BARNETT: Q. Who was the person that encouraged you to say something?
A. Detective Harrison and my parents."
21 The appellant said that he first met the complainant in late 1996 at Bosman's house and thereafter saw him from time to time until about March/April 1998 at that house and at other places with groups of people including people at the go-kart races.
22 The appellant denied each of the incidents alleged by the complainant and denied any sexual impropriety with the complainant. He specifically denied committing each of the kind of acts alleged. He said that on a few occasions he and the complainant were alone as they were on the way to the go-kart tracks. They also went together on their own to the shops a couple of times to purchase items requested by the complainant's mother. He did not think that they were together at other times. The appellant insisted that he was never alone with the complainant in the caravan. He said that several times he and the complainant were at the caravan but not in it. He had spent several nights in the caravan, but never with the complainant. He and Paul Dixon had stayed there.
23 The appellant also knew MA and his parents.
24 The appellant denied that he knew the complainant prior to late 1996; the appellant maintained that he had not even seen the complainant prior to that. The appellant maintained his blanket denial of all the complainant's allegations. He also denied the allegations made in relation to MA. The appellant relied on a letter from Allied Express Transport Pty Ltd that he had been employed by it from 19 July 1996.
25 The appellant was born 19 October 1959. There was a significant age difference between the appellant and the complainant.
26 No complaint was made about the judge's summing-up. The judge reminded the jury that the complainant did not go to the police. They came to him. He did not make any complaint. Amongst other things the judge drew the jury's attention to what the complainant said in evidence and the contradictions in his first statement to the police. The judge instructed the jury at SU9:
"So, in the light of those contradictions, members of the jury, you will of necessity look very closely at the evidence given by [LB] to see whether it is capable of acceptance, whether you could accept it and rely upon it so heavily as to be satisfied beyond reasonable doubt that these events alleged by him did occur. These are events which he actually denied in the first statement that he made to the police. Then of course there was a second statement, the one on 25 May 1998."
The judge, after summarising the evidence of MA and pointing out that his first statement to the police was in contradiction of his evidence, said at SU11:
"So here again you have got a boy contradicting what he said, and not protesting in any way, but then of course you have got to bear in mind that he is the boy who was born in 1984, he will turn sixteen in April next month. So it may be said that these boys are confused, and it is a question then of whether you could possibly rely upon their evidence to substantiate the charge, or charges, some of the charges at least, against the accused."
and
"Because of the contradiction, that sort of contradictory evidence you must look of course at the evidence very carefully, and you will have to make your judgment as to whether or not it is reliable evidence, and if it is not reliable evidence then you should not of course rely upon it."
27 At the conclusion of the judge's summing-up counsel for the appellant was permitted to remind the jury to look closely at the evidence of LB and that of MA, that they were significantly different especially in relation to LB doing things to MA and the appellant placing his penis in LB's anus and that LB did not say any of those things. The judge instructed the jury to bear these matters in mind.
28 The jury retired to consider its verdict about 10.55am. The judge subsequently answered the questions of the jury and at the request of the jury arranged for the evidence of LB and MA to be re-played.
29 A little before 2.25pmn the jury indicated to the judge that they were unable to agree on their verdicts. The judge stated at SU20-21.
"All right so you have a difference of opinion as to what the appropriate verdict should be in respect of each one of these charges. Well as to that, all I can say to you is that you try your hardest to try to overcome differences that exist, but if eventually you cannot resolve the conflicts then you simply cannot return a verdict on any of these counts and you will be what is called a 'hung jury.' The jury will not be able to decide this case in the sense of returning a verdict in respect of each one of the counts."
and
"HIS HONOUR: I do not expect you to go on debating the point for hours but I would suggest to you that you try your hardest at least until 4 o'clock. Is that too much to ask?
FOREPERSON: No sir.
HIS HONOUR: Thank you, you can come back shortly before 4 o'clock and let me know whether you have reached agreement or whether you are still in disagreement. Thank you."
The jury returned with its verdict at 3.10pm.