Regina v Sean Adrian Wilson [2001] NSWCCA 298 | Case summary

1 SULLY J: Mr. Sean Adrian Wilson stood trial in the District Court in May 2000. He was charged with having attempted to incite a child to participate in an act of prostitution, a contravention of section 91D(1)(a) of the Crimes Act 1900 NSW. The trial was conducted by his Honour Judge Ducker sitting alone pursuant to the Criminal Procedure Act 1986 NSW. His Honour found the appellant guilty as charged and convicted him accordingly. The appellant appeals against that conviction. Notice was given of an application for leave to appeal against sentence; but that application was abandoned at the hearing of the appeal against conviction. 2 The Crown case at trial was that on 12 July 1998, and at a time somewhere between 5 p.m and 6 p.m, the 14 year old complainant had been riding his bicycle north in Cherry Street, Ballina. The complainant was riding on the footpath and in the vicinity of a particular intersection. A car drew up beside him, and the driver of the car beckoned him over. The complainant approached close to the near-side of the vehicle and had a conversation with the driver of the vehicle. The conversation took place through the open window of the near-side door, the driver of the vehicle leaning across the passenger's seat and speaking directly to the complainant while looking at him. The complainant was expecting to be asked for directions. What in fact he was asked by the driver was whether he would be interested in earing some easy money by performing an act of fellatio upon the driver. The complainant said in evidence that it took him a short time to grasp what it was that was being suggested to him; but that as soon as he had "clued on" he rejected the suggestion, returning thereupon immediately to his home and reporting the incident, first to his brother and then to his father. 3 Almost at once the complainant, in company with his father and brother, got into the father's motor vehicle and went in search of the person who had accosted the complainant. The complainant's father drove, the complainant sat beside him in the front of the vehicle; and the complainant's brother sat in the rear of the vehicle. The complainant caught sight of a particular vehicle which he thought was the vehicle in which he had been approached, but that proved to be a mistaken impression on the part of the complainant. Shortly thereafter, however, the complainant saw a vehicle and a driver which he clearly recognised. He pointed the vehicle and driver out to his father who gave chase. During the course of the chase the complainant had, according to his evidence at trial, further opportunities of confirming his initial identification; and those further opportunities did in fact confirm his initial identification. Attempts were made by the complainant's father to intercept the other vehicle; but those attempts were of no avail. The registration number of the other vehicle was noted; and it proved to be a vehicle owned by the appellant. 4 The initial police investigations were very poorly handled, a matter drawing some very sharp particular criticisms from the learned trial Judge. The appellant was, however, interviewed in due course by the investigating police; and he denied any connection with the incident that had been reported by the complainant. The appellant gave, subsequently, evidence at his trial; and he there re-affirmed his simple and comprehensive denial of any involvement in the particular incident. 5 The following amended grounds of appeal were notified: "1. The verdict is against the weight of the evidence. 2. His Honour erred in giving such weight to the identification evidence by the complainant as to lead to conviction. 3. His Honour erred by considering issues that were outside the evidence. 4. A combination of grounds 2 and 3 has led to his Honour making an error in his finding of guilt." 6 Judge Ducker took time to consider his verdict. His Honour returned his verdict in the form of a 40 page statement of reasons for verdict. The document is, with respect, clearly and closely reasoned. His Honour structured his analysis, and his process of reasoning, around three particular questions: first, did the alleged offence occur at all?; secondly, if so, could it have been the appellant who committed the offence?; and thirdly, could the complainant's identification of the appellant as the offender be accepted as correct beyond all reasonable doubt? His Honour gave, as well, detailed and separate consideration to the appellant's case as presented at trial. 7 It will be convenient to deal, presently, with the merits of the present appeal by adopting for that purpose the basic structure thus adopted by the learned trial Judge. Before proceeding to do that, it is appropriate to advert to some important matters of principle concerning the nature of the present appeal. 8 In Fleming v The Queen (1998) 197 CLR 250, the High Court of Australia considered the applicability of, in particular, section 6(1) of the Criminal Appeal Act 1912 (NSW) to the case of a trial that had been conducted by a Judge alone pursuant to the Criminal Procedure Act 1986 (NSW). Relevant for present purposes is paragraph 26 in the judgment of the Court. That paragraph reads: "……………(T)he first limb of s.6(1), which deals with the unsatisfactory quality of 'the verdict of the jury', must now be seen through the prism of s.33(1). The first limb will address attention to the evidence upon which the trial judge acted, or upon which it was open to the trial judge to act, in reaching the finding as to ultimate guilt. Approached on that footing, is that finding 'unreasonable' or one which 'cannot be supported'? It is unnecessary on this appeal to determine whether, in such cases under the first limb or in cases under the more broadly stated third limb, the appellate court will intervene, as it was put in passages from decisions of the Court of Criminal Appeal set out earlier in these reasons, only where there was no evidence to support a particular finding, the evidence was all one way or there has been a misdirection, leading to a miscarriage of justice. 9 The decisions of the Court of Criminal Appeal to which reference was made in that paragraph are: R v Kurtic (1996) 85 A Crim R 57 at 60; R v Ion (1996) 89 A Crim R 81 at 85-86; R v O'Donoghue (1988) 34 A Crim R 397 at 401. 10 I draw attention to the foregoing matters because the written submissions put in by the Crown in connection with the present appeal draw attention specifically to the relevant passages in the judgment of Hunt CJ at CL in Kurtic. It seems to me that, having regard to the way in which the High Court expressed itself in paragraph 26, quoted above, the proper approach of this Court is to look for itself at the evidence before his Honour Judge Ducker; and to ask whether, given that evidence, his Honour's ultimate finding of guilt is "unreasonable" or one which "cannot be supported". 11 The first question posed for himself by Judge Ducker: that is to say, the question whether the alleged offence had occurred at all, was, in my respectful opinion, an obviously logical point of departure for a reasoned consideration of the ultimate question whether the Crown had proved beyond reasonable doubt the appellant's guilt as charged. That first question entailed an assessment by his Honour of the basic credibility and reliability of the complainant. It suffices to say that no case was made at trial that the complainant was simply making up his basic narrative of how he had been accosted and propositioned. It is, however, clear that his Honour, in accepting the complainant's basic narrative, did not rely only upon the absence of any suggestion that such basic narrative was a simple and comprehensive fabrication; but made clear and positive findings favourable to the credibility and reliability of the complainant. These findings were undoubtedly open to his Honour. 12 The second question posed by Judge Ducker for himself was intended by his Honour to test whether the appellant could have had, in any event, an opportunity to do what he was alleged to have done. 13 His Honour approached this question by plotting, as carefully as he could on the available evidence, the movements at relevant times of the appellant. His Honour noted that the appellant, when first approached by the police at his home in Maclean at about 7.10 p.m., admitted that he had driven a short while previously from Ballina to Maclean; that he had stopped in Ballina on his way back from having refereed a football match at South Lismore, and after having performed various other associated duties at that location; and that he had arrived in Ballina at a time that he estimated to have been between 5.30 p.m. and 6.00 p.m. His Honour's analysis led him to a conclusion that the most likely time of the appellant's arrival in Ballina had been "somewhere between 5.00 and 5.30 p.m., which from the whole of the evidence I think was also the most likely period during which the crime was committed". His Honour concluded that the evidence showed "that in terms of his whereabouts at material times …………. (the appellant) ………….. could have committed the offence". 14 In the course of his consideration of the question of opportunity, Judge Ducker made the following two statements: "To drive from the South Lismore Soccer Field to the Lismore McDonalds restaurant would not have taken 5 minutes, more like two, I think." and : "On a Saturday in July, I think the traffic conditions would not have been heavy. At an average speed of 70 kmh the trip from McDonalds at Lismore to Cherry Street, Ballina could have been made in half an hour." 15 It is submitted for the appellant that these propositions went beyond the evidence. 16 As to what was said in the first of the two quoted passages, it is sufficient to note that it was put to the appellant in cross-examination that to travel from the South Lismore Soccer Club to the relevant McDonalds "would only take you a couple of minutes wouldn't it?"; to which suggestion the appellant replied: "Yeah that's what I said". 17 As to what is said in the second of the quoted paragraphs, it suffices to say that when his Honour's observations are read fairly in the context of the whole paragraph of which they are but a part, it is clear that all that his Honour is saying is that he accepts the lowest point on the range of 30 to 35 minutes for the relevant trip, which range was the estimate given by the appellant himself in evidence. 18 In my opinion those particular submissions in support of the present appeal are unsustainable. 19 In my opinion no error, either of law or of fact, has been shown in his Honour's discussion of the appellant's opportunity to commit the offence charged against him; or in his Honour's conclusion that, beyond reasonable doubt, it could be found that the appellant did, at least, have the opportunity to do what he was said in fact to have done. 20 It then remained for his Honour to resolve the third of the questions that his Honour had posed for himself: that is to say, the question of the safety and reliability of the complainant's identification of the appellant as the person who had accosted and propositioned him. 21 It is trite that his Honour was bound to approach this question with all proper caution, having in mind the repeated warnings of the High Court of Australia and of the Court of Criminal Appeal concerning the dangers inherent in visual identification evidence. It was not submitted in support of the present appeal that his Honour had shown any misapprehension of what was required of him by the current law on that topic. 22 The complainant's evidence at the trial was that after he, his father and his brother had been driving around for about 3 to 4 minutes, he had seen in the vicinity of Ballina Fair a motor vehicle which he thought looked similar to the one involved in the relevant incident. His father's vehicle came "right up beside" this other vehicle; and the complainant realised both that the driver was not the person who had accosted him, and that the colour of the vehicle was the wrong colour. 23 Shortly thereafter, and at the front of the Ballina R.S.L. Club, the complainant caught sight of another vehicle. The vehicle in which the complainant was travelling was moving in an easterly direction, while the other vehicle was moving in a westerly direction, "but at a very slow pace, because the traffic was held up". The complainant gave evidence that he had been able to see clearly inside this other vehicle, and that he had recognised the driver of the vehicle, that driver being the appellant, as the person who had earlier accosted him. The complainant called out to his father to turn around and follow the appellant's vehicle, and that is what happened. 24 The vehicle in which the complainant was travelling then followed the appellant's vehicle for some time towards McDonalds in West Ballina. The complainant said that the appellant's vehicle had turned off the highway into another road adjacent to and parallel to the highway; that his father had followed; and that the two vehicles had proceeded "down to some back streets in West Ballina", eventually coming to a halt in a cul de sac. The complainant's father went to get out of his vehicle, calling to the appellant to stop. At that stage the two vehicles were facing each other about half a metre or thereabouts apart. The complainant said that he could, once again, see clearly the driver of the other vehicle; that his father asked him again before getting out of the car whether he was sure that that was the person concerned; and that he had replied : "Yes, that's definitely him". 25 The appellant's vehicle, according to the complainant, "took off"; and drove back out onto the highway and in the direction of a land-mark known as "The Big Prawn". The complainant's father continued to give chase to the appellant, attempting in various ways to get the appellant to bring his vehicle to a halt. In this, the complainant's father was unsuccessful; and the appellant, who was driving a much more powerful vehicle, managed to shake off further pursuit. Before the appellant's vehicle disappeared from view, the complainant noted the number of the other vehicle. It was not disputed at trial that the vehicle belonged to, and was being driven at the time of the car chase by, the appellant. The complainant, his father and brother, then went to the police station and reported the complainant's earlier experience. 26 After the complainant had given the evidence which I have thus summarised, Judge Ducker asked him a number of questions. These questions, and the complainant's answers to them, lie at the heart of the submissions now put for the appellant. The portion of the complainant's evidence is as follows: "His Honour: Q. At this stage I would like to know what it was about the driver in this car that allowed the witness to say that it was the same person and/or the same car. Witness: A. It was his hair, because it had the bleached blond tips, and I could see it real good. Q: He had what? A: It was his hair, because it had the bleached blond tips and I could see it good. Q. Hair, bleached blond tips was it? A. Oh, and the car, because the sun roof was open and I still remembered that. Crown Prosecutor: Q. When you just gave that answer to his Honour, which time are you talking about when you observed that question? A. The one when we were out the front of the R.S.L. Club." 27 Asked to describe the vehicle, the drive of which had accosted him, the complainant said that it was "purple or blue, and had a sun-roof that was open. ……………….And it had grey or silver hub caps on it, with black tyres and I think it was a two-door, I'm not quite sure. And it was a sporty looking car". 28 The complainant was closely cross-examined. He did not dispute that he had seen the man who had accosted him for a comparatively brief period: originally; outside the R.S.L. Club; in the cul de sac; and in the vicinity of the Big Prawn. He was, however, adamant that he had had on each of those occasions an opportunity to get a good look at the other person. He agreed that, at the time of the original encounter in Cherry Street, it had been neither broad daylight nor completely dark, but somewhere in between those two extremes. He accepted that the later sightings all took place at a time when it was dark. He was, however, adamant that the lighting conditions had not impaired his capacity to get a good look at the other person on each of the occasions when he had done that. 29 He accepted that he had, originally, said consistently that the colour of the relevant vehicle was purple; but had later said that it might have been dark blue. He said that he could not remember what in particular had caused him to nominate the alternative colour. 30 Judge Ducker, when his Honour came to canvass in his reasons for verdict the evidence of the complainant, took note of the description which I have earlier quoted from the complainant's evidence at trial, and took note also of the additional description originally given to the police, namely, that the person who had accosted him "had bleached blond hair that was sort of black closer to his head ……………….. like black roots". The appellant's own evidence at trial had been that he had never had black hair, although he had at one stage peroxided his hair. The appellant's evidence had been that the peroxided hair had been grown out by the time of the alleged incident in Cherry Street. 31 His Honour, dealing with this aspect of the evidence, came to the following conclusion: "The defence sought to make much of the fact that the accused's hair does not and did not have black roots. However, given that the boy was talking about the roots of his hair ("closer to the head") and emphasising the contrast with its bleached blonde tips, as I have already said, I regard this as only a minor imperfection in his evidence." 32 In my opinion this conclusion was well open to his Honour. 33 It is clear from the remarks on verdict that the trial Judge was, at the end of the Crown case, and before hearing any case for the defence, very impressed by what he had seen and heard of the complainant. It is obvious that his Honour then regarded the complainant as prima facie reliable in his identification of the person who had accosted him. Those views of the trial Judge were formed, of course, in the light of his Honour's advantage, denied to this Court, of seeing and hearing the complainant. 34 The appellant gave evidence at trial, and the remarks on verdict contain a careful canvass of that evidence. 35 Not only did the appellant deny flatly any such encounter with the complainant as had been alleged by the latter; but he denied also that there had been a car chase anywhere except over a comparatively short portion of the main highway. The appellant did not deny that he had detoured into Ballina on his way home from South Lismore to Maclean; but he denied that he had been in some of the parts of Ballina where the complainant had supposedly seen him; and he denied ever having pulled off the highway and having then driven through a number of back streets in Ballina in an attempt to shake off the pursuing vehicle driven by the complainant's father. 36 It was true, of course, and as the trial Judge noted carefully, that the appellant, by electing to give evidence at his trial, did not thereby undertake any burden of proof. It is, however, the case that once the appellant did enter the witness box, the trial Judge's assessment of the truthfulness and reliability of the appellant was of critical importance. 37 It is clear from the remarks on verdict that the trial Judge formed a very unfavourable view of the appellant as a witness. His Honour drew, in that connection, a stark contrast between some things that the appellant had said during the course of an electronically recorded interview with the investigating police; and some things said by the appellant in his evidence at trial. 38 Both in his recorded interview, and in his evidence at trial, the appellant did not dispute that he had in fact been in Ballina at about the time at which the original incident was alleged to have taken place. He denied that he had ever been in, or in the vicinity of, Cherry Street; and he said that he had only stayed in Ballina long enough to visit, briefly and in quick succession, two particular locations which he described as well-know "beats": that is to say, places of common resort for, relevantly, homosexual men. His Honour reviewed the answers in the electronically recorded of interview in connection with these two brief visits; and assessed them as follows: "The implications are clear. I draw from these answers, pregnant as they were with sexual innuendo, the obvious conclusion that this was an attempt by the accused to portray himself as a homosexual man looking for a casual sexual liaison. Whether this evidence was true or not, that was clearly the import which he wished to convey at that time ." [emphasis reproduced, not added] 39 In my opinion it cannot be said that it was not reasonably open to his Honour, as the tribunal of fact, to come to those conclusions about that material. 40 His Honour contrasted with this material the evidence given at trial by the appellant. At trial, the appellant said that he had gone to the two "beats", not in order to have a sexual encounter with anybody, but in order to have, simply, conversation with "people of like mind"; or, as the appellant put it during cross-examination, for the purpose of "looking for human interaction". 41 His Honour's reaction to this evidence was expressed by him as follows: "The accused at his trial, I strongly suspect, having in retrospect realised and regretted the unwisdom of depicting himself as a prowling seeker after gay sex, in his evidence did his best to resile, in my view unconvincingly, from this self-created image by maintaining that he was only looking for conversation with a compatible companion." 42 Some of the things thus said by his Honour are alleged by the appellant to be indicative of invincible bias on the part of his Honour against the appellant as a homosexual man. Leaving aside for the moment that aspect of what his Honour said, and considering for the moment the different question whether it was reasonably open to his Honour to point the contrast, and then to draw the inferences, to which I have referred, I am of the opinion that it was reasonably open to his Honour to do both of those things. 43 His Honour preferred the version given by the complainant, and corroborated by the complainant's father and brother, as to the course of the pursuit of the appellant's vehicle. I am not persuaded that his Honour, as the tribunal of fact, was not entitled to take that view. 44 His Honour summarised as follows his assessment of the appellant: "I found the accused an unimpressive witness. He clearly tried to retreat from the sexual reason for going to Ballina that he gave in his ERISP and I am sure that he lied about having not turned off the highway when he did. His evidence does not raise any doubt in my mind." 45 It is a question for this Court whether, having made its own independent assessment of the evidence at trial, and bearing in mind the advantages enjoyed by his Honour in the matter of seeing and hearing the witnesses, and of having an immediate and contemporaneous sense of the way in which the trial was unfolding, this Court has a reasonable doubt about, relevantly, the safety and reliability of the complainant's identification of the appellant; so that it can be held properly by this Court that his Honour, too, ought to have had a reasonable doubt upon the ultimate question of the guilt as charged of the appellant. 46 I have done my best, in the absence of any opportunity to see and hear for myself, in particular, the complainant and the appellant, to make an independent assessment of the evidence as it appears from the trial transcript. One thing that seems to me to be significant in that regard is the nature of the proposition that was made to the complainant. Had the complainant been asked to identify, some time after the event, a person whom he had encountered briefly in some entirely normal kind of context, such as the giving of street directions or something simple of the kind, then it seems to me that there might well have been more reason to feel uneasy about the subsequent identification than in the present case. In the present case, the suggestion made to the complainant was anything but normal. It was both confronting and affronting to the complainant. It was made face to face. The distance separating the complainant from the driver of the motor vehicle was comparatively short. The light was comparatively good. The subsequent sightings and identifications were made very soon after the original incident; and at a time when it is reasonable to suppose that the mental picture which had been absorbed by the complainant in those unusual circumstances, was fresh in his mind. When there are factored in, additionally, the appellant's admitted presence in Ballina at material times; and the finding, open to the trial Judge, that the appellant was not to be believed in his denial that there had been any off-highway pursuit; then, in the end result, I am unpersuaded that this Court would be justified in holding that the trial Judge ought to have had a reasonable doubt about the guilt as charged of the appellant. 47 It remains to deal with the matters said to go to the issue of bias. 48 The gist of the present complaints is put succinctly, and as follows, in the written submissions of learned counsel for the appellant: "…………………… his Honour ……………….made statements which would tend to suggest that his Honour's judgment was clouded by either extraneous matters or certain unfortunate language which tends to suggest that his Honour had prejudicial perceptions as to people such as the appellant, who is an acknowledged homosexual." 49 Complaint is made of the second of three connected sentences in the following paragraph which appears at pages 11 and 12 of the remarks on verdict: "Whatever may be the reason, no attempt appears to have been made by the offender (whoever he was) to disguise himself. As events in the Oval Office have revealed, when possessed of strong sexual desire, people may sometimes be prepared to run extraordinary risks. His action may have been impulsive." 50 It is submitted that there is a non sequitur bound up in these comments of his Honour. In my opinion, his Honour's remarks involve no non sequitur. His Honour was doing no more than remarking that, although it might appear at first blush to have been odd that the offender, "whoever he was", had not apparently disguised himself before making an improper sexual approach to a minor, it was in fact not unusual for such a person to act impulsively if his then sexual desires were sufficiently rampant. All of that seems to me to involve not so much a non sequitur, as elementary common sense. 51 Complaint is made of his Honour's description of the appellant as "a prowling seeker after gay sex". This description was nothing more than his Honour's way of summarising the answers, to which he had referred on the preceding page of the remarks on verdict, given by the appellant in the course of his recorded interview with the investigating police. His Honour's description is characterised in the appellant's submissions as "unfortunate language tending to suggest prejudice on the part of his Honour". In my opinion, a fair reading in context of what his Honour said is neither unfortunate nor suggestive of prejudice. 52 Complaint is made about two particular aspects of the following passage appearing at pages 25 and 26 of the remarks on verdict: "The word 'poofter' is now widely used by homosexual men themselves in a non-pejorative sense a little like other Australian men refer affectionately to and of each other as 'bastards'. It is also quite commonly used as a term of abuse in situations such as 'road rage' having nothing to do with sex. It does seem strange that the accused would have immediately interpreted what he says was said by …………..(the complainant's father) …………as an assault on his sexual preferences rather than just common abuse. On the other hand one does get the impression that the accused is extremely sensitive, in a somewhat abrasive way, and keen to complain about what he sees as hostility and discrimination against, and non-acceptance of, gay people. Whatever may be the truth of the matter, I don't feel that this is helpful for present purposes to pursue its topic" 53 It is submitted that his Honour's observations about the word "poofter" is "……….highly offensive, not supported by any evidence in the trial, and indeed in the circumstances of the car pursuit were certainly used in a most pejorative sense" 54 I agree that what his Honour said was not supported by any specific evidence in the trial. I fail to see how that premise leads at all, let alone leads indubitably, to an inference of invincible bias on the part of the trial Judge against homosexual men. I agree that, in the circumstances of the relevant car pursuit, the word "poofter", if in fact hurled repeatedly at the appellant by the complainant's father as the appellant alleged, was being used in a pejorative sense. Once again, I do not see how that proposition leads to a reasonable inference of invincible bias on the part of the Judge. To suggest that what his Honour said is "highly offensive" seems to me to be, if I may respectfully say so, something of an over-reaction to what was, at worst, colourful expression. 55 As to the balance of his Honour's observations about the perceived sensitivity of the appellant, I take his Honour to have been remarking upon something that I myself think is immediately apparent upon a reading of the relevant material: namely, that the first reaction of the appellant to the suggestion that he had improperly made a sexual advance to the complainant, was not only to deny the allegation, but immediately to swing into what might be called attack mode, alleging homophobic, and otherwise wholly unjustified, motivation for the car pursuit in which he was undoubtedly, and admittedly, involved. 56 As to the "impression" of which his Honour speaks, it seems to me to be an impression which a reasonable reader of the trial transcript might well receive, even without actually seeing and hearing the appellant. I do not see why the impression was any the less open to his Honour who both saw and heard the appellant. I agree with his Honour's observation that all of the foregoing considerations are, ultimately, of no utility in resolving the central issues for trial arising from the Crown and defence cases as presented at trial. 57 I do not accept the submission that it is a reasonable inference that his Honour's remarks were indicative of bias on the part of his Honour towards the appellant as a homosexual man. 58 It is next submitted on the issue of bias that: "Yet another example are his Honour's comments concerning the police visit to the appellant's home. His Honour says that this provided 'him with an opportunity to hide or otherwise dispose of any embarrassing articles he might have had…………..'. This is, we submit, gratuitous, offensive and unsubstantiated comment by His Honour. Is it suggested that all homosexual people must have embarrassing articles to be disposed of if the police are coming to visit? This comment surely approaches the level of possible prejudice on the part of His Honour to homosexual people." 59 It is appropriate to quote from the remarks on verdict the following two paragraphs, the second of which contains the material of which present complaint is made:

"The police investigation does appear to have gone seriously awry. There appears to have been a worrying breakdown in communication, either a failure to inform Senior Constable Bagwell of the purpose for which he was to interview the driver of the accused's vehicle or Bagwell himself blundered and misunderstood what he was supposed to do. Whatever be the case, his 'investigation' (for want of a better word) was confused, superficial, off the point and unhelpful. He made no record of how the accused was then dressed. No search warrant or consent to search the accused's premises was obtained or even sought and no search was made. No accurate record was made of Bagwell's conversation with the accused. He clearly failed to understand what the accused was saying to him. Parts of his evidence before me were likewise confused, contradictory, incomplete and unhelpful. I cannot off hand recall a worse police witness As things turned out, about all that Bagwell's visit achieved was to put the accused on notice that he was being investigated, thus providing him with an opportunity to hide or otherwise dispose of any embarrassing articles he might have had and to prepare in advance for any further interviews. To make matters worse the accused was not further interviewed until 4 days later." 60 It seems to me that a fair reading of the entirety of these two paragraphs justifies an inference that what his Honour was intending to convey by the material of which present complaint is made, is that the incompetence of the original police investigation gave the appellant some 4 days' notice of the likelihood that he would be interviewed by the police; and gave him, therefore, an opportunity to dispose of anything then in his possession and capable, if found and seized by the investigating police, of implicating him in the alleged offence. A fair reading of the relevant material makes plain, in my opinion, that the whole thrust of what his Honour was saying was not directed to the homosexuality of the appellant, but to what his Honour regarded as the egregious incompetence of the original police investigation. 61 Finally, on the issue of bias, the following is made in the written submissions of the appellant: "His Honour says 'I believe that the fact that the accused drove out of his way to go to Ballina in the hope of an encounter with another male person who was 'his type……………tends to support both the boy's truthfulness as to the event having occurred and the accuracy of his identification of the accused'. We submit that is so obviously a non sequiter (sic) as to be manifest error which has led His Honour to a conclusion of guilt." 62 His Honour did, indeed, make the comments of which the appellant now complains. It is, however, important, yet again, to set the questioned material fairly into the context of which it forms but a part. That context is fairly set by the following three connected passages which come at the very end of the remarks on verdict: "I accept that on three occasions, a few minutes apart, and all less than an hour after the offence occurred, ………[the complainant] …….was able to identify the accused as the offender. On two of these occasions he told his father and brother so. While searching for the vehicle he told his father that they were looking for a man having peroxide hair with dark roots growing out. His description of the age and build of the offender and his hairstyle fitted the appearance of the accused. His description of the offender's vehicle closely matches that of the accused's vehicle. In my view, the likelihood of there being two male persons in Ballina of about the accused's age and build, each with the same most unusual hair, driving a very similar vehicle with the sun-roof open and the front driver's window down, looking for a male to male encounter, would seem to require an extraordinary coincidence. I believe that the fact that the accused drove out of his way to go to Ballina in the hope of an encounter with another male person, who was "his type" , (with the implication in his first version, for sexual purposes), tends to support both the boy's truthfulness as to the event having occurred and the accuracy of his identification of the accused." 63 Were the third of those three paragraphs to stand alone, then I would agree that it was at least reasonably arguable that the paragraph contained a non sequitur of the kind now suggested. The reasonable understanding of that paragraph is, however, in my opinion changed when the paragraph is read fairly alongside the two immediately preceding paragraphs. It then becomes apparent, in my opinion, that his Honour is doing no more than drawing together in a general kind of way a number of matters which appear to his Honour to be importantly inter-related. In my opinion, it was open to his Honour to come to the overview expressed in the combined contents of the three quoted paragraphs. 64 In connection with all of the complaints now made of bias on the part of the learned trial Judge, it is timely to say, yet again, that the Court of Criminal Appeal sits as a Court of Error. The Court is not a Court of morals. The Court is not an arbiter of the idiomatic English expression of any particular Judge. The Court is, most emphatically, not a vehicle for any form of censorship. The allegation that a Judge has found a verdict in a criminal trial faithlessly to the judicial oath, is a serious allegation to make at any time. If it is to be made properly in a particular case, then in my opinion something more, and a good deal more, is required than the resourceful and selective culling of a word here and a phrase there out of a judgment as carefully and closely reasoned as the judgment from which the present appeal has been brought. 65 For the whole of the foregoing reasons, I am of the opinion that none of the grounds of appeal has been made good. 66 In my opinion, the appeal against conviction should be dismissed.

Regina v Sean Adrian Wilson

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