Sepulveda v R

Sepulveda v R - [2006] NSWCCA 379 - NSWCCA 2006 case summary — Zoe

[16]

Application for Extension of Time to Appeal Against Conviction at Second Trial 8 Until shortly before the hearing of this appeal on 18 May 2006, the Appellant's Notice of Appeal was confined to the first trial and the grounds of appeal which had been notified were limited to that trial. On 16 May 2006, the Appellant's solicitors gave notice of appeal with respect to the second trial. The Appellant seeks an extension of time to file that Notice of Appeal. 9 It is apparent that the Appellant has failed to comply with the provisions contained in clauses 3A and 3B Criminal Appeal Rules with respect to the second trial. An application for an extension of time may be made after the expiration of the relevant period: clause 3B(2). The Court has a discretion with respect to an extension of time. In exercising that discretion, the Court has regard to the prospects of success on the appeal itself, and will usually require some satisfactory explanation as to why an appeal was not brought within the time allowed, especially if the delay is considerable: Douar v The Queen (2005) 159 A Crim R 154 at 163 [53]. 10 In the present case, Mr Molomby SC, for the Appellant, submits that the grounds of appeal against conviction with respect of the second trial are virtually the same as the grounds concerning the first trial. He informed the Court that the explanation for the failure to lodge an appeal concerning the second trial is oversight on the part of the Appellant's legal representatives. 11 The Crown neither opposed nor consented to the application for extension of time. At short notice, the Crown prepared written submissions and a trial summary concerning the second trial so that the Court would be in a position to deal with that appeal at the same time as the appeal concerning the first trial, if an extension of time was granted. The Court was assisted greatly by the urgent preparation of this material by the Crown. 12 It is true that the grounds of appeal against conviction are very similar with respect to both the first and second trials. In these circumstances, an extension of time ought be granted to the Appellant so that, in the interests of justice, the grounds of appeal concerning both trials may be determined by this Court. This approach has been influenced significantly by the willingness of the Crown to prepare urgently for the appeal with respect to the second trial, so that the Court is in a position to deal with both appeals at the same time. It is the case, however, that the appeal papers provided to this Court are prepared by reference to the trial or trials to which grounds of appeal relate. In this case, due to the Appellant's delay, the Court received material concerning the second trial in a fragmented and disorganised way during the course of the hearing. 13 The decision to extend time in the present appeal ought not be taken as encouragement to other appellants to leave decisions of this type to the last minute, in the expectation that an extension of time will necessarily be allowed.

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Counts Concerning JD 20 The Appellant stood trial on six counts concerning JD, and was convicted on two counts. 21 Count 1: Between 1979-1981, when JD was about 9-11 years old, he was with the Appellant when he was cleaning the Wilson's Fabrics Building in Waterloo. He remembered the Appellant playing with, and then sucking, his (JD's) penis. JD said that he (JD) ejaculated into the Appellant's mouth (verdict - not guilty). 22 Count 2: Between 1982-1984, when JD was about 12-14 years old, he was helping the Appellant cleaning a building in Neutral Bay. He remembered them getting on the floor and sucking one another's penises in what he now described as a "69" position (verdict - guilty). 23 Count 3: Again between 1982-1984, when JD was about 12-14 years old, he recalled that he got cheeky with the Appellant, who slapped him in the face, but the Appellant soon after apologised and offered to buy him a watch, as well as pay him for sex. JD sucked the Appellant's penis until the Appellant ejaculated (verdict - guilty). 24 Count 4: In 1983-1984, when JD was about 13-14 years old, he was with the Appellant in another building at Lane Cove. He recalled that there were pool umbrellas and lounges on display in part of the building. The Appellant asked if he could lick JD's anus and, in due course, JD let him do this. Whilst the Appellant was doing this, the Appellant played with JD's bottom until JD ejaculated. This happened in the pool showroom (verdict - not guilty). 25 Count 5: In 1983-1984, when JD was about 13-14 years old, again at the Lane Cove building, the Appellant was licking JD's bottom and also masturbating him. The Appellant tried to place his penis in JD's anus but JD jumped up and got cranky at the Appellant (verdict - not guilty). 26 Count 6: In 1983-1984, when JD was about 13-14 years old, again at the Lane Cove building, the Appellant was simulating anal sex between JD's legs and attempted to stick his penis in JD's anus. JD jumped up and did not let him do this (verdict - not guilty).

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Counts Concerning BD 27 The Appellant stood trial on 13 counts concerning BD, and was convicted on 11 counts. 28 Count 7: Between 1978-1980, when BD was about 12-13 years old, BD remembered being in a building (Wilson's Fabrics at Waterloo) with the Appellant and going with him into the sick bay in a ladies' toilet. The Appellant unzipped his (the Appellant's) pants, pulled out his penis which was hard and erect, and BD sucked the Appellant's penis until the Appellant ejaculated onto a paper towel because BD would not accept it in his mouth (verdict - guilty). 29 Count 8: At the same time and place as Count 7, the Appellant performed oral sex on BD (verdict - guilty). 30 Count 9: Between 1978-1980, when BD was about 12-13 years old, again at Wilson's Fabrics at Waterloo, the Appellant and BD were in the sick bay in the ladies' toilet. The Appellant asked him to try anal sex. BD was lying on his side and the Appellant began penetrating him but it hurt (verdict - guilty). 31 Count 10: At the same time and place as Count 9, once the Appellant and BD stopped having anal sex, they finished off with oral sex (verdict - guilty). 32 Count 11: Between 1979-1980, when BD was about 13 years old, again at Wilson's Fabrics at Waterloo, he remembered lying flat on his stomach after the Appellant placed him face down on the lounge. The Appellant knelt down so he was sitting on his heels, dragged BD up by his hips and put his penis part way up BD's anus. He stopped and sucked BD's penis, then continued with the anal intercourse, until BD ejaculated in his mouth (verdict - guilty). 33 Count 12: At the same time and place as Count 11, BD asked the Appellant to wash his penis. The Appellant went out, then came back into the room and BD sucked the Appellant's penis until the Appellant ejaculated (verdict - guilty). 34 Count 13: Between 1979-1980, when BD was about 13 years old, he was with the Appellant and another boy in the sick bay at Wilson's Fabrics at Waterloo when the Appellant penetrated BD's anus with his penis while the other boy was kneeling down in front of BD and sucking BD's penis (verdict - guilty). 35 Count 14: Between 1980-1981, when BD was about 14 years old, he went to the Appellant's house in Stanmore during the day. BD remembered sleeping, watching videos and waking up and saw that the Appellant was pulling down his pants, and then anally penetrating him, for a few minutes until the Appellant ejaculated into BD's anus (verdict - guilty). 36 Count 15: At the same time and place as Count 14, the Appellant masturbated BD until BD ejaculated (verdict - guilty). 37 Count 16: Between 1982-1983 when BD was about 16 years old, he was cleaning a building at Lane Cove with the Appellant. BD particularly remembered this incident because he had his learner's permit, and was permitted to drive the Appellant's Holden Monaro. There was a soft couch in the building and he remembered lying face down. The Appellant anally penetrated BD until the Appellant ejaculated (verdict - guilty). 38 Count 17: At the same time and place as Count 16, the Appellant performed oral sex on BD (verdict - guilty). 39 Count 18: This was an allegation of buggery at Lane Cove between 1982-1984. However, BD did not give evidence of this occurring. His evidence was that he was participating in a threesome with another boy and the Appellant and the other boy sucked BD's penis until BD ejaculated (verdict of not guilty by direction). 40 Count 19: This was an allegation of buggery at the Appellant's new home in Auburn in 1983-1984 when BD was "about 18". In light of the dates and the decriminalisation of homosexuality between consenting adults in 1984, a verdict of not guilty was directed on this count.

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Relationship, Tendency and Coincidence Evidence 41 The Crown led relationship evidence of other sexual behaviour between the Appellant and the victims. Some of the charges were particularised in the indictment by reason of each victim's particular memories or associations of other events that occurred in these incidents. 42 Tendency and coincidence evidence was led by the Crown arising from the Appellant's conviction for homosexual intercourse in 1985 with a separate victim, BG, when BG was aged 14 years. This evidence was given through a retired police office, Mr Fluke. He testified that, on 30 August 1989 (having been charged in February 1986), the Appellant pleaded guilty to having homosexual intercourse on about 10 December 1985 with BG, aged between 10 and 18 years, for which he was sentenced to imprisonment for 18 months to be served by way of periodic detention. The Appellant had picked up BG, a mentally disabled 14-year old boy, from the vicinity of the Sydney Entertainment Centre and had taken him to one of his cleaning jobs in Neutral Bay. He had anal intercourse with the boy whilst he lay naked face down on the lounge. Prior to driving the boy home, the Appellant gave him $30.00 cash. In addition to the evidence of Mr Fluke, the Crown called BG who gave evidence to the effect that the Appellant sexually assaulted him in the manner described above. 43 The Crown contended that there were striking similarities between the indecent sexual conduct of the Appellant towards BG and his conduct towards the complainants JD and BD (except with respect to Counts 14 and 15). This included sexual conduct having occurred in empty buildings where the Appellant regularly cleaned and his payment of money for sex. The Crown contended that this was evidence available to be used by the jury to conclude (in respect of counts other than Counts 14 and 15), that the Appellant had "a tendency to strike up relationships with boys of an age similar to the alleged victims in this case, to take them to buildings which he had a contract to clean, to engage in indecent sexual contact with them, and to pay them small sums of money" (SU20). The Crown contended that it was also open to the jury to consider that the Appellant's conduct in the present case, and in the case of BG, was "so strikingly similar that you would regard this coincidence as tending to remove any doubt from your mind that the accused was guilty of the present charges - that is to say, all the charges except 14 and 15" (SU20).

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48 Before the jury, JD said the purpose of taping the Appellant "was because he sexually abused me when I was young and plus he sexually abused my brothers and he broke my mother's heart" (T155.1, 9 June 2004). JD explained "yes, I was just trying to get what happened to us when we were young and plus some of the other boys that were around, I was just trying to get justice for everyone" (T155.33). 49 After the cleaning job, the Appellant drove JD home. As JD got out of the car, he informed the Appellant that he had taped their conversation. According to JD, the Appellant cried and offered him $50,000.00 for his silence and the tape. A week later, JD settled on $2,000.00 which he needed for arrears on rent. He met at a Commonwealth Bank where the Appellant organised for JD to sign a document that he would not take the Appellant to court. 50 JD signed two documents. The first (Exhibit C) stated "I [JD] will setel [sic] for $2,000.00 not to take Albert Robinson to court for melestoring [sic] me and my brothers and friends 19 years ago. JD". The second document (Exhibit D) stated "I, [JD], will not take Albert Robinson to court because he paid me $2,000.00". The Appellant handed JD the money, which JD later discovered to be only $1,750.00, and JD handed the Appellant a tape - but it was not the right tape. JD kept the correct tape. Exhibits C and D (the documents written by JD) were found by police in the Appellant's house when he was arrested a year later. 51 With the money obtained from the Appellant, JD stated that he paid rent, bills and bought groceries. Records from a Century 21 Agency (Exhibit H) showed JD to be behind in his rent, which he rectified with payments of 11 June 1999 (of $280.00 plus $10.00) and 12 July 1999 ($420.00). 52 Two weeks later, JD spoke to a solicitor, Ms Hopkinson, who had carriage of JD's worker's compensation claim with respect to a thumb injury. He told her what had happened to him when he was younger and about the tape recording (T164.30). Ms Hopkinson referred JD to the police, to whom he spoke and handed the tape recording, on 19 July 1999. 53 After taking a formal statement from JD which took several days due to its length, police approached his brother BD, who declined to make a statement. Some years later, BD was subpoenaed to court on 25 March 2002, and, on that occasion, he spoke to police. On 25 March 2002, the Appellant was standing trial with respect to alleged offences committed against JD and his brother ID. As a result of BD giving a statement to police and there being fresh evidence and allegations available, that trial was vacated. 54 On 30 August 2000, the Appellant was arrested. When asked by the police "Did he [JD] tape a conversation between you two?", the Appellant said, "Yes, he came to one of my jobs, he used a knife to make me say things, he was really crazy, he gave me some tape or something, it was the wrong one …" (T233.54, 10 June 2004). The Appellant also told police that he gave JD the sum of $2,000.00 for rent which he got from his father's bank account (T233.35). The Appellant had exactly the same name as his father. His father's Commonwealth Bank records (Exhibit K; T246, 10 June 2004) indicated that an amount of $1,760.00 was withdrawn on 4 June 1999.

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The Defence Case 55 The Appellant gave evidence at the first trial. He denied anything of a sexual nature took place between himself and JD and BD at any time whilst they were under 18 years of age. He acknowledged a sexual relationship with BD when BD was aged between 18 and 21 years old, at which time he said BD met his fiancé. He also acknowledged having sex with JD, but only when JD was an adult. 56 It was the Appellant's case that, as a result of telling JD about his prosecution for sexual intercourse with the other boy (BG), JD was motivated to extort money from him, threatening to accuse the Appellant of under-age sex with him if he did not pay (T429-431). The Appellant had been paying money to JD and pressure was being applied on the Appellant to pay more money to him, especially at the time when JD made the tape recording of the conversation, and when the D's family home burnt down (T204-5, 430-434, 438-440). The Appellant said that he was afraid that he may be assaulted by JD (T432). He said that he gave JD the sum of $1,750.00 from a Commonwealth Bank account when they went to the bank together, and a further $250.00 a few days later (T454-455). 57 The Appellant said that he lived in a homosexual relationship with Jose Matto from 1984 to 1989. Mr Matto gave evidence confirming this fact. In relation to the alleged offences, he said that there were security cameras, security guards and staff at the various buildings that the Appellant cleaned. Mr Matto also worked with the Appellant on a regular basis for several years and their supervisors regularly visited the premises whilst they were cleaning to check on progress on the work and to supply them with cleaning materials. 58 Mr Matto gave evidence that when he was working with the Appellant, he never saw any boys in the buildings, and he had only seen BD once when he came to the door asking for the Appellant (T580). 59 The Appellant agreed that BD had worked with him from the age of about 16-17 years, but he denied having sexual relations with him until he was 18 years old. 60 In relation to the recorded conversation with JD in 1999, the Appellant said that he felt threatened by JD for some time (he knew JD had criminal convictions) and during the recorded conversations, JD had his hand in his pocket, which caused the Appellant alarm because he thought he might be harmed if he disagreed with JD. He agreed with various incriminating propositions put forward by JD about under-age sex with the brothers to protect his own safety (T441-449). According to the Appellant, as he dropped JD off following the conversation, JD attempted to punch him through the window of the vehicle (T450). He said that JD left a threatening message on the Appellant's answering machine at home demanding money from him (Exhibit 2, T435-6). So far as the recording on the micro cassette tape was concerned, the Appellant said he gave inaccurate responses to JD because he was scared and made "him happy with my answers". He said the references to sex in the tape were at a time when they were adults, not children. On the tape, the Appellant was heard to say "[BD] was in love with me". The Appellant said that if JD thought "if I have someone of his family on his side he will act in a different way". In cross-examination, the Appellant agreed that he did not know that JD had a tape recorder. Despite having told the police that JD "used a knife to make me say things", the Appellant agreed that he never saw a weapon. 61 The Appellant said that he gave $1,760.00 from the bank account because JD threatened him. He said that JD threw the two notes (Exhibits C and D) on the back seat of his car. He read one, but not the other and kept them as souvenirs. 62 With respect to this conviction in 1989 for the offence against BG, the Appellant said that, despite being represented by a lawyer, he had pleaded guilty to the offence not because he was guilty, but because it would shorten an otherwise "long process", and he did not want to interfere with his family who were arriving in Australia. He said that a number of matters in the Agreed Facts put before the Court were untrue. One of those matters was that he had put the boy in a room with a television and a lounge. The Appellant said with respect to this, "That is impossible because that was [an] advertising company and people used to work there in the evening all night".

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The Crown Case 64 ID was born on 17 March 1969. He gave evidence that, after the family arrived in Australia, they moved around a lot. In the late 1970s, the family moved to Stanmore and he went to Stanmore Public School. In 1979, ID was in Year 4 at Stanmore Primary School (Exhibit C). 65 ID said that, one day while he was living at Stanmore Road, when he was 10 years old, he was with his brothers BD and JD, and with another boy, RM (and perhaps DB) when RM introduced him to the Appellant. RM was a few years older than the D boys. The Appellant lived very close to the D family. The Appellant was driving a blue Ford Fairlane. ID, along with his brothers BD and JD and RM, went with the Appellant to Maroubra to a car park adjacent to a toilet block. RM asked ID to go with him to the toilet. He did and the Appellant followed. In the toilet block, in the presence of RM who masturbated himself, the Appellant "unzipped himself" and placed his penis into ID's mouth and, whilst holding the boy's head, thrust backwards and forwards (T16, 1 December 2004). ID said this was the first time this happened and "it is something you don't forget" (T17, 1 December 2004). This was the first count on the indictment. 66 BD and JD gave evidence at the second trial. They recalled an occasion when they went to the beach at Maroubra. Neither of them witnessed the assault. BD thought the boy, DB, was also there and remembered playing around the rock pool. BD also gave evidence that RM came up to ID and spoke to him, as did the Appellant. However, BD thought at the time that he had successfully stopped his brother, ID, from going to the toilet with the Appellant. 67 The second count occurred at a later time. ID and JD wagged school and went around to the Appellant's unit at Stanmore. In the bedroom, whilst ID was naked, the Appellant sucked his penis and attempted to insert his fingers into his anus. According to ID, the Appellant said "Go on, it is only my fingers" and ID said "No, you can't do that". The Appellant said "Oh well, when can I fuck you, let me fuck you?" and ID said "No, you can't do that". After the Appellant finished the act of fellatio, he took a Polaroid photograph of ID naked, lying on the bed (T22-23, 1 December 2004). When ID left, the Appellant gave him and JD some money (T18-26, 1 December 2004). 68 JD gave evidence that he did not witness this assault. He did give evidence that, prior to leaving the unit, the Appellant took a photograph of himself or his brother with a Polaroid camera (T21, 6 December 2004), as well as giving them money. Both ID and JD gave evidence that when they first arrived, the Appellant said to them "my brother mustn't find out". The Crown relied upon this as an indicator of impropriety, in the Appellant's mind, surrounding the visit. 69 BD also gave evidence that, on an occasion other than Count 2, when he went to the Stanmore unit with JD, he saw ID naked on a couch with the Appellant. The Appellant told BD he was "just going to suck him off .. I'm not going to have anal sex with him". ID did not recall this occasion, nor did JD. 70 There was context evidence given by ID of other uncharged sexual contact between himself and the Appellant, including an occasion when the Appellant tried to kiss him when ID accompanied the Appellant to a cleaning job at Neutral Bay. ID referred to another occasion when he was with the Appellant at one of his cleaning jobs, and the Appellant sought to get ID into a toilet to pretend they would have sexual contact together as a lure to get another boy, DB, into the same situation. 71 Evidence was given that RM declined to make a statement to police and that DB could not be found. 72 The tape recording of the conversation between JD and the Appellant in May 1999 was admitted into evidence at the second trial (Exhibit D). The Appellant was heard to say on the tape that, on an occasion when he was driving the car, ID grabbed the Appellant's hand and put it on his (ID's) penis. On another occasion, "in the building at Neutral Bay", the Appellant put ID's pubic hair in his wallet.

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Submissions on Appeal 82 Mr Molomby SC submits that an unusual and central feature of both trials was the admission into evidence of the tape recording and transcript of the conversation in May 1999 between JD and the Appellant. Objection was taken to the tender of the recording on the basis that it was unlawfully recorded, and that its recording did not fall within any exception provided under s.5 LD Act. At the first trial, the learned trial Judge held that the recording fell within s.5(3)(b)(i) LD Act in that the recording of the conversation was "reasonably necessary for the protection of the lawful interests" of JD. A similar ruling was made at the second trial. 83 With respect to both the first and second trials, the Appellant's ground of appeal contends that the learned trial Judge erred in law in admitting evidence of the recorded conversation. Mr Molomby SC submits that it was not open to the Court to conclude that the conversation fell within s.5(3)(b)(i) LD Act, given that JD's purpose in recording the conversation was to extract admissions of sexual offences allegedly committed by the Appellant upon a number of males, including JD, many years previously. 84 The Appellant relies upon the decision of this Court in R v Le (2004) 60 NSWLR 108. Mr Molomby SC submits that JD went about to "set up" the Appellant and lure him into making alleged admissions relating to conduct concerning numerous people. About a week prior to the recording, JD had purchased a tape recorder from a Dick Smith store and had contacted the Appellant and had consensual sex with him. One week after that, JD recorded the conversation. He did so to procure admissions by the Appellant in order to take the tape to police. 85 It was the Appellant's contention that JD recorded the conversations in order to extort money from the Appellant. JD did not take the tape immediately to the police. It was handed to Senior Constable Blackmore on 19 July 1999, even though it had been recorded in about May 1999. JD did receive money from the Appellant prior to taking the tape to police, although the reasons for the Appellant giving money to JD were disputed issues at the trial. 86 Mr Molomby SC submits that the term "lawful interests" in s.5 LD Act must be judged objectively, and must be an actual lawful interest existing at the time of the conversation: Violi v Berrivale Orchards Limited (2000) 99 FCR 580 at 585-6; Amalgamated Television Services Pty Limited v Marsden [2000] NSWCA 167 at paragraphs 20-23. It was submitted that, viewed objectively, JD did not have an existing lawful interest at the time of recording the conversation with the Appellant which was reasonably necessary to protect by means of the recording. There were no court proceedings on foot. JD had not earlier approached the police with allegations of sexual assault. There was no earlier conversation with the Appellant which JD wished to corroborate. It was submitted that JD's purpose in making the recording was to create evidence. Further, Mr Molomby SC stressed that the conversation related almost entirely to other persons, and not JD. 87 Mr Molomby SC emphasised that, to fall within s.5(3)(b)(i), the recording must be reasonably necessary for the protection of the lawful interests of the principal party. The provision speaks of the "protection", and not the advancement or vindication, of the lawful interests of that party. He submitted that the use of the term "protection" qualified the provision so that it was confined to a defensive use, including a defensive use in current or possible future litigation. He submitted that this construction did not accommodate the circumstances of the present case. Here, JD recorded the conversation with the Appellant, on the findings of the trial Judge, for the purpose of gathering evidence against the Appellant with respect to past criminal conduct committed against JD and his brothers, BD and ID. Mr Molomby SC submitted that the concept of bringing the Appellant to justice by such means did not constitute a defensive or protective activity of the type caught by s.5(3)(b)(i) LD Act. 88 The Crown submits that the trial Judge was correct in finding that the recording came within s.5(3)(b)(i) LD Act. In this respect, the Crown submitted that his Honour applied the principles in R v Le as emerged, in particular, from the judgment of Adams J, with whom Hulme J agreed. The Crown submitted that the following propositions emerged from that decision, with application to this appeal:

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(d) a "lawful interest" includes JD being labelled as a liar and a fabricator of a false conversation - it was unnecessary to go so far as to require that JD demonstrate that he might be charged with making a false allegation. 89 The Crown submits that the Appellant's contention that there was no evidence from JD regarding his "lawful interests" is wrong. There was evidence before his Honour as to JD's purpose and motive in making the recording, which his Honour accepted for the purpose of the ruling on admissibility of the evidence. This evidence was directly relevant to the question of "lawful interest" under s.5(3)(b)(i) LD Act. The Crown submitted that even if, for argument sake, the recording had not produced admissions of sexual misconduct towards JD (as opposed to others), he would still have had a lawful interest at the time when the recording took place. 90 The Crown submits that the trial Judge, in fact, took an unnecessarily restrictive view, favourable to the Appellant, of what constituted JD's "lawful interest". The Crown submits that JD also had a "lawful interest" in vindicating the criminal wrongs committed upon his brothers just as, in R v Le, Ms Le had a lawful interest in protecting herself from being called a liar by Mr Ranse. 91 Insofar as the Appellant submits in this Court that the purpose of the recording was to extract admissions of under-age sexual conduct so as to blackmail the Appellant for money, the Crown points to the finding made by the trial Judge (as set in paragraph 79 above) which rejected this argument for the Appellant. The Crown points out that, during the course of the first trial, there was no application made by the Appellant to the trial Judge to revisit his earlier ruling on this point. Nor was it argued on appeal that the finding of his Honour Judge Woods QC concerning JD's purpose and motive in recording the conversation was not open to the trial Judge. 92 The Crown points to the relevance of the tape recording, noting that no submission to the contrary had been made in the District Court or in this Court. The recording that was ultimately admitted contained admissions by the Appellant that he had sex with JD and BD. The Appellant was heard to say on the tape words such as "it was wrong", "you don't think and then you just did it", "I'm sick myself and do you know why I'm sick too? Because thinking about what I did wrong …" (page 33). 93 With respect to JD, the Crown submits that the tape recording rebutted the Appellant's assertion that JD had not been to the Wilson's Fabrics Building in Waterloo (page 3). The jury was able to listen to the tape to assess the veracity of the Appellant's claim that he was afraid of JD who was allegedly blackmailing him for money and threatening to falsely accuse him of sex with under-age boys. 94 In relation to BD, the Crown submits that the Appellant was heard on the recording to admit that he had sex with BD when the latter was 14 years old (pages 4, 15-16), that "BD was in love with me", "it was wrong" (page 12), "I didn't force him or anything. I was by myself, living by myself. I was lonely. I needed company … He came, he, he was so nice to me … I didn't want to damage any boy … but he's the one who wanted to be with me … you don't plan … on purpose to do things wrong. Things happen …", "I was in love with BD. I was in love with BD". 95 Given the ruling of the trial Judge at both trials, the Crown notes that it was not necessary for his Honour to consider s.138 Evidence Act 1995. The Crown submits, however, that if the trial Judge was wrong in his construction and application of s.5 LD Act, the evidence was nonetheless admissible under s.7(2)(b) LD Act and/or s.138 Evidence Act 1995. The Crown submits that this was not a case of an unjustified "bugging" by a third party of a conversation of two persons who were both ignorant that a recording was being made. Rather, JD sought to vindicate his rights and those of others. The trial Judge found the evidence had considerable probative value and saw no unfair prejudice to the Appellant. The alleged offences were very serious and the evidence was important. 96 The Crown submits that the LD Act only prohibits the recording of a private conversation: s.5(1). It does not prohibit the use of such a recording: R v Eade (2001) 118 A Crim R 449 at 460 [58]. Since the recording was made by JD, the Crown submitted that it could be used in the course of legal proceedings: s.7(2)(b) LD Act.

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149 It is necessary to consider whether the recording was admissible under s.138 Evidence Act 1995. The findings of fact of the trial Judge concerning JD's purpose and motive in making the recording are relevant. At both trials, the contents of the recording were held to be highly probative and it was held that there was no unfair prejudice to the Appellant in the tender of the recording. The trials of the Appellant involved serious criminal charges. This was not a case where a covert recording was made by a third party of a conversation between two other parties. JD was a principal party to the recorded conversation. JD (a layman) undertook the recording of his own initiative and was not acting as an agent of the police. It was his evidence that he intended to take the recording to the police and, in due course, he did so. The evidence obtained was of high probative value and of great importance in the proceedings. If the trial Judge had come to exercise the s.138 discretion and to have regard to the factors in s.138(3) of the Act, then, given his Honour's findings of fact, the Crown would have demonstrated that the recording ought be admitted under s.138. In my view, such a conclusion would have been reached even after full weight was given to the statutory purpose underlying s.5 LD Act. The trial Judge would have been satisfied that the desirability of admitting the evidence of the recording outweighed the undesirability of admitting evidence obtained in the way in which this evidence was obtained. 150 Of course, the outcome with respect to the first ground of appeal in this case ought not be treated as the necessary outcome in other cases, in the event that a recording made in contravention of s.5 LD Act is tendered and a discretionary decision must be made under s.138 Evidence Act 1995. Whether a recording made in breach of the LD Act would be admitted into evidence in other proceedings will depend upon the particular facts and circumstances of the case, and matters relevant to the exercise of discretion to admit evidence under s.138.

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g. the age of the complainant witnesses at the time of the allegations may increase the possibility of unreliability or inaccuracy in their evidence; By reason of these difficulties and other similar difficulties which might occur to you, great caution is required in the way you approach the prosecution evidence. You have a duty to consider carefully the matters to which I have referred you and the warnings which I have given you. Having done so, it is then a matter for you to determine what weight you should give to the complainant witnesses' evidence in this case, and you should only accept it if you are satisfied of its truth and accuracy." 155 The written directions to the jury included the following directions concerning the need to scrutinise the evidence of Crown witnesses with care (MFI25, page 12): " Scrutinise Evidence With Care The evidence of the complainants, BD and JD, relates (on their versions), to events over two decades ago. As I have already said, I direct you that the long lapse of time makes it necessary that you should scrutinise the evidence of each of the complainants with great caution before you would accept it and act upon it. The long lapse of time involved may have distorted recollections or otherwise created unreliability in testimony. But this is not to tell you that you must or should reject the evidence of JD and/or BD. You may conclude that all of it (or the important parts of it) are consistent with other independent evidence, and that it is honest and reliable. You are the judges of the facts." 156 The learned trial Judge distributed copies of MFI25 to the jury at the commencement of his summing up on 24 June 2004. His Honour gave the jury detailed oral directions concerning lack of evidence of complaint and delay in the making of the allegations (SU, pages 11-15): "I turn to the subject of lack of evidence of complaint and delay of allegations. I have already mentioned in relation to count 1, which applies to all the counts, the problems that arise for the accused in dealing with the wide expanse of time charged in each count. The accused has argued that the absence of any complaint made by [BD] and [JD] to anyone to whom they might reasonably be expected to complain is inconsistent with the conduct of a truthful person who has been sexually assaulted. The accused says that you should therefore regard their evidence that they were sexually assaulted as false, particularly bearing in mind that the delay before the matter has been brought to the notice of the authorities is about two decades and more in some instances.

[181]

The evidence of the complainant, [ID] , and of his brothers, relates (on their versions), to events over two decades ago. As I have already said, I direct you that the long lapse of time makes it necessary that you should scrutinise the evidence of these witnesses with great caution before you would accept it and act upon it. The long lapse of time involved may have distorted recollections or otherwise created unreliability in testimony. But this is not to tell you that you must or should reject the evidence of these witnesses. You may conclude that all of it (or the important parts of it) are consistent with other independent evidence, and that it is honest and reliable. You are the judges of the facts." 161 His Honour gave the jury the following oral directions concerning delay (SU, pages 9-11): "Let me turn to the question of the delay in the bringing forward of these allegations. The accused has argued, through his counsel, that the absence of any complaint made by [ID] to anyone to whom he might reasonably been expected to complain, is inconsistent with the conduct of a truthful person who has been sexually assaulted. The accused says that you should therefore regard the evidence that he was sexually assaulted as false, particularly bearing in mind that the delay before the matter has been brought to the authorities is over two decades. That is a point which you must consider, but I must warn you that the mere absence of a complaint does not necessarily indicate that the evidence of a complainant is false. It may indicate fabrication on the part of [ID] , but it does not necessarily do so. There may be good reasons why a person who has been sexually assaulted does not complain to anyone, for example, a male person who has consented to homosexual contact as a child or young person, may when young be ashamed, or embarrassed to have it brought to public notice. On the other hand however, it is important that I give you certain warnings which reflect the long experience of the courts in cases of such as this. [His Honour here gave directions in terms of paragraphs (a) to (f) of the written directions set out at paragraph 159 above].

[206]

(g) directed the jury that it was important to give these warnings which "reflect the long experience of the courts in cases such as this" . 185 The learned trial Judge provided substantial and detailed directions at both trials in which the substance of a Longman warning was conveyed to the jury with the authority of the Court. In the circumstances of the present case, I am satisfied that a "dangerous to convict" direction was not required in either the first or second trial. 186 The fact that a "dangerous to convict" direction was given with respect to JD at the first trial (for an entirely different purpose) does not, in my opinion, affect the position. The reason for this direction would have been obvious to the jury. As the trial Judge made clear in both the written and oral directions, there were features affecting JD, including his criminal history, which called for additional circumspection with respect to his evidence. These features did not apply with respect to BD. This is not a case where a "dangerous to convict" direction was given on a Longman basis, with respect to JD but not BD. 187 I am not satisfied that error has been demonstrated with respect to the directions given at the first trial. A "dangerous to convict" direction was not required as a matter of law. In the circumstances of the case, it was not necessary for the trial Judge to give a "dangerous to convict" direction with respect to the evidence of BD. Substantial and elaborate Longman directions were given to the jury with respect to the evidence of JD and BD. 188 Likewise, I am not satisfied that error has been demonstrated with respect to the directions at the second trial. A "dangerous to convict" direction was not required as a matter of law. In the circumstances of the case, it was not necessary for the trial Judge to give a "dangerous to convict" direction with respect to the evidence of ID. His Honour gave substantial and elaborate directions concerning the effect of delay upon the jury's fact-finding process in accordance with Longman. 189 The second ground of appeal against conviction ought be rejected with respect to both the first and second trials.

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Judgment (210 paragraphs)

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Cases Cited (31)