were based, a matter to which his Honour referred in giving judgment.

It was submitted on appeal that that was contrary to the evidence of LF, who said that she had seen the complainant at the relevant time walking up the street calling out “hi Mum” and that a conclusion that he was upset was inconsistent with other evidence in the case.

Against this, it must be said that LF said in a statement that when he complained to her, the complainant was upset.

There is no substance in these submissions. (ix) An error about a touching.

It was submitted that his Honour misstated or misunderstood certain evidence of the complainant. Reviewing the complainant’s evidence, his Honour said that on the way home the man touched him and asked him if he could see it. In fact the complainant did not say that the appellant had touched him in any sexual context (apart, if that was a sexual context, from looking into his eyes and listening to his heartbeat).

I accept that his Honour erred, but the error seems to me to be inconsequential. It was not repeated when his Honour made his findings of fact, thus (AB 48) - I find that, whilst in the vehicle on the way home, the accused said to (MH) “Are you circumcised?” and then asked him to show him his penis, and I am satisfied of the other conversation which took place, that is, that he again encouraged him to show him his penis and asked him if he was shy. I accept that. I find those facts. I am satisfied that what he did amounts to an act of indecency and the he incited (MH), who was under sixteen, to commit that act of indecency towards him. (x) A reliance on facts not in issue.

It was complained that his Honour apparently relied on the finding of two DVD’s at the accused’s house and the complainant’s description of other items in the house. It was submitted that it was never an issue that the complainant had been there or that the DVD’s were there. It was the appellant’s case that he had been there looking at something with SB.

The submission did not explain how it was asserted that his Honour’s reliance on those undoubted facts led to error. I do not understand it to have done so. (b) The evidence of the Christie Lee Clark

Reference was made to the evidence of Christie Lee Clark, the appellant’s daughter, whom he called in his case. She said that on 4 December 2004, a day she could identify because it was on that day that her boyfriend proposed to her, she saw the appellant, DB, SB and a person whom she did not know who was about 17 years old. Between 9:30 and 11am they left in the appellant’s car. The implication was that the complainant was the 17 year old. That, it was submitted, supported the appellant’s case. (c) Tendency evidence

It was submitted on appeal that his Honour was “apparently impressed by the evidence of witnesses as to tendency / coincidence evidence called by the Crown”. Reference was made to some of the contents of statements made by SB, DM and to other evidence. I will not repeat the details.

It is not correct to refer to any tendency evidence as having been the Crown’s. It was tendered by the appellant. That is not to say that the Crown would not have tendered it or that the Crown did not rely on it. As I have pointed out earlier in this judgment, his Honour did not have regard to any such evidence when deciding whether the Crown had proved its case, but only if it assisted the defence. It is therefore incorrect to submit that his Honour was “apparently impressed” by the evidence referred to. (d) The evidence of DB

It was submitted that his Honour had ignored or rejected the evidence of DB. The transcript shows that his Honour did not ignore it but that he did reject it. I have set out some of the reasons above. His Honour regarded DB as biased towards the appellant and for that and other reasons unreliable. Given his Honour’s superior position, I am unable to conclude that his Honour was not entitled to come to that view.

None of the matters canvassed under this ground of appeal satisfies me that his Honour was not entitled to accept as truthful the evidence of the complainant about the events of 4 December 2004. That evidence was sufficient to prove the Crown case on the first two counts. GROUND 7 FRESH EVIDENCE

The appellant was permitted to read part of his affidavit sworn on 12 February 2008, incorporating further statements of two of the witnesses at trial which had recently been served on him by the Crown. The first was that of DJM, made on 12 September 2007. Two statements of DJM were relied on by the Crown as tendency evidence, but ultimately tendered by the appellant. His Honour did not use them as evidence of any tendency of the appellant. The latest statement of DJM is confined to describing the exact name and location of a motel where things happened involving himself and the appellant.

The second statement is of Sergeant Van Dyk of 16 August 2007 and says something about images on an audio-visual tape. The Court did not see the tape but understood that SB was shown in it. SB was one of the persons whose evidence was intended by the Crown to be used as tendency evidence but whose statement was tendered by the appellant. His Honour did not use it as tendency evidence.

Since his Honour did not rely on the evidence of DJM or SB to prove any tendency in the appellant, there recent statements are of no consequence. They do not appear to assist the appellant. They lack cogency.

A final piece of evidence is part of the affidavit of the appellant himself. He says that he is sure that he did not receive a call on his mobile telephone on the afternoon of 4 December 2004. That, it seems to be, is a matter about which he could have given evidence at the trial and lacks the quality of freshness necessary to make it admissible on appeal.

I would not receive the evidence.

There is no substance in this ground. GROUND 5 THE TRIAL JUDGE MISDIRECTED HIMSELF ON POSSESSION

According to the transcript, in giving judgment his Honour directed himself in these terms - “Possession” this dictionary would say that to “possess” something means “to have that thing” but I need to clarify that concept of possession as it is recognised by law in the present context. The essence of the concept of possession in law is that, at that relevant time, the accused potentially had control over the object in question. A person may have this control alone or jointly with some other person or persons. A person and those persons, if any, must have the right to exclude other persons from it. If these conditions are fulfilled then you may be said to have possession of that object, whether it is your sole possession or whether it is a joint possession with someone else. It is not necessary for you to have something in your hand, pocket, wallet or purse before the law says that you have it in your possession. Further, you do not need to own something in order to possess it. You can possess something temporarily for some limited purpose. You can possess something jointly with one or more other persons. Defining possession, I use the phrase “intentionally have control”. This is to make clear that if something has been, for example, slipped into your suitcase unknowingly, you are not regarded as having possession within the law, even though the case that you are carrying could be said to be under you control.

It was submitted that the test was not correct and that his Honour erred in the use of the word “potentially”. What were necessary were actual and physical possession and the mental element of knowledge and intention. Reference was made to He Kaw Teh v R (1985) 157 CLR 523.

When one reads the direction on possession suggested at [3-700] of the Criminal Trial Courts Bench Book, published by the Judicial Commission of New South Wales one sees that it was that passage that his Honour was reading. The transcript of his Honour’s judgment contains a number of errors, and I am satisfied that his Honour must have read not “potentially” but “intentionally” as is set out in para [3-700]. If one needed confirmation of the correctness of that conclusion one would need to look no further than the statement appearing later in the same passage from the judgment, viz - Defining possession, I use the phrase ‘intentionally have control’. This is to make clear…

The transcription errors here are not so serious. I think that what his Honour was doing was reading this passage directly from the bench book - In defining possession earlier, I used the phrase ‘intentionally have control’. This is to make clear…

The transcription error was unfortunate, but it seems to me that his Honour did not misstate the applicable principle of law.

It was further submitted that his Honour failed to satisfy himself that the appellant knew that the images on the hard drives seized by the police existed and that he could retrieve them. If he lacked the means to retrieve them he no longer had custody or control of them. Possession was not proved.

The computer equipment seized included two hard drives. The pornographic material the appellant was charged with having possessed comprised 22 files of images identified by Sergeant McCulloch on one of the hard drives. He transferred the data onto a compact disc, which was received into evidence as exhibit AA. In the temporary directory of the other hard drive he found other files which he transferred to a compact disc. They comprised 3,154 images. The compact disc was admitted into evidence as exhibit BB.

Sergeant McCulloch is a computer expert attached to SEEB. His expertise was not challenged. According to his statement, exhibit Y, and evidence he gave in chief, this was the provenance of the 22 images recorded on the compact disc exhibit AA. The record which produced the 22 images was held on a portion of the hard drive which had been designated “deleted”. Sergeant McCulloch explained the procedure for maintaining and deleting files on hard drives. If a record is made on a hard drive it remains and cannot be obliterated by the superimposition of another record unless marked “deleted”. Marking a file “deleted” does not remove it from the hard drive but changes its status so that it can be overwritten by the creation of another file. It can also be effectively removed by being “wiped”, in a special operation that replaces all the characters in the file with zeros. Sergeant McCulloch said that there was no sign that such a thing had been done.

The other consequence of designating a file “deleted” is that it cannot be retrieved and displayed on the computer screen, at least not without the use of a special program. He said that such programs are available and can be obtained from computer software dealers and even downloaded from the Internet. He used such a program himself to retrieve the relevant data. There was no evidence that any such program had been installed on the computer or the hard drives. There was no evidence that the accused had any expert knowledge of computers. There was no evidence that he knew of the existence of the special programs of which I have spoken.

The evidence about the images on the disc exhibit BB was more difficult to understand. It was given virtually no treatment viva voce , and his Honour was obliged really to depend on the description given by Sergeant McCulloch in his statement, exhibit Y. Relevantly, it contained these three paragraphs - I conducted a search for digital camera graphic files and located a number of images contained within the file; PC01HD01:C\Documents and Settings\Peter Clark\Local Settings\Temp\tempcd.ncd This file created by the Compact Disc writing software “NTI CD-Maker” in the temporary directory of the currently logged in user during the course of creating a compact disc session. An examination of metadata contained within this file revealed that this session was created on 07.02.2003 at 09:32. An examination of application installed on PC01 revealed a functional installation of NT1 CD-Maker capable of creating Compact Disc image files of this type. I created a Compact Disc from this image file (hereinafter referred to as PC01CDImage01) which I labeled “E05 / 036 – Created Disc” I examined the contents of PC01CDImage01 and found it contained 3,154 graphic image files in JPEG format which may depict child pornography.

The statements set out in those paragraphs are not at all easy for the uninitiated to understand. I note that there was no oral evidence about the nature of the “temporary directory”. There was no evidence showing how the officer had identified, retrieved and reproduced the data. There was no evidence whether the means he used was, as for “deleted” material, available from software suppliers or from the internet. There was no evidence that since the relevant use of the computer in 2003 any application had been made that suggested that the appellant knew that the computer created such a temporary directory or how long such a temporary directory was likely to last.

I think that Sergeant McCulloch’s evidence meant this. It is possible to use a computer to transfer data from a digital camera to a compact disc. There are installation programs that can be used to perform that function. If such a process is undertaken, one result is that the hard drive sets up for itself a temporary file containing a further record of the data transferred from the camera to the disc. The officer noted that on the hard drive there had been installed an application capable of performing that function. He searched for temporary files. He found some and transferred them to the compact disc. The record showed that the function of making a compact disc and laying down the temporary files on the hard drive had happened on 7 February 2003.

Sergeant McCulloch compared with one another the image files contained on the two discs tendered in evidence. There were four common images.

Sergeant McCulloch found other data on the hard drives as well. One of them contained an application called Internet Explorer. It maintained a number of files including a history of internet sites to which access had been obtained. It showed that a user logged on as “Peter Clark” had used Internet Explorer to search the internet for resources matching certain search terms. In an annexure to his report the officer listed a resume of such searches. They showed, among other things, that the computer had been used to search for information using terms “teen”, “boy” (on more than one occasion), “SexyBoys…”, “young teens” on three occasions and “16 year olds”. The computer had been used to visit the websites “teenaffection.com”, “incest place – pichunter.com” “, “little teen gallery.com” and “teenmpgmovies.com”.

The officer also gave evidence of identifying a record on one of the hard drives that on 28 December 2004, over a space of approximately one and half to two hours, some 7,400 files had been deleted. He retrieved some or all of those files and produced a list of 200 of their names and particulars. The list became exhibit Z. They all had names suggesting an interest in boys, particularly a sexual interest. I do not find it necessary to repeat the names.

Sergeant McCulloch’s explanation of the processes of deletion and the creation of compact discs from digital cameras by the use of the computer and of the resulting effects upon the relevant hard drive was not challenged.

The third count was brought under s91H, Crimes Act , which is as follows - 1) Definitions In this section: child pornography means material that depicts or describes, in a manner that would in all the circumstances cause offence to reasonable persons, a person under (or apparently under) the age of 16 years: (a) engaged in sexual activity, or (b) in a sexual context, or (c) as the victim of torture, cruelty or physical abuse (whether or not in a sexual context). disseminate child pornography, includes: (a) send, supply, exhibit, transmit or communicate it to another person, or (b) make it available for access by another person, or (c) enter into any agreement or arrangement to do so. (2) Production or dissemination of child pornography A person who produces or disseminates child pornography is guilty of an offence. Maximum penalty: imprisonment for 10 years. (3) Possession of child pornography A person who has child pornography in his or her possession is guilty of an offence. Maximum penalty: imprisonment for 5 years. (4) Defences It is a defence to any charge for an offence under subsection (2) or (3): (a) that the defendant did not know, and could not reasonably be expected to have known, that he or she produced, disseminated or possessed (as the case requires) child pornography, or (b) that the material concerned was classified (whether before or after the commission of the alleged offence) under the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth, other than as refused classification (RC), or (c) that, having regard to the circumstances in which the material concerned was produced, used or intended to be used, the defendant was acting for a genuine child protection, scientific, medical, legal, artistic or other public benefit purpose and the defendant’s conduct was reasonable for that purpose, or (d) that the defendant was a law enforcement officer acting in the course of his or her official duties, or (e) that the defendant was acting in the course of his or her official duties in connection with the classification of the material concerned under the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth. (5) Defence to possession of child pornography It is a defence to any charge for an offence under subsection (3) that the material concerned came into the defendant’s possession unsolicited and the defendant, as soon as he or she became aware of its pornographic nature, took reasonable steps to get rid of it.

Section 7 Crimes Act is as follows - 7 “Possession” when criminal Where by this or any other Act the unlawful receiving of any property, or its possession without lawful cause or excuse, is expressed to be an offence, every person shall be deemed to have such property in his or her possession within the meaning of such Act who: (a) has any such property in his or her custody, or (b) knowingly has any such property in the custody of another person, or (c) knowingly has any such property in a house, building, lodging, apartment, field, or other place, whether belonging to or occupied by himself or herself or not, and whether such property is there had or placed for his or her own use, or the use of another.

As Gibbs CJ, Mason, Brennan and Dawson JJ said in He Kaw Teh v The Queen , where a statute makes it an offence to have possession of goods, knowledge of the accused that those goods are in his custody, in the absence of a sufficient indication of a contrary intention, will be a necessary ingredient of the offence, because the word “possession” itself necessarily imports a mental element. The fact that the appellant was charged with having possessed data, rather than goods, makes no difference in principle. As I have observed, his Honour directed himself in accordance with the principles explained in He Kaw Teh v The Queen . The question for his Honour was whether the appellant intentionally possessed the data which were in due course transferred by Sergeant McCulloch to the two discs put into evidence.

In my opinion nothing in s91H or in s7 necessarily or by implication removes the requirement for the Crown to prove, when charging possession of some thing or some material, that the accused’s possession is intentional. No doubt some users of computers are highly expert in the art and realise that data which have been “deleted” may remain in whole or in part upon the hard drive and may by employing suitable means, be identified and retrieved. No doubt many other users of computers believe that the word “deleted” means what it says. Such persons, wishing to rid themselves forever of material on their computers, believe that by following the deletion procedure they have achieved exactly that end.

The Court was not referred to any Australian decision on the concept of possession in such circumstances, but there are two English cases. Mr Ramage QC included a reference in his written submissions to R v Porter [2006] EWCA Crim 560, a decision of the Criminal Division of the Court of Appeal.

Section 160 of the English Criminal Justice Act 1988 is as follows - 160 Summary offence of possession of indecent photograph of child (1) It is an offence for a person to have any indecent photograph of a child (meaning in this section a person under the age of 16) in his possession. (2) Where a person is charged with an offence under subsection (1) above, it shall be a defence for him to prove— (a) that he had a legitimate reason for having the photograph in his possession; or (b) that he had not himself seen the photograph and did not know, nor had any cause to suspect, it to be indecent; or (c) that the photograph was sent to him without any prior request made by him or on his behalf and that he did not keep it for an unreasonable time. (3) A person shall be liable on summary conviction of an offence under this section to a fine not exceeding level 5 on the standard scale. (4) Sections 1(3), 2(3), 3 and 7 of the [1978 c. 37.] Protection of Children Act 1978 shall have effect as if any reference in them to that Act included a reference to this section. (5) Possession before this section comes into force is not an offence.

In R v Porter the appellant had been convicted of possessing indecent photographs of children. One of the counts concerned a number of still images all of which had been “deleted”. According to the judgment the data had been placed first into the “recycle bin”, then the recycle bin had been emptied. The Court was satisfied that there was nothing further the user could have done to get rid of the data. The second count under consideration comprised a number of movie files, seven of which had been “deleted” by the same means. The Crown conceded that all the deletions had been done before the police took possession of the computer equipment. The Crown also conceded that the appellant had no software to retrieve or review deleted files.

The appellant had submitted at trial that he had no case to answer on the first count and concerning the relevant files on the second, because they were not in his possession at the time, since he had done all he could to divest himself of possession and did not know that they were where they were found. The trial judge rejected the submission, holding that the appellant possessed the files whether they were in an “active” or a “deleted” category.

It was submitted on appeal that images had to be readily accessible to a defendant for viewing at the time they were said to be possessed, or capable of being made accessible without the need to obtain specialist software. It was also submitted that a person who had, for example, placed them in the recycle bin and emptied it, was no longer in possession.

The Court of Appeal held that if a person could not retrieve or gain access to an image he no longer had custody or control of it. It was not appropriate to say that a person who could not retrieve an image was in possession of it. It was a matter for the jury whether the images were beyond the person’s control.

Atkins v Director of Public Prosecutions [2000] Cr App R 248 concerned a conviction which had been entered up in the Magistrate’s Court of the possession of indecent photographs of children. One of the charges, like those in R v Porter , was laid under s160 Criminal Justice Act 1988.

A number of photographs were shown to have been downloaded from the internet using a browser program. Those photographs were shown to have been viewed by whoever used the computer but then to have been deliberately “not saved”, which for present purposes is equivalent to “deleted”. There was expert evidence before the magistrate which showed that a user could deliberately choose to download or save documents but that it was not commonly known by users that the browser automatically created an automatic temporary information store, a “cache” of recently viewed documents. The cache was automatically emptied of documents as it became full, but even then an expert could retrieve the information. .

The magistrate had ruled that the section created an offence of strict liability, the effect of which was mitigated only by the three statutory defences set out in subs (2). A case was stated which asked the High Court to say whether that was a correct view.

Delivering the judgment of the court, Simon Brown LJ, having reviewed the facts and the expert evidence, observed that the central question was whether or not knowledge of the existence and effect of the cache was an essential ingredient of the offence of possession under s160. Having dealt with two aspects of the Magistrate’s ruling not relevant here, his Lordship observed that the relevance of knowledge of possession fell to be decided in accordance with general principle. Reference was made to a number of English cases which I need not cite here. His Lordship continued at 262 - Once again, therefore, I prefer Miss Malcolm’s argument that knowledge is an essential element in the offence of possession under section 160 so that an accused cannot be convicted where, as here, he cannot be shown to be aware of the existence of a cache of photographs in the first place. Returning to section 160(2)(b), it seems to me indeed that the very fact that Parliament created a defence for those possessing photographs reasonably not known to be indecent, strongly suggests that there was no intention to criminalise unknowing possession of photographs in the first place.

I find these cases persuasive. The structure of s160 Criminal Justice Act is similar to that of s91H. Both acts deal with similar subject matter, likely to be possessed in the form of electronic data recorded on a computer hard drive. Both make possession an offence. Both are enacted in jurisdictions where possession, to constitute an offence, has to be intentional unless there is clear indication to the contrary. The defences are substantially similar: cf s160(2)(b) and s91H(4)(a); s160(2)(c) and s91H(5). I think that they should be followed in construing the requirements of s91H.

In giving judgment his Honour dealt with the evidence of Sergeant McCulloch saying this (AB 49) - He found a number of photographs, well over 3,000, which he produced to the court and also a CD Disk with 22 photographs.

I do not think that the way his Honour put it was intended to convey an understanding that the officer had found a disc. His Honour was well aware that the officer had produced a disc from material on the hard drive. His Honour went on to say something about the images produced and to conclude that they were pornographic.

His Honour summarised the evidence about the effects of deletion, remarking that it was not a process of removal, quoting the evidence of the officer that “ the data is not removed from the drive. It is essentially sitting there, available for re-use, all the blocks of disc area that it sits on is available for re-use if required ”.

His Honour reviewed the evidence of what was needed to recover the data, particularly evidence that it was a process which did not require a high level of technical skill, and that most of the “tools” were automated, designed for commercial or consumer applications in such a way that a disc would scan the system and present a listing of all deleted files and enabling the user to choose any file he wished to recover.

Having summarised the evidence of Sergeant McCulloch his Honour said this (AB 51) - I think that pretty well summed-up his evidence with this exception. He said that the accused’s computer did not require a password to operate it. In other words, his evidence was quite clear, that this material which was clearly pornographic, had been and was available on the computer. There can be no doubt, as of 27 January, that it was in the possession of the accused, in that it was found in his premises during the search.

His Honour then dealt with the defence under subs (4)(a). Having rejected that defence, his Honour continued (AB 53) - I am also satisfied it was in his possession on 27 January when the police seized it. The elements in the offence, the date, the place and everything else are proven beyond reasonable doubt. There was clearly child pornography on that computer. It was there. There were persons under sixteen engaging in sexual activity and placed in a sexual context. He had possession of it and none of the defence could apply to him. I do not believe there is anything further I can say.

In coming to these conclusions his Honour made no distinction between the data which produced the 22 images on exhibit AA and the data which produced the 3,154 images on exhibit BB.

In my opinion his Honour was obliged to ask himself whether the accused knew that the data reproduced on exhibit AA existed on the hard drive at the date of search and, if so, whether he knew how to retrieve them. Before he could find the appellant guilty of the possession of the 3,154 images reproduced on exhibit BB, his Honour was obliged to ask himself whether the appellant knew that the data existed on the hard drive at the relevant time and, if so, whether he knew how to retrieve them.

Unfortunately, although his Honour initially correctly directed himself that the Crown had to prove intentional possession, which in the present case involved proof that the appellant knew that the data were present and retrievable, those questions were never ultimately framed or answered. One reason for this may have been that during the debate that followed the close of the evidence the only reference made to possession concerned the establishment by the appellant of the statutory defences. So his Honour received no assistance on what the Crown had to prove to establish possession.

I would uphold this ground of appeal. GROUND 6 THERE WAS NO OR INSUFFICIENT EVIDENCE TO CONVICT ON COUNT 3.

Several submissions were made under this ground of appeal, but it is sufficient to deal only with the principal contention, which was that there was no evidence that the appellant was in possession of the relevant data on the day of the search.

As to the twenty-two images in exhibit AA, there was no evidence that the appellant was particularly skilled in the use of computers. The absence of any evidence that the appellant’s computer had installed on it a program for the identification and retrieval of “deleted” files is telling. There was no evidence that the appellant knew that such programs were available. There was no evidence that he knew that “deleted” data remained on the hard drive until overwritten.

In my opinion there was no evidence that the appellant intentionally possessed the data that produced the 22 images.

As to the 3,154 images, there was no evidence that the appellant knew that the data had been in a temporary file since 2003. There was no evidence by what means such temporary files could be identified or retrieved or whether such means were available to persons such as the appellant. There was no evidence of the installation on the appellant’s computer of any program that could fulfil such a function.

In my opinion there was no evidence that the appellant intentionally possessed any of those images.

In the result, there was no evidence to prove intentional possession of any of the data or images relied on by the Crown in Count 3. In my opinion this ground of appeal has been made good.

It would not be appropriate to dispose of the appeal against conviction without remarking what a difficult trial this was for the trial judge. Not only were there the problems that ordinarily attend any complex case where an accused person is unrepresented. The problem posed by s293, and particularly that posed by s294A, were superadded. His Honour’s continuous concern throughout for the rights of the accused and the timely advice offered as the trial proceeded were appropriate. THE SENTENCE APPEAL

His Honour imposed the following sentences - On count 1, a non-parole period of two years, commencing on 12 December 2006 and expiring on 11 December 2008 and a balance of term of two years expiring on 11 December 2010. On count 2, a fixed term of imprisonment of six months commencing on 12 December 2006 and expiring on 11 June 2007. On count 3, a non-parole period of twelve months commencing 12 December 2006 and expiring on 11 December 2007 and a balance of sentence of six months expiring on 11 June 2008.

His Honour found special circumstances warranting an effective period of availability of parole which exceeded one-third of the non-parole period. They were that the appellant would serve his sentence in protective custody, that these would be his first terms of imprisonment and that he would need special help to rehabilitate himself upon his release to parole.

On appeal, the Crown conceded that his Honour had erred in assuming that the maximum sentence for the offence the subject of the first count was ten years’ imprisonment. In fact it was five years’. The Crown submitted that the Court should quash the sentence on the first count and impose an appropriate sentence in lieu. No other submissions were made on behalf of the Crown or the appellant.

I would accordingly substitute for the sentence imposed on the first count a non-parole period of one year and six months and a balance of term of one year and six months. THE DISPOSAL OF THE APPEAL

I propose the following orders - 1. Allow the appeal against conviction in part. 2. Quash the conviction on the third count and direct the entry of a verdict of acquittal on that count. 3. Grant leave to appeal against the sentence and allow the appeal in part. 4. Quash the sentence on the first count and sentence the appellant in lieu to imprisonment for a non-parole period of one year and six months, commencing on 12 December 2006 and expiring on 11 June 2008 and to a balance of term of one year and six months expiring on 11 December 2009. 5. Direct that the appellant be released to parole on 11 June 2008.

My reasons for fixing a parole period exceeding one-third of the non-parole period are as stated by his Honour.

BUDDIN J : I agree with Barr J.