Director of Public Prosecutions v Carr (a pseudonym)
[2023] VCC 256
•23 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SIMON CARR (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 & 7 February 2023 | |
DATE OF VERDICT: | 23 February 2023 | |
CASE MAY BE CITED AS: | DPP v Carr (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 256 | |
REASONS FOR VERDICT
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Subject:CRIMINAL LAW – CMIA Special Hearing by Judge Alone
Catchwords: Verdict; Incest step-child; sexual assault child under 16
Legislation Cited: Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016, Crimes Mental Impairment and Unfitness to be tried Act 1997; Jury Directions Act 2015; Criminal Procedure Act 2009
Judgment: Not guilty on charges 1, alternative charge 2 and charge 3
Guilty on alternative charge 4
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Paul D’Arcy | Grace Butcher The Office of Public Prosecutions |
| For the Defendant | Amit Malik | Emily Costa James Dowsley & Associates |
HER HONOUR:
1On 18 October 2022 a declaration was made pursuant to s. 14F of the Crimes Mental Impairment and Unfitness to be Tried Act, (‘the CMIA’), that SIMON Carr[1], (‘the accused’) is unfit to stand trial and is unlikely to be fit to stand trial in the next 12 months. Having made this finding a CMIA special hearing must be listed for trial within 3 months[2].
[1] A pseudonym
[2]Crimes Mental Impairment and Unfitness to be Tried Act 1997 s. 14(5) time for special hearing extended by Her Honour Judge Carlin on 18/10/22
2SIMON Carr has been charged with two counts of sexual penetration of a step child and in the alternative two charges of sexual assault of a child under 16. The Crown alleges these offences were committed against his step daughter, Sarah Weston[3] (‘the Complainant’). Sarah was eight years old at the time of the alleged offending and ten years old at the time she gave her evidence at a special hearing on 14 December 2022.
[3] A pseudonym
3The matter came before me for special hearing by judge alone under the provisions of part 11 of the CMIA temporary arrangements for special hearing by judge alone ss 91 to 101. The defence application, unopposed and supported by the prosecution, was granted on 1 February 2023.
4Pursuant to the procedures for special hearings, Mr Carr was not arraigned, rather the charges were read to him. Mr Carr is taken to have pleaded not guilty pursuant to s 95(2) of CMIA.
5The special hearing commenced on 2 February 2023. The prosecution opened the case and the defence responded. The evidence proceeded over two days on 2 February and 3 February 2023. The prosecution called three witnesses, Sarah Weston, Lea Sims[4] and Elise Wheeler[5].
[4] A pseudonym
[5] A pseudonym
6Two statements of agreed facts were tendered as exhibits E and F. Other exhibits tendered were the VARE marked for identification only as exhibit A; A diagram of body part used by the complainant at the Criminal Procedure Act (‘CPA’) special hearing dated 14/12/22 as exhibit B; the CPA special hearing was marked for identification only as exhibit C; and a copy of notes made by Elise Wheeler were tendered and marked as exhibit D.
7There was no record of interview before the court. The accused did not go into evidence. At the conclusion of the case I was addressed by counsel Mr D’Arcy for the prosecution and Mr Malik for the defence.
8Evidence of the complainant Sarah Weston was pre-recorded and presented by way of VARE and CPA special hearing. There were no difficulties with the technology employed for either hearing that impacted the receipt of evidence by the court.
9Pursuant to s. 97(2) of the CMIA my judgment must include the principles of law I have applied and the facts upon which I have relied. I am not required to recount every piece of evidence or argument which has been put before the court. I have had regard to all of the evidence led throughout the trial and the arguments raised by counsel. In particular, I have reviewed the evidence to which counsel referred in their closing addresses and have done so in light of their arguments.
10The effect of s. 101 of the CMIA and s. 4A of the Jury Directions Act 2015 is that my reasoning must be consistent with how a jury would be directed. I may make any decision that could have been made by a jury[6]. In this trial that means I can find Mr Carr not guilty of the offences charged, not guilty of the offences because of mental impairment or if I am satisfied beyond reasonable doubt on the evidence, I can find that Mr Carr committed one or more of the offences charged or an offence available as an alternative.
[6]Crimes Mental Impairment and Unfitness to be Tried Act 1997 s. 96
11The defence of mental impairment has not been pursued by the defence and I have heard no evidence that could form the basis of such a finding. I therefore put this to one side.
12The general directions of law that would have been given to a jury and that I have applied in this case are as follows;
Presumption of innocence and the onus and standard of proof
13Mr Carr is presumed innocent unless and until guilt is proved on evidence presented to the court. The prosecution have the onus of proof.
14The guilt of Mr Carr must be established beyond reasonable doubt on each element of an offence charged. This is the highest standard of proof that our law demands. It is not enough for the prosecution to prove that the accused is probably guilty, or very likely to be guilty. That would be enough in a civil case where matters only need to be proved on the balance of probability. That is, they need to be shown to be more likely than not. By comparison, in a criminal trial the prosecution must prove the accused’s guilty beyond reasonable doubt. If the court is not satisfied to this standard Mr Carr must be found not guilty. In deciding whether the prosecution has proved its case beyond reasonable doubt I must remember that it is almost impossible to prove anything with absolute certainty when reconstructing past events and the prosecution does not have to do so. A reasonable doubt is not an imaginary or fanciful doubt, or an unrealistic possibility.
15The burden of proof is entirely on the prosecution to establish guilt beyond reasonable doubt. Mr Carr bears no onus of proof. It is not for Mr Carr to prove his innocence or prove anything at all.
Decision to be based solely on the evidence
16I must decide the case only on the admissible evidence led in this special hearing. In this case such evidence takes the form of witness testimony and the exhibits that have been tendered. I have not been required to conduct any pre-trial proceedings or rulings as to evidence. I have however, decided the application made by the defence for a judge alone special hearing. I have not had regard to any information in that application in my determination of this trial. In addition, I have not done any outside research or had regard to any outside sources of information.
Separate consideration
17As this case involves four separate charges from two separate incidents, I must give separate consideration to each charge and the evidence which relates to it.
S. 41 Direction on the accused’s failure to give evidence
18SIMON Carr did not give evidence in this case. That is his right as it is for the prosecution to prove its case beyond reasonable doubt. Mr Carr is not required to call any witnesses or give evidence. The onus of proving his guilt always remains on the prosecution. This means that the fact that Mr Carr did not give evidence cannot be used as evidence against him. It is not evidence in the case. It is not an admission and cannot be used to fill gaps in the evidence led by the prosecution. It does not add to or strengthen the prosecution case in anyway. It proves nothing at all. I have not speculated about what evidence Mr Carr may have given.
Elements
19As I have said, the prosecution case relates to two separate allegations. Charges 1 and 2 are alleged to have occurred between 1 August and 26 August 2020 and charges 3 and 4 are alleged to have occurred on 27 August 2020. Charges 1 and 3 are charges of sexual penetration of a step child. Charges 2 and 4 are alternative charges of sexual assault of a child under 16. If I am not satisfied beyond reasonable doubt of charges 1 and 3, I must go on to consider if I am satisfied beyond reasonable doubt of charges 2 and 4.
20To prove each charge of sexual penetration of a step child the prosecution must prove the following three elements beyond reasonable doubt for each occasion;
(a) SIMON Carr intentionally sexually penetrated Sarah Weston.
(b) Sarah Weston is a child of SIMON Carr’s spouse.
(c) SIMON Carr knew that Sarah Weston was a child of his spouse.
21In the alternative, to prove each charge of sexual assault of a child under 16 the prosecution must prove the following four elements beyond reasonable doubt for each occasion;
(a) SIMON Carr intentionally touched Sarah Weston.
(b) Sarah Weston was under the age of 16 years.
(c) The touching was sexual.
(d) The touching was contrary to community standards of acceptable conduct.
22With regard to the particular facts of this case for the prosecution to prove charges 1 and 3 beyond reasonable doubt they must prove that SIMON Carr introduced his fingers to any extent into Sarah Weston’s vagina. Mr Carr’s finger does not need to have gone all the way into Sarah’s vagina. The prosecution can succeed by proving penetration to any extent. Even slight penetration is enough. There must have been actual penetration. Mere touching by the fingers to the outer surface of the external lips of the vagina is not enough. The law says that the vagina includes the external genitalia that is the outer or external lips of the vagina. So the prosecution can prove this element by proving that Mr Carr introduced his finger to any extent between the outer lips of Sarah’s vagina.
23Alternatively, to prove charges 2 and 4 the prosecution must prove beyond reasonable doubt that SIMON Carr sexually touched Sarah Weston, in this case it is alleged the touching was sexual because of the area of Sarah’s body that was touched, that is, her vagina. The prosecution must also prove that the alleged touching was contrary to community standards and to do so they rely on the surrounding circumstances, that is Sarah’s age, Mr Carr’s intent and the area of Sarah’s body that was touched.
24The real issues identified by the defence in this trial are twofold. First, whether I can be satisfied beyond reasonable doubt that there were two separate incidents of abuse; Second, whether I can be satisfied beyond reasonable doubt that Mr Carr intentionally penetrated Sarah’s vagina with his finger on two separate occasions or at all.
25Mr Malik, on behalf of his client, conceded that it was open to me to find that Mr Carr had committed charge four, that is one occasion of sexual touching on 27 August 2020. In these circumstances and given the issues in this trial, elements three and four, that is whether the touching was sexual and whether the touching was contrary to community standards of acceptable conduct are not in dispute.
26The evidence of Sarah Weston is critical to the prosecution case against Mr Carr. As Mr D’Arcy stated in his closing address, “the case is essentially the complainant. It’s very much a one witness case…”.[7] In these circumstances I must scrutinise the evidence of Sarah Weston carefully.
[7]p.72 Transcript CMIA special hearing
27Give the importance of Sarah’s evidence it is appropriate to refer to the following directions at this stage.
Assessment of witnesses
28I must assess both the honesty and reliability of the witnesses. That is whether a witness was truthful and whether they correctly recalled the facts about which they gave evidence. In that assessment I may accept all, some or none of a witness’s evidence. I must bear in mind that I should not make any assessment only on the basis of how a witness gave evidence, as giving evidence can be a stressful experience. I remind myself that witnesses come from different backgrounds and have different abilities. There are too many variables to make the manner in which a witness gave evidence the only or even the most important factor in my assessment.
Child witnesses
29In considering the evidence of Sarah Weston who was aged eight and ten, I have been mindful of the following factors; First, children can accurately remember and report past events; Second, the language and mental skills of children develop as they get older. This may affect whether a child can give a detailed or complete account and whether their accounts correctly record the order in which different events occurred; Third, children’s language and mental skills also affect how they understand and respond to questions.
Intermediary direction
30As a result of Sarah’s young age her language skills are not as developed as those of many other witnesses. Given the potential for communication difficulties Veronica Mitchell, who is an independent person, was appointed as an intermediary to help the parties question Sarah. Ms Mitchell’s role was to ensure that Sarah was questioned using language that she could understand. Giving evidence in court can be stressful, especially for a child. At a ground rules hearing there was a discussion about how Sarah would be asked questions. This was to ensure the questions were formulated in such a way that Sarah could understand what was being asked of her.
31I have taken into account that adjustments were necessary to ensure that Sarah was able to understand and answer the questions without being overwhelmed by complex language or other stressors and pressures that might affect her evidence.
32I also take into account that the cross-examination conducted by Mr Malik at the CPA special hearing did not proceed in the same robust manner as it would have for an adult witness. The form, tone and content of the questions was adapted to accommodate the age and understanding of Sarah. I have not formed the view as a result of the modified cross examination that the allegations are any less challenged. I have not allowed the different process of questioning of Sarah to distract me from the issues in the case and the need to assess her evidence.
Background and undisputed facts
33The following facts are not contested;
(a) Lea Sims gave birth to her daughter Sarah Weston, in September 2011.
(b) In August 2020 Sarah was 8 years old.
(c) Ms Sims married SIMON Carr in March of 2017.
(d) SIMON Carr is the step father of Sarah Weston.
(e) In October 2018, Ms Sims gave birth to a son, Alexander[8] who was fathered by Mr Carr.
(f) Mr Carr, Ms Sims, Sarah and Alexander lived together as a family.
(g) At the time of the alleged incidents Mr Carr was not working.
(h) As at August 2020 Mr Carr cared for Sarah on Thursdays and Fridays while Sarah’s mother was at work.
(i) On 26 August 2020, Sarah made a generalised complaint to her after school care teacher, Elise Wheeler, that Mr Carr had put his finger in her vagina.
(j) Sarah was interviewed by the police 27 August 2020 and on this day, Mr Carr sexually offended against Sarah by touching her vagina.
[8] A pseudonym
Sarah’s evidence
34Broadly summarised Sarah alleges that on the day of her VARE statement at 1.30 she was sleeping in the family bedroom and that her mother woke her and she started playing on the iPhone. Before anything happened her mother went to work and her stepdad came into the room with her stepbrother. Her stepdad put her stepbrother on the bed and then he put his finger in her rude part. Sarah told him to stop but he didn’t stop. So she told him to stop louder and then he stopped and asked her if she wanted more. Sarah said “No”.
35After he had put his finger in her rude part she ran to the living room and was on the couch. Her stepdad followed her and did the same thing again, that is he touched her rude part again. On four occasions Sarah says that her stepdad touched her rude part when she was on the couch. Sarah also described that it felt weird and disgusting. She said there was no conversation. After the touching on the couch, Sarah said she ran to her bedroom and her stepdad followed her and did it again. She then ran into the backyard and hid.
36Sarah was asked four times during the VARE whether this had happened more than once. In answer to the first question, Sarah said it had happened more than once but that she could not remember the first time it happened. The next time Sarah was asked if she could remember what had happened any of the other times she replied “No”.
37At this point Sarah was asked about whether she had told anyone. Sarah said she had told her school friend and her after school care teacher that “my stepdad touches my rude part”.
38The police officer explained to Sarah that she must have told the after school care teacher about a different time and asked Sarah to tell her about that time. Sarah answered by talking about what happened at after school care. The police officer asked Sarah whether she could remember what happened on other occasions another two times. Each time Sarah said she could not remember. There was a short break in the VARE.
39When the VARE resumed Sarah was asked to describe the very very first time. Sarah then went on to describe the following; We were sleeping. My mum woke up first and then she woke me up then my stepdad woke up. Mum gave me her other phone and then she kissed us and left. My stepdad touched my rude part. It was 8.40 in the morning. He woke up, he went downstairs he came back up and put my brother on the other side of the bed then he came next to me and started to touch my rude part. I said stop, he didn’t listen I said stop louder and then he listened and then I ran to the living room.
40Sarah then said he was wearing clothes that you go out to the shops in a dark purple shirt and black pants. Sarah said she had dark blue pyjamas on with white owls and underwear. She also said there was no conversation. Sarah described that her stepdad his iPhone in his right hand and was touched her with his left hand. At the request of the police officer she lay on the floor and demonstrated what had occurred and where both her stepdad and step brother were on the bed.
41The questioning then returned to the topic of the last time it happened. Sarah said that she was wearing dark blue pyjamas with owls on them. She also had on her singlet and underwear. Sarah said her stepdad was wearing a dark purple shirt and long black pants. She confirmed he was wearing the same clothes on the first and last time. Again Sarah was asked to demonstrate what happened and she did so by laying on the floor, she then described what had occurred and where both her stepdad and step brother were on the bed. Sarah confirmed that her stepdad had used his left hand to touch her private parts and with his right hand he was watching on his phone.
42Consistently throughout her VARE evidence when Sarah was asked to describe what her stepdad did at times she said ‘he put his finger in her rude part’ and at other times she described that he ‘touched her rude part’ or ‘started to touch her rude part’.
43Sarah was cross examined and re-examined at a CPA special hearing where she had the use of an intermediary. Mr Malik questioned Sarah in a modified manner in line with a ground rules hearing that had occurred prior to the CPA special hearing.
44In relation to the topic about where Mr Carr had touched Sarah and whether penetration had occurred. Mr Malik asked Sarah to watch the parts of her VARE recording where she had demonstrated Mr Carr touching her. Sarah confirmed on each occasion that she was showing the police where Mr Carr touched her and not how he touched her. Mr Malik then asked Sarah the following;
Okay. Sarah, when [SIMON] touched your rude part, did it really go inside your rude part? - - - It was, like, in the middle.
What do you mean by in the middle? - - - It was, like, kinda in the inside and a bit on the outside too.
If you need the diagrams, that’s okay. But my question to you is are you sure that his finger went inside your rude part or is that something you could be wrong about? - - - I think it’s something I could be wrong about.
45In re-examination Sarah was asked the following
You used that picture to show where [SIMON’s] finger went when he touched you, and you said, ‘Kind of inside a bit. On the outside too’. And which bit do you think was kind of on the inside? - - - It was, like – I don’t know how to explain it.
Will it help if you look at the picture again, or have a moment to think about your answer? - - - It was, like around here.
Okay and do you have a word for that part you’re pointing to? - - No.
Okay. And when you say inside, what could you feel? - - - I felt, like, really– a really crusty finger.
Okay. And when you said, ‘I think it’s something I could be wrong about’, which bit do you think could be wrong about the inside or outside bit? - - - I forgot.
Okay. Do you want a moment to think it through? Okay. Excuse me. Yes. I’m going to read – my notes might not be exactly the words, but I’m going to read what my notes say. Mr Malik asked, ‘Did his finger really go inside’? And you said, ‘Kind of inside, and a bit on the outside too’. And then Mr Malik asked, ‘could you be wrong about that’? And my notes say, ‘I think it’s something I could be wrong about’ So I’m asking which bit do you think you could be wrong about; kind of inside, kind of outside, or something else? - - - I think it was the kind of – the kind of outside.
You think that bit might be wrong, or that bit might right? - - - I think it might be wrong.
46Also during cross-examination Mr Malik asked Sarah if SIMON had really touched her on her rude part when she was lying on the couch. Sarah responded by saying ‘No, that was a mistake.’ When asked by Mr Malik if SIMON had come into her bedroom when she was laying on her bed, Sarah said ‘No.’
47Sarah was also asked ‘Other than the time, was there anything different between the first time he touched you on your rude part and the last time he touched you on your rude part when you were in the family bedroom’? Sarah responded ‘It was the same’.
Other evidence
48The other evidence in this case came from Sarah’s mother Ms Sims and the after school care teacher, Elise Wheeler. Ms Sims gave background and complaint evidence that was largely unchallenged. Elise Wheeler gave complaint evidence, her evidence was also unchallenged.
49Two statements of agreed fact were tendered and marked exhibits E and F. I accept the contents of each of these documents.
Complaint
50On 26 August 2020 Sarah said she told a child care worker, Elise Wheeler, at after school care that her ‘step father had touched her rude part’, the contemporaneous note made by Ms Wheeler reads that “she told me that my step-dad put his finger in my rude-part, he comes in my bedroom”. Sarah also told her mother that SIMON had touched her on her rude part when her mother got home on the afternoon of 27 August. Sarah’s mother says Sarah told her SIMON put his hand in her vagina, when they were in the car after Sarah was picked up from after school care.
51I am satisfied that Sarah complained to her school friend, her after school care teacher, Elise Wheeler, and her mother. However, the complaint made by Sarah was not detailed. Sarah did not say when, where or how her stepdad had touched her with any clarity. In these circumstances I do not intend to use Sarah’s complaint as evidence in the case. I do however, consider that the fact Sarah complained adds to her credibility. The fact Sarah made the complaint, and to some extent the content of that complaint, shows that she has been consistent in her account.
Prior inconsistent statements
52In her VARE Sarah gave evidence that Mr Carr had touched her rude part when she was on the couch in the living room just after she left the family bedroom. Sarah repeated this on four separate occasions in her evidence. She described that it felt weird and disgusting. Her evidence in this regard appeared believable, detailed and convincing. In the absence of evidence to the contrary it may well have satisfied me beyond reasonable doubt that an offence had occurred. In addition, Sarah said she ran to her bedroom and Mr Carr touched her again on her rude part when she was in her bedroom. Her account in relation to this incident was less detailed.
53At the CPA special hearing when Mr Malik asked Sarah whether SIMON really touched her on her rude part when she was on the couch she said ‘No, that it was a mistake’. When Mr Malik asked if SIMON had come into her bedroom when she was laying on her bed she answered ‘No’.
54Sarah has given two different accounts in relation to what took place on the couch in the living room and what took place in her bedroom. I accept that Sarah has changed her evidence and has therefore made two prior inconsistent statements. As I have mentioned her evidence on the VARE was detailed and believable and in the absence of cross examination Mr Carr could well have been found guilty for these two significant allegations.
55In the circumstances this change in evidence causes me to have grave doubts as to the reliability of Sarah’s evidence in general and as a result I am less willing to accept Sarah’s evidence in court on other matters. I have kept in mind the fact that a witness who gives inconsistent accounts is not necessarily lying. Dishonest witnesses are more likely to introduce inconsistencies in their stories, truthful witnesses may make mistakes about details.
Differences in complainant’s account s54D of the Jury Directions Act[9]
[9]Jury Directions Act 2015 (Vic) s 54D.
56In this case the parties agree these differences occurred. I may use a difference in Sarah's account when I am assessing her credibility and reliability. When I am assessing her evidence I must bear in mind that experience shows that:
· People may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time;
· Trauma may affect different people differently, including by affecting how they recall events;
· It is common for there to be differences in accounts of a sexual offence. For example, people may describe a sexual offence differently at different times, to different people or in different contexts; and
· Both truthful and untruthful accounts of a sexual offence may contain differences.
It is up to me to decide whether or not the differences in Sarah’s account are important when assessing her credibility and reliability. It is up to me to decide whether I believe all, some or none of her evidence.
Can I be satisfied beyond reasonable doubt that charges 1 and 2 occurred?
57In order to answer this question I have reviewed Sarah’s evidence in the VARE recording and the special hearing. Dealing with the VARE first in my view it is telling that Sarah describes the last incident that gives rise to charges 3 and 4 first. Her evidence in this regard is detailed. The interviewer revisits the facts on numerous occasions and for the most part Sarah remains consistent. Sarah describes three separate allegations of abuse, the first in the family bedroom, the second in the living room on the couch and lastly in her bedroom.
58The interviewer asks Sarah whether this happened more than once and Sarah says it did but that she can’t remember when the first time was. The interviewer than asks Sarah another three times if she can remember any of the other times. Sarah consistently says she cannot remember any other time.
59After a short break the interviewer asks Sarah about the very very first time. Sarah does not give a lot of detail about the incident said to give rise to charges 1 and 2. However, the detail she does give is almost identical to her evidence in relation to charges 3 and 4. The lead up to the offending is the same, her mother wakes her she plays on the iPhone; her mother leaves for work; her stepdad comes in; he puts her step brother on the bed; he has the same clothes; she has the same pyjamas; he has an iPhone in his right hand; he touches her with his left hand; he touches her under her underwear; she can’t see his iPhone screen; there is no conversation except she tells him to stop and he does not stop so she tells him to stop louder; the demonstration she performs on the floor for each is again almost identical.
60There appear to be two differences between the incidents, the first is the time of day, 1.30 for one and 8.40am for the other. The other difference is that on one occasion her stepdad was downstairs. On closer analysis these may not actually be differences given the surrounding circumstances.
61Sarah gives limited evidence and limited detail in relation to charges 1 and 2. The detail she does give is almost identical to that given for the other incident. I cannot be certain she is describing a separate incident or just repeating what she says happened on 27 August 2020. In my view her evidence is improbably similar.
62This occurred in the context that, prior to Sarah giving any detail about charges 1 and 2 she is asked four times whether she can remember another time and she consistently says ‘No’. In circumstances where the interviewer reminds her that she complained the day before and asks her to describe this incident, Sarah describes the complaint. When Sarah does speak about the incident subject of charges 1 and 2 it is after a break and after she is asked to describe the very very first time. It is unclear to me whether Sarah is describing another occasion or whether she is describing the first of the three incidents that she said occurred on 27 August 2020, the day of her interview.
63The fact that Sarah complained on 26 August 2020 does not assist me to find either charge 1 or 2 proven. Sarah’s complaint was very general in nature and she did not say when the sexual act she complained about occurred. Although the complaint evidence may raise a suspicion about other offending, it does not prove that other offending actually took place.
64For these reasons I am not satisfied beyond reasonable doubt in relation to charge 1 or charge 2.
Can I be satisfied beyond reasonable doubt that SIMON Carr intentionally sexually penetrated Sarah Weston on 27 August 2020?
65In her evidence about the incident on 27 August 2020 Sarah uses the phrases ‘he put his finger in my rude part’ or ‘he touched my rude part’ or ‘he started to touch my rude part’ interchangeably. Ms Wheeler and Ms Sims who gave complaint evidence said that Sarah told them Mr Carr had put his finger in her rude part. Sarah’s evidence was that she had told her after school care teacher that Mr Carr had touched her rude part.
66Although Sarah used a diagram which depicts the internal parts of a vagina she said she was showing where she was touched on the vagina. At no time in her evidence does Sarah actually clarify what she means by ‘in my rude part’ nor does she say that Mr Carr’s finger went between the lips of her vagina.
67At the special hearing when she is asked if she could be mistaken that SIMON’s finger went inside her rude part she confirms it is something she could be mistaken about. Sarah was re-examined about this point. In my view re-examination did not clarify the issue. The puttage in re-examination was slightly but importantly inaccurate in a number of respects and it did not fairly clarify Sarah’s answer that she could be mistaken as to whether SIMON’s finger went inside her rude part.
68In circumstances where Sarah has recanted other allegations, that has called into question her reliability, I am not satisfied beyond reasonable doubt, on the state of the evidence that Mr Carr’s finger penetrated to any extent the outer lips of Sarah Weston’s vagina.
69I now turn to charge 4. First and foremost I note that there is no dispute by the defence that on 27 August 2020 that Mr Carr sexually offended against Sarah by touching her vagina. Sarah’s evidence is detailed and cogent. She gives a consistent and coherent account of Mr Carr touching her rude part and describes her rude part as her vagina. In all the circumstances and in reliance on this evidence I am satisfied beyond reasonable doubt that SIMON Carr sexually touched Sarah Weston.
Conclusion
70I have considered all the evidence in this case and I have considered the arguments of counsel. I have applied all necessary directions including those requested by prosecution and defence. In addition, I have directed myself in accordance with s. 45D. I have had particular regard to the high burden of proof required to be satisfied by the crown of beyond reasonable doubt.
71On my assessment Sarah Weston presented as an honest witness who on the face of it was clear in her account of what she alleged occurred. However, as a result of the findings I have made on the evidence I have real concerns as to the reliability of some aspects of Sarah’s evidence. This is not a positive finding that I disbelieve Sarah but rather I have applied as carefully as I can the burden and standard of proof in assessing the evidence whilst having regard to the relevant jury directions.
72For the reasons I have stated I therefore find SIMON Carr –
· Not guilty in relation to charge 1 incest of a step child.
· Not guilty of the alternative charge 2 sexual assault of a child under 16.
· Not guilty in relation to charge 3 incest of a step child.
· And guilty of charge 4 sexual assault of a child under 16.
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