The submissions on behalf of the applicant
96Senior Counsel for the applicant submitted that the matters concerning AY to which I have referred raised grave concerns about AY's credibility, independence and reliability which were not known and available at the time of the applicant's first or second trials. He submitted, in particular, that the circumstances surrounding the evidence given by AY at the applicant's second and third re-trials in particular, and his various contradictory statements to the police (the last of which constituted his evidence before Judge Haesler in the fourth re-trial) supported the conclusion that AY was a witness completely lacking in credibility. Senior counsel submitted that this was significant in light of the fact that the applicant:
(i)had been convicted following the first trial in which AY had been called to give evidence by the Crown; and
(ii)had also been convicted following the second trial in circumstances where the Crown case was essentially wholly reliant upon the evidence of AY.
97Senior counsel advanced a similar submission in respect of OG. In particular, he submitted that the notes of the conference between the Crown Prosecutor and OG on 9 April 2010 at least suggested that OG had discussed his proposed evidence with EU. He also submitted that exchanges between OG and the Crown Prosecutor which were disclosed in those notes impacted upon a proper assessment of the credibility and reliability of OG as a witness.
98Senior Counsel further submitted that there was a clear opportunity for, and risk of, collusion as between OG and EU as a consequence of the evidence given by Detective Slade, and about which Judge Haesler had commented extensively.
99It was submitted that had these matters been known to the applicant at the time of the first and second trials, it would necessarily have impacted upon the strength of the Crown case in each instance.
100Senior counsel acknowledged that the evidence given by each of OG, EU and AY in the applicant's first trial related to statements relied upon by the Crown as admissions, as opposed to being evidence of direct corroboration of LO's complaints. However, he submitted that the evidence of each of the three witnesses was nevertheless important because it was the principal, if not the only, evidence capable of corroborating that of LO.
101Senior Counsel further submitted that trial counsel, being aware that each person had made his own complaint against the applicant, was necessarily restricted in his manner of cross-examination and was also prevented, in the circumstances, from raising the question of the applicant's good character. He pointed out that in light of the acquittal of the applicant in respect of the complaints made by OG and EU, counsel would not be similarly restricted in cross examining OG, AY and EU at any re-trial.
Submissions on behalf of the Attorney-General
102In respect of AY, counsel for the Attorney-General accepted that the Crown case against the applicant in the second trial depended entirely upon the evidence of AY, and that it had not been open to the jury to convict the applicant unless satisfied beyond reasonable doubt that the evidence of AY was both honest and accurate. However, counsel submitted that the proposition that subsequent events had so affected the credibility of AY so as to raise a general doubt about his reliability should be rejected.
103In this regard, counsel pointed out that the submission advanced on the applicant's behalf was primarily based upon matters concerning AY's recollection of a particular train trip which had occurred in 1998. Counsel pointed out that AY had said in one of his statements that he had gone on many train trips with the applicant, in the course of which the applicant had done many things to him. She submitted that the fact that AY could, in those circumstances, experience confusion about what happened on the particular train trip in question did not raise any doubt or question about his credibility at all.
104Counsel also drew attention to the time periods which had elapsed between the time of the train trip (in 1998) and the time at which AY had given evidence in the various trials. She submitted that in circumstances where there had been many train trips, and in circumstances where AY was giving evidence about them more than 10 years after the event, an inconsistency in this one aspect of his evidence should be viewed as unremarkable, and one which fell well short of being sufficient to raise any doubt about the credibility of the evidence he had given.
105In all of these circumstances, counsel submitted that no question properly arose about the applicant's convictions following the second trial.
106In terms of the submissions made on behalf of the applicant in relation to the evidence given by AY, EU and OG in the first trial, counsel for the Attorney-General firstly took issue with the proposition that their evidence provided the only evidence of corroboration of the complaints of LO. Counsel pointed out that the Crown had also relied upon the fact that pornographic videos generally meeting the description given by LO were found on the applicant's computer and provided corroboration of his complaints.
107Counsel pointed out that the applicant's trial was conducted on the basis of a general acceptance of the evidence of EU as to the relevant conversation and submitted that in these circumstances, no relevant sense of unease or disquiet as to the applicant's conviction following the first trial arose. Counsel also pointed out that the various concerns expressed by Judge Haesler about EU concentrated upon suggested discrepancies in evidence given by EU at earlier trials, and the suggested possibility of collusion as between EU and OG. Counsel submitted that neither matter had any bearing at all on evidence given by EU in the first trial, in circumstances where that evidence was not in dispute.
108In terms of AY's evidence in the first trial, counsel pointed out that the applicant's evidence in the first trial conceded some conversation having taken place with AY, although he could not recollect a conversation in the car on the way to the railway station. Counsel also pointed out that the applicant did not deny that he had discussed suicide in the period after LO had made his allegations, an issue to which AY (and OG) referred in their evidence. Counsel noted that when summing up to the jury, the trial judge observed that the reference to suicide was not disputed, and that this was an observation which was clearly correct.
109Counsel also relied upon the fact that the applicant had, in the conduct of his defence in the first trial, specifically relied upon the truth of AY's evidence that he (i.e. the applicant) had, at one point, expressly denied that what LO had alleged was true.
110Counsel also relied upon the fact that in her summing up in the first trial, the trial judge had directed the jury that whether they could use the evidence of the statements about which EU, AY and OG had given evidence depended upon whether they accepted the Crown's construction of what had been said. Counsel submitted that in finding the applicant guilty, it was evident that the jury either accepted the construction advanced by the Crown, or did not accept that construction but nevertheless found the remaining evidence to be so compelling that there was no reasonable doubt of the applicant's guilt. Counsel submitted that irrespective of the basis upon which the jury returned its verdict, the matters upon which the applicant now sought to rely in relation to the credibility of AY, EU and OG did not, as a matter of practical reality, raise any doubt or question about the applicant's conviction in relation to the offences following the first trial.
CONSIDERATION AND CONCLUSION
111I have already set out the principles which are to be applied in determining an application of this nature.
112Notwithstanding the submissions of senior counsel for the applicant, the material which has been put before me in support of the application does not cause me unease, or a sense of disquiet, in allowing the applicant's convictions to stand. I have reached this view for a number of reasons.
113Dealing firstly with the matters concerning AY, to the extent that reliance was placed upon matters relating to his evidence of the train trip in 1998, I am not satisfied that such evidence erodes his credibility to the extent which has been suggested. Clearly, he made inconsistent statements in relation to that issue. Equally, he was seeking to recall matters years after the event, and in circumstances where he had, according to his account, been on many train trips with the applicant and had become confused.
114I accept that the Crown case in the second trial, which concerned the allegations of AY, necessarily relied upon the jury's acceptance of AY's evidence. However, inconsistencies arising from a level of confusion as to one single event, particularly where that event occurred some 13 years before, do not, in my view, lead to the conclusion that AY is a person so lacking in credibility that there is a resultant sense of unease or disquiet arising from the applicant's convictions following the second trial.
115Similarly, I do not accept the submission that the matters which have emerged in respect of other evidence given by AY impacts in any relevant sense upon the applicant's convictions following the first trial. I have previously noted that counsel for the applicant at trial cross-examined AY to the effect that in the relevant conversation, the applicant had denied the truth of LO's allegations. AY agreed that the applicant had made such a statement and the applicant relied upon that evidence before the jury. There is, in my view, something of an inconsistency between an assertion that AY is unreliable on the one hand, and specific reliance being placed upon his evidence on the other.
116The notes of the conference between OG and the Crown Prosecutor on 9 April raise the possibility of OG and EU having discussed their evidence. Their presence together at the police station at the commencement of the investigation also raises that possibility, although without more it does so in what could only be described vague terms. What is clear is that OG and EU were separated when making their original statements.
117I have had regard to the statements made by Judge Haesler SC in the course of his judgment following the fourth re-trial. Clearly, his Honour thought that there was some possibility of collusion between OG and EU, although he does not appear to have reached an affirmative finding in that regard. In any event, and even if that possibility exists, whether it has any relevant impact upon the applicant's convictions following the first trial must be assessed according to the evidence that each of OG and EU gave in that trial.
118As I have previously noted, the evidence of OG and EU went to statements said to have been made by the applicant which were relied upon by the Crown as admissions. In the case of EU's evidence it was not the applicant's case that the words attributed to him by EU had not been said, and the trial judge directed the jury accordingly. Rather, it was the applicant's case that a different interpretation should be placed upon the words he had used.
119In these circumstances, even if the possibility of collusion between OG and EU exists it does not, in my view, impact upon the applicant's convictions in any relevant sense. No attack was made on the credit of EU at the applicant's first trial.
120The position is similar concerning the evidence given by OG at the first trial. Although the conversation about which he gave evidence was disputed to some degree, there was no issue that in a conversation with OG the applicant had used the word "genetics" and that he had spoken of committing suicide. Significantly, as to his use of the first term, the applicant (in answer to the question from her Honour) made it clear that as far as he was concerned, the question was one of interpretation, not the fact that he had used that term.
ORDER
121For these reasons, and having considered the material relied upon, no sense of unease or disquiet arises in respect of the applicant's convictions for the offences arising out of the first and second trials.
122The application is therefore dismissed.