And:
"Q. Now if I can go to the third time, as I understand it that's the occasion when you say there was an exchange of SMS messages between you and the accused concerning the men's magazine?
A. Yes.
Q. Where did you get the magazine from?
A. Just the newsagency.
Q. That was a magazine called Men's Health was it?
A. Yes.
Q. You never sent any message on your mobile phone to the accused about that magazine did you?
A. I did.
Q. He never sent you a message saying 'You'll have to show it to me'?
A. He did.
Q. You never sent him a message on your mobile phone saying 'I can show it to you now', did you?
A. I did.
Q. What phone did you use?
A. The 3210.
Q. To send the messages? I beg your pardon?
A. A 3210.
Q. Did you not use the bright orange Alcatel?
A. No.
Q. At the time of the incident in Thomas Park you had the bright orange Alcatel didn't you?
A. No.
Q. What phone do you say you had then?
A. The 3210.
Q. You're not telling the jury the truth I suggest about, what do you say about that suggestion of mine?
A. I am." (T72)
18 M had possession of an orange Alcatel mobile phone prior to having the Nokia phone. In relation to text message by use of the former he had said in chief:
"Q. The text messages that you were receiving and sending, you said you had the 32/10 Nokia mobile phone?
A. Yes.
Q. Was that the first phone, mobile phone you ever had?
A. No it wasn't.
Q. How many phones before that did you have?
A. I just had the one.
Q. And what was that, what type of phone was it?
A. It was an Alcatel.
Q. Did you send or receive any text messages on that phone to anyone?
A. Not many, because I didn't really know how to work it, it was sort of like a brick, it was - I really only knew how to work out a call and that was about it." (T17)
19 M was cross examined about a statement which he had made to police. The statement itself was not put into evidence. It was put to him and he accepted that therein there was reference to the Thomas Park incident and the following was put and answered:
"Q. I am not interested in any other parts. Did you say in that document these words. Please follow me through, I will read the yellow highlighted parts. 'There was an incident in Thomas Park'. Correct?
A. Yes.
Q. 'I can't remember the exact date but it was about 10 o'clock on a weeknight and my parents had gone bed (sic) early and I had just got my first mobile, it was a bright orange Alcatel and I messaged (the appellant) he was older than me'?
A. Yes." (T82)
20 However, further cross examined, M said:
"Q. And when you said 'I had just got my first mobile it was a bright orange Alcatel and I messaged (the appellant)' you meant by that that you had got your first mobile phone, a bright orange Alcatel and you messaged the accused, correct?
A. That's what I wrote.
Q. Was that true?
A. At the time that's what I thought it was.
Q. No is that true?
A. Of what actually happened, no.
Q. I got my first mobile, it was a bright orange Alcatel and I messaged (the appellant) was that true?
A. No.
Q. It's not true?
A. No.
Q. So you didn't tell the truth there?
A. In this statement when I read it - wrote it out I had to write it out over night.
Q. You thought about what you were doing, correct?
A. I thought to the best of my ability.
…
Q. You don't suggest your memory now is better than it was then when you wrote that out in 2004 do you?
A. I remember the events better now than I did then.
Q. Sir, you're not telling the jury the truth about that?
A. Sorry, I didn't hear you.
Q. You are not telling the jury the truth about that?
A. I am telling the jury the truth.
…
Q. The phone you had in 1999 was the bright orange Alcatel wasn't it?
A. No.
Q. You're not telling the jury the truth about that are you?
A. I am telling the truth.
Q. The Alcatel was your telephone that you had immediately before you acquired your Nokia 3210, correct?
A. Yes.
Q. And what you told Pastor Kelly and the detective about having just got your first mobile being a bright orange Alcatel was true wasn't it?
A. At the time I thought it was.
Q. It was in fact true wasn't it?
A. No. At the time I thought it was true.
Q. And when you saw Pastor Bryan singing at the Christmas pageant in December 1999 you then had your bright orange Alcatel mobile phone didn't you?
A. Sorry, you turned away from the microphone, I couldn't hear anything.
Q. I'm sorry, I thought I spoke loud enough for it to carry on, but I will repeat it. When you say you saw Pastor Bryan at the Christmas pageant in 1999, December 1999, you then possessed your bright orange Alcatel didn't you?
A. No.
Q. You're not telling the truth about that are you?
A. I am.
Q. You didn't get your Nokia 3210 until the 9th of June 2000 did you?
A. I had my Alcatel for like 12 months.
Q. No. concentrate on the point of my question please. You didn't get your Nokia 3210 until 9 June in the year 2000 did you?
A. I don't know, I don't remember the dates of when I got things." (T82-86)
21 There was independent evidence from Ms Frankham an employee of the telephone service provider that the Nokia mobile phone was connected on 9 June 2000 and disconnected on 28 June 2002. The contract was entered into by M's mother but the phone was used by M. Ms Frankham produced extensive detailed records of the use of that phone and charges made for various services.
22 The extracts from the testimony by M above set out show fluctuations in his degree of confidence about time frame ranging from certainty in his own mind to doubt. The Crown case on the issue of time frame was essentially simple. If it was correct that contact was made between M and the appellant by means of the Nokia telephone at the time of the offences then the offences must have occurred during the span of time that Ms Frankham specified as when the service was operative. There was no challenge to Ms Frankham's evidence.
23 The records show that between 5 July 2000 and 15 March 2001 there were 476 text messages sent from M's Nokia phone to a mobile phone shown to be operated by the appellant. During the same period 302 text messages were sent in the reverse direction, that is from the appellant's phone to M's Nokia.
24 It is of significance to note that in an electronically recorded interview with police on 30 May 2005 the appellant was asked these questions and gave these responses:
"Q46 Are you familiar with a (M)?
A. I know of him, yes.
Q47 Can you tell me how well you know him?
A. I don't know him well.
…
Q54 Have you ever texted (M)?
A. No.
Q55 Has he ever texted you?
A. Not that I'm aware of, no."
25 It is of further significance that a deliberate decision was made, no doubt bearing in mind the knowledge of what M's recollection apparently was, to withhold from him the material which was ultimately produced by Ms Frankham. Any suggestion therefore that he was given some assistance or coaching in respect of his evidence was avoided.
26 Counsel for the appellant submitted that there was a critical gap in the Crown case in the absence of evidence of a similar nature to the records concerning the Nokia in respect of the Alcatel phone. There was therefore no evidence, one way or another, independent of the testimony of M recited above, as to whether the Alcatel phone had ever been used for text messages.
27 In the course of summing up his Honour directed the jury:
"If you are not satisfied as to his (M) reliability as to which mobile phone he was using at the time of the three incidents alleged you must find him (the appellant) not guilty. I remind you in this regard that the Crown has not produced any records in relation to the use of the bright orange Alcatel mobile phone, nor as to the time he (M) had it in his possession."
28 The references to authorities concerning when time may become of the essence in an indictment rather tend to deflect attention from the real issue in this case. His Honour's direction to the jury earlier set out clearly made time of the essence and the essential question was whether it was unreasonable for the jury to be satisfied beyond reasonable doubt on the whole of the evidence that the offences took place in the span of time specified in the indictment.
29 I do not consider it was unreasonable of the jury to accept the evidence of M that the relevant contact with the appellant was made by use of the Nokia phone. There were a total of 778 text messages exchanged between that mobile phone and that operated by the appellant. Nor was it unreasonable to conclude that M was mistaken about the time of the events but accurate about the appellant's actions. Inter alia, his Honour directed the jury "if you find that (M) is not reliable as to when he had that Nokia 3210 mobile phone and you find that he was (not) in fact using it in the time frame of the alleged sexual abuse, then the proper verdict would be one of not guilty." I have added the word "not" which does not appear in the transcript but the context makes it obvious that his Honour's direction was in terms favourable to the case presented on behalf of the appellant. No complaint was made that there had been any relevant mis-statement and the absence of the negative word is a likely transcription error.
30 Particularly in dealing with delay in complaint, his Honour on more than one occasion directed that it would be dangerous to convict on M's evidence alone unless the jury were convinced of its truth and accuracy. Clearly in the way the trial was conducted, the jury would have understood that the Crown was not relying upon accuracy as to M's evidence concerning the frame of time and his Honour was referring to the descriptions of the offences by M.
31 No complaint has been made of the adequacy of his Honour's directions which included caution on how the jury could approach the Crown allegations that the appellant had told lies. In addition to the answers to police which have been above recited, the Crown relied upon the untruthfulness of a statement signed by the appellant timed and dated 18:15 on 1 December 2004 on the letterhead of the Blue Mountains City Church which read:
"I categorically deny ever having abused (M) and deny having any relationship with (M) other than cordially in the course of normal Church functions, meetings and worship services.
I have never counselled (M) either privately or at the Church premises and he has never approached me directly or asked me to do so at any time."
32 As set out in paragraph iii of the filed grounds of appeal, there were a number of witnesses called testifying to the appellant's good character. He had no prior convictions. No written or oral submission was addressed to this aspect. His Honour gave the jury appropriate directions on the use they might make of such evidence in favour of the appellant, both as to the improbability of offending and the credibility of his evidence denying the offences.
33 As is requisite when a ground such as the present is advanced, it is necessary in this Court to make an assessment of the evidence which was available to the jury. I am unpersuaded that the jury ought to have concluded that the offences occurred outside the span of time in the indictment. Once it was found that M's evidence that at all relevant times he was using the Nokia phone it would be entirely reasonable to find in accordance with the dates specified in the indictment. There is fortification for such a finding in the multitude of texts exchanged between the Nokia and the appellant's phone, many of which were made, the representatives of the telephone service providers were able to testify, late at night. The reasonableness of the jury's conclusion is further confirmed, if they chose and as was open to them in accordance with the appropriate directions given, to give account to the untruths relied upon by the Crown as manifesting a consciousness of guilt in the appellant.
34 I would dismiss the appeal.
35 HULME J: I agree with Grove J.
36 SIMPSON J: I agree with Grove J.
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