R v H, Ma - [2011] SADC 97

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v H, MA
Criminal Trial by Judge Alone
[2011] SADC 97
Reasons for the Verdict of His Honour Judge Boylan
7 July 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused charged with four counts of unlawful sexual intercourse - no recent complaint - a number of uncharged sexual acts - the complainant made the allegations some 10 years after the last alleged offence - plea of not guilty - trial by Judge alone - warning about forensic disadvantage - lack of specificity with respect to one of the counts.
Held: Verdicts of guilty on Counts 2, 3 and 4 and Verdict of Not Guilty on Count 1.

R v H, MA
[2011] SADC 97

MAH is charged with four counts of unlawful sexual intercourse. The prosecution alleges that he committed those offences, together with other sexual offences which are not the subject of charges, against LH some 12-13 years ago. He pleaded not guilty to the charges and, at his election, I heard the trial without a jury. I now give my reasons for the verdicts which I am about to deliver.
Outline of the Prosecution Case
LH was just 12 when the accused married her sister S. LH was then living with her mother and stepfather, M and R, C. S and the accused lived nearby and he was a regular visitor at the C family house. He worked in his family’s plumbing business.
LH alleges that, early in 1998, the accused began waiting for her after school. He would prevail upon her to get into his vehicle where he would touch her breasts and make her suck his penis. Eventually, he began having vaginal sexual intercourse with her at her mother’s and stepfather’s house. He continued to have sexual intercourse with her for some years, the last occasion of intercourse having occurred in a shed at his house on LH’s sixteenth birthday.
LH’s mother had been suspicious for some years about LH’s behaviour and confronted her about it just before LH turned seventeen. Pressed by her mother, LH admitted to sexual conduct with the accused and, at her mother’s insistence, made a report to the police. But, at that time, LH wanted no action taken. Years later, in 2010, she again spoke to the police and detectives interviewed the accused on the 4 June 2010. He denied that he had ever had any sexual contact with LH.
Warning About Forensic Disadvantage to the Accused
The prosecution case depends almost completely upon the evidence of LH. There is little independent support for her allegations. Moreover, as I have said, she delayed for some 12 years before making a full complaint and another year has now passed between the time of the complaint and trial. Accordingly, I have directed myself as follows.
(i)The prosecution case stands almost completely upon her evidence alone.
(ii)Owing to the lapse of time, the accused has not been able to test her account in detail.
(iii)Human memory is frail and is liable to distortion as time passes.
(iv)There is a danger of distortion of memory of events which occurred in the past, and where the recollection is from early teenage years.
(v)The failure to make a prompt complaint and the delay in complaining may in themselves cast doubt upon the reliability of LH’s evidence.
(vi)The delay has forensically disadvantaged the accused in a number of ways. He cannot now be expected to remember relevant times and occasions as he would have been able to do had there been a prompt complaint. Had there been a prompt complaint, he would have been in a position to remember where he was and with whom and so may have been able to produce evidence to refute the allegations. For example, he may have had access to his employment records. The delay has meant that medical or scientific investigations such as DNA testing of LHs’ underwear cannot be undertaken. The accused has lost the opportunity to interview potential witnesses. I have taken those disadvantages into account in considering whether or not the prosecution has proved its case beyond reasonable doubt.
Owing to the fact that the prosecution case depends almost solely upon the evidence of LH, who is giving an account of events she says happened some 13 years ago and owing to the delay with the consequent disadvantages to which I have referred, I have scrutinised LHs’ evidence with great care and I have, throughout my consideration of the evidence, borne in mind that the accused is forensically disadvantaged. I have directed myself that I should not convict the accused unless I am completely satisfied of LHs’ truthfulness and accuracy. I make it clear that I have borne in mind that direction when considering the whole of LHs’ evidence in relation to the charged counts and the uncharged acts.
There are a number of other directions which I have given myself, some of them standard and some particular to the case. I deal now with the standard directions and, later in these reasons, with some particular directions.
The accused is presumed innocent unless and until his guilt has been proved. The burden of proving each of the charges lies wholly on the prosecution. The accused is not obliged to prove anything. He has put forward a defence, but he does not have to prove it. The Crown must disprove it beyond reasonable doubt.
Nothing short of proof beyond reasonable doubt will do. It is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. I am not to reach a conclusion of guilt by preferring the evidence of the complainant to that of the accused. I must be satisfied, before I could convict the accused of any particular count, that the prosecution has proved beyond reasonable doubt each of the elements of that count.
There are four counts on the Information. Each of them charges a separate offence and each must be treated separately upon its merits. Should I be satisfied of the guilt of the accused on any particular count, it would not follow that he is guilty of any or all of the others. I must take special care to ensure that the method by which the guilt of the accused on any one count may be established is by considering only the evidence offered in relation to that count.
If I am not satisfied beyond reasonable doubt that the complainant is truthful and reliable with respect to one or more counts then I must consider whether I can be satisfied of the guilt of the accused on any remaining counts. I remind myself that, if I am not satisfied about the credibility and reliability of LH when considering any one count and the other counts depend upon the uncorroborated evidence of LH, then that lack of satisfaction may carry over to my consideration of the other charges. Accordingly, if I am not prepared to accept her evidence with respect to any particular matter or count, I must take that fact into account in determining whether I am prepared to accept her evidence on other matters or counts.
I direct myself about the elements of each of the offences. In the case of each of the four offences the prosecution must prove beyond reasonable doubt that sexual intercourse occurred, namely, that there was some degree of penetration by the accused’s penis of LHs’ vagina. The prosecution must also prove beyond reasonable doubt that she was under 17 years at the relevant time. I do not stay to elaborate upon the elements of the offences because, if I am satisfied beyond reasonable doubt that the conduct alleged against the accused occurred, then the elements of each of those offences will have been made out.
Undisputed Facts
LH was born on 2 September 1984 and was 13 when she began high school in l998. Then, and at all relevant times, she lived in the C house at Salisbury North.
Lh was the third of Mrs C’s three children by her first marriage. The other two are S, nine years older than LH, and J who is some seven years older than LH. M and R, C also have a son, R, who was born in November 1997 and was a small boy at the time of these alleged offences.
Mrs C worked as a full time carer for two foster children, M and F, who also lived in the C house.
S left home when she married the accused in 1996. J left home in late 1997 or early 1998, soon after R’s birth.
Mr C worked on day shift at Holden’s and, on work days, arrived home between 3.30 p.m. and 4.00 p.m.
The Cs had a practice of holding family celebrations at the house where the accused lived with his wife, S. Their house was considered “neutral ground” for occasions attended by Mr and Mrs C and Mrs C’s first husband – LH’s father – and his new partner.
The evidence of LH
LH gave evidence that the accused was like a brother to her until the beginning of her first year in high school, 1998, when their relationship changed.
In that year, she would finish the school day at about 3.00 p.m. and then catch a bus to the stop nearest to her home. The trip took about 20 minutes. Opposite the bus stop was a car park adjacent to a soccer oval. Usually, she would walk across the soccer oval on the short walk home. She would be at home alone from about 3.30 p.m. until her mother arrived half an hour to an hour later after picking up her foster brothers.
In the first part of Year 8, the accused began waiting for LH in his white utility motor vehicle at the car park next to the soccer oval. He prevailed upon her to get into the vehicle, threatening to tell her sister S that LH had “cracked onto him” if she did not get in. After he had picked her up in this way a couple of times, sexual activity began. He would touch her on the breast and then force her to suck his penis during the drive home. He picked her up once or twice a week and oral intercourse occurred many times.
LH then went on to give evidence about the four charged counts. The first of them is an incident said to have occurred in the family’s lounge room.
Count 1
She said that the incident occurred after school, at about 3.30 p.m. as soon as she got home. She was sitting in the lounge watching television with the accused sitting next to her. He began groping her on the breast and vaginal area outside her clothing. He then knelt in front of her, grabbed her arms so that she could not move and, with his other arm, pulled down her underwear. He prised her legs open, pulled his pants down to his knees and inserted his penis into her vagina. She said that that act of sexual intercourse occurred just before or after Easter in the early part of the school year in 1998.
The Information alleges that Count 1 occurred between 1 January 1998 and 1 June 1998. Given the amount of time that has passed since the alleged offence, it is hardly surprising that LH is unable to be precise about dates. Specificity about a date in a matter such as this often does not matter, but in this case there is a problem. To explain the problem, I set out a short section of the transcript.
A.… There were a few incidents that I would be watching TV and he would be sitting next to me on the lounge and he would grope me on my breast and vagina on top of my clothing and then he would hold me – get on his knees in front of me and hold me with his hand and with his other hand prise my legs open.
Q.I am going to ask you about the specific incident you have complained about, the incident in the lounge-room. Can you tell His Honour exactly what happened and when it was.
LH then went on to describe the event which I have set out above. The prosecutor adduced from her no evidence to specify which of the “few incidents” is said to be the subject of Count 1. That is, there was no evidence to prove that this alleged count was the first occasion of such activity in the lounge, or the last, or that it could be identified in some other way. In those circumstances, I cannot know which of a number of incidents has been described and, therefore, I could not convict the accused of Count 1.
Count 2
At about Easter 1998, after a day at school, LH was lying on her bed in her bedroom when the accused entered. He touched her breasts and vaginal area before inserting his fingers into her vagina for some time. He then had penile sexual intercourse with her, withdrawing after she felt a “warm sensation”. She then went to the bathroom and he to the lounge. Having finished in the bathroom, LH went back to her bedroom and remained there till her mother arrived home. LH was able to be specific about this count: it was the first occasion that the accused had sexual intercourse with her in her bedroom.
Count 3
Count 3 is an occasion of alleged sexual intercourse in the bathroom at the family home. LH was in the shower one morning before school. On opening the frosted glass of the screen door and getting out of the shower alcove to dry herself, she saw the accused, who was standing in the bathroom watching her. He bent her over into a leaning position and then had penile sexual intercourse with her while standing behind her.
Count 4
The last count charged is an act of sexual intercourse alleged to have occurred in a shed at the accused’s and his then wife’s house on the occasion of LHs’ sixteenth birthday party. The party was in the evening, set to begin at about 6.00 p.m. Present at the house making preparations before that time were Ms H, Mr and Mrs C, J, the accused and his then wife S, the accused’s good friend ML, and three very young children.
LH gave evidence that the party was held on the day of her birthday, 2 September 1998, and that, at that time, the accused and her sister S owned two Akita dogs. One of the dogs had to be locked up before guests arrived. LH said that she was asked to put that dog in the shed and that she did so. She was then asked to get something from the shed. She went to the shed and, while she was in there, the accused came in, pinned her up against the side of the shed, groped her breast and vagina, inserted his fingers into her vagina and then exposed his penis, prised her legs open and had sexual intercourse with her. The accused told her not to say anything because no-one would believe her and that he would tell her sister that she had “cracked onto him” and “encouraged it”. LH said that that was the last occasion on which there was any sexual activity between her and the accused.
LH made various complaints about the accused’s conduct. About a year after her sixteenth birthday, her mother asked LH if she was keeping anything from her. She said that, eventually, her mother “got it out of me that he had touched me on the top of my clothing”. Upon hearing that, her mother asked LHs’ sister J to come to the family house and there was further conversation. Mrs C then rang her daughter S, the accused’s former wife, and asked her to come over. On having been told what LH had alleged, S left the house, smashing her phone in the driveway as she went out.
LH was specific about the terms of her complaint: that the accused had touched her on the top of her clothing only. Her mother insisted that the matter be reported to police and LH did so the following day, telling police that she had been “groped on several occasions down below”. In evidence, LH was clear that she had not told her mother that she and the accused had had sexual intercourse and that she did not tell the police that there had been intercourse. Her account of what she told police is consistent with the police investigation report which was tendered in evidence through the officer to whom LH made that first complaint.
She did not tell her mother or the police that sexual intercourse occurred because she was worried and scared when she made the first complaint and did not want her mother to know the full story.
LH gave evidence about her children. All three of them have been removed from her care. One now lives with LHs’ mother and the other two live with her sister S. LH explained that, owing to the abuse she suffered at the hands of the accused, she suffers from depression. On account of her mental condition consequent upon that depression the children were taken from her. She re-opened this matter and made a report to police in 2010 because she was sick of “living with it”.
LH said that, since the last occasion of sexual intercourse, she had seen the accused on a couple of occasions only, those occasions being at the house of her sister S when she attended birthday parties for her nieces who are, of course, the accused’s daughters. She could not remember seeing him on any other occasions. She denied that she had contacted him twice many years later to ask him for small amounts of money for phone credit. Those denials were made with some vehemence. When pressed, she said that she could not recall any such occasions.
Mrs C’s evidence
LH’s mother, MC gave evidence. At all the relevant times Mrs C was a carer for two foster sons, F and M who lived with her family. Each of them was disabled: F was autistic and M was Downs Syndrome. M attended a special school and was delivered home each afternoon by taxi. F went to a local primary school and Mrs C picked him up. She gave fairly detailed evidence about the times at which she was home in the afternoons. Because she had to collect F from school when he was released at 3.10 p.m., she was usually absent from the house between 2.45 p.m. and about 3.25 p.m. But her evidence was not always completely clear about times. Having said that she was usually home by 3.25 p.m., she went on to say that she would be back to meet M’s taxi which arrived between 3.45 and 4.00 p.m. Her evidence was that LH generally arrived at about 3.45 p.m. Mrs C said that the accused was at the house at various times and that he dropped LH off quite a few times.
Mrs C gave evidence about an occasion when LH was unwell and having a day off school. On that day, the accused was at Mrs C’s house at a time when she had to go to a shop. When Mrs C left the house the accused was in the kitchen and LH in the lounge. On her return a short time later neither of them was where she expected them to be and when she called out no-one answered. She put some shopping on a table and then went down the hall towards LHs’ bedroom. As she did so she saw the accused coming out of it with his pants below his penis, which was exposed. When asked what he was doing he said that he was “just going to the toilet”. He then “dived” to the toilet. When Mrs C asked LH what was going on, LH would not answer her but looked “very guilty”. Mrs C asked the accused a short time later about the incident. He said “I have got to go back to work now” and left the house. In cross-examination Mrs C was unable to say whether or not the accused’s penis was circumcised but he was moving quickly and she saw him only for three seconds. When asked whether or not the incident provided an opportunity for her to take some action, given her suspicions, Mrs C answered that she had to have proof before she could go to the police and she had only suspicions; her suspicions were not good enough and no-one would tell the truth.
Before this incident Mrs C already had suspicions about LHs’ behaviour because, on a number of occasions when doing the family laundry, Mrs C had noticed what she described as “gunk” in LHs’ underpants. As far as Mrs C was concerned, that “gunk” was evidence that LH was having sexual intercourse with someone.
Mrs C could not be sure that there was a dog at the accused’s house on the occasion of LHs’ sixteenth birthday. According to her, the accused and her daughter S had owned the Akita dogs before an American bulldog, the bulldog being the last dog that they owned.

Mrs C also gave evidence about the first occasion on which LH admitted that there had been any sexual contact between her and the accused. That conversation took place at the end of August 2001, shortly before LH turned 17. According to Mrs C, LH told her that she was actually having sexual intercourse with the accused. JH was present at the conversation and S, the accused’s former wife, arrived at the house later. Mrs C took LH to the police station but was not present with the police officer and LH when LH actually made her complaint.
I have ignored completely Mrs C’s evidence that “she wasn’t the only one he did it to”.
R C
Mr R C, LHs’ stepfather, gave evidence that he had had a relationship with the accused similar to that of a father and son.
The foster son M came home by taxi and his wife, M C, was nearly always home in time to meet the taxi. But Mr C went on to say that there were some occasions when she would go out leaving LH and the accused to deal with M.
He could not remember if there were dogs at the sixteenth birthday party.
Mr C gave evidence that when LH was in first year high school, she once said to him of the accused “I wish he wouldn’t come to the bus stop all the time and would leave me alone”. Mr C went on to say that “Normally, M would pick her up and bring her home sort of thing”. He would see the accused dropping LH off, as the accused would normally come into the house when he did so. He said that such occasions of dropping off were not frequent but “off and on”.
J H
LHs’ sister, J gave brief evidence.
She was present for some of the conversation between Mrs C and LH on the occasion when LH told her mother that the accused had been touching her, but was unable to say much about the conversation. She remembered that the accused’s former wife S arrived at the family home on that occasion and, after a discussion, “took off”, angry.
The accused’s evidence
The accused gave evidence on oath. He was not obliged to do so. In assessing his evidence and the weight to be given to it, I have approached my task in exactly the same way as I have with the other witnesses, including the defence witnesses.
The accused was about 23 at the beginning of 1998 when he is first alleged to have offended. His and S’s relationship began when they were at primary school. He visited the C’s house but he was never there alone with LH. He denied that he had ever had any sexual contact with her, that he ever saw her in the bathroom or that he ever went inside her bedroom. He denied that there was any occasion where he ran into Mrs C as he came out of LH’s bedroom with his trousers part-way down. He denied that he was ever at the C house at 7.00 or 8.00 a.m. saying that he would not be there before lunch owing to his work schedule. He denied that he had ever picked LH up from school, the soccer oval or the car-park. But he said that she had been in his motor vehicle on occasions when he had needed to go to the shops. She would remain in the car to make sure that nobody stole his tools from it.
He remembered LHs’ sixteenth birthday party but was adamant that he and S owned no dogs at that time.
He gave evidence that there had been two occasions, in about 2003 or 2004, when LH had rung him asking for money for credit for her telephone. On each occasion he attended at her house shortly after the phone call with his friend ML. On the first of those two occasions he gave her about $30 or $35. On the second occasion he bought her a card for telephone credit and delivered the receipt to her.
Leaving aside the two occasions when he lent her money for phone credit, he had only seen her on and off at her sister S’s house.
The accused suggested that LH has a motive to make false accusations against him, namely, that she is anxious to hurt her sister, or to get her children back into her own custody.
The evidence of SH
SH, the accused’s former wife, gave evidence on his behalf. I mention only a couple of aspects of it. She, too, insisted that she and her husband had no dogs at their premises on the occasion of LHs’ sixteenth birthday party.
The first S had heard of the allegations made by LH against the accused was when Detective Bedford told her about them in 2010. It was her evidence that she did not remember LHs’ allegations being made at a conversation which she, S, had with her mother and LH about a year after separating from the accused. She insisted that she had no recollection of having been told that her former husband had been having some sexual contact with LH.
The evidence of M L
ML, an employee and old friend of the accused’s, also gave evidence. He was at the sixteenth birthday celebration at which, he said, there were no dogs. He confirmed that he had been with the accused on two occasions when he attended at LHs’ house. On the first of those occasions, the accused gave “phone credit” to LH when they arrived at her house. LH said that the accused gave her $30. On the second occasion, about a fortnight later, he and the accused purchased phone credit and then they drove to LHs’ house where the accused gave her the receipt.
The credibility of the witnesses
I found LH to be a credible and reliable witness. She gave her evidence in a forthright manner. Her account of the incident in the bathroom was compelling in its detail.
LHs’ evidence that she did not want to get into the accused’s car after school is supported by her complaint to her step-father. I shall say a little more about the way I have used his evidence on that topic later.
I have considered all the evidence and all submissions of counsel including defence counsel’s submissions about LHs’ inconsistent statements. I shall mention specifically only some matters.
I am not concerned that LH was unable to be definite about whether or not the accused was circumcised nor am I troubled by the fact that she told the police that she thought he was when, in fact, he is not circumcised.
I have considered the evidence about whether or not there were dogs at the sixteenth birthday celebration. On that topic, I cannot be sure that there were dogs present. But that does not shake my confidence in the reliability of LHs’ evidence. She was adamant that the last occasion of any sexual contact between her and the accused was immediately before the birthday celebration at her then brother-in-law’s house. Even some twelve years on, I do not think that she would be mistaken about the occasion. It may well be that she is confused or mistaken about the presence of dogs on that occasion: after all, it was common for family celebrations to be held at that house.
I have carefully considered the evidence about the telephone credit. If the accused’s and Mr L’s evidence about that is correct, that fact still does not shake my faith in the credibility and reliability of LHs’ evidence about the sexual contact between her and the accused. On the issue of the phone credit, I have considered the possibility that Ms H has deliberately not told me the truth about that. Even if that were to be the case, that fact would not shake my faith in her evidence about the sexual contact alleged.
I found Mr and Mrs C and JH to be honest and generally reliable. I would not expect, after so many years, that they would be able to remember precise times and dates. Nor do I expect that they would be able to remember occasions, which must have occurred, when there were some departures from the usual afternoon routine about picking up children and being home for M’s drop-off.
I accept Mrs C’s account of the occasion when she saw the accused coming from LHs’ bedroom with his trousers partly down. Her evidence about that incident was clear and compelling. On that topic, I am satisfied, both from her evidence and that of the accused, that the plan of the house which was tendered is incorrect. The plan tendered must be a “mirror image” of the C house.
I accept Mrs C’s evidence that LH told her in about August 1999 that the accused had been touching her sexually. Her evidence on that topic is supported by LHs’ making a complaint in very similar terms to the police the following day. I have not, of course, treated that complaint as evidence of the truth of its contents. I shall return to the topic of complaint. JHs’ evidence also supports LHs’ evidence that there was such a conversation although J’s evidence is non-specific. She said that there was a conversation “regarding M and LH and some stuff that had happened between the two of them”. She, too, said that S arrived on that occasion and that there was a discussion, after which S left.
Two aspects of Mr C’s evidence in particular support LHs’ account of her being collected by the accused after school. First, Mr C said that there were occasions when the accused dropped her home after school. Secondly, his evidence about L’s saying to him that she wished the accused would leave her alone is evidence of her state of mind at the time, namely, that she did not wish to be with the accused. The evidence also tends to rebut the suggestion implicit in the accused’s evidence that LH fabricated the whole story, including the pick-ups from school, at some stage after her children had been removed from her.
The evidence of the accused
There are parts of the accused’s evidence which I cannot accept. I reject his evidence that he did not ever pick up LH from school. On that topic I prefer and accept the evidence of Land Mr C. I reject the accused’s evidence that there was no incident when Mrs C saw him leaving L’s bedroom with his trousers partway down. I reject his evidence that he was never alone with L at the C house. In my view he has lied about those matters to distance himself from any opportunity to be alone with LH.
SH’s evidence
I am very wary of the evidence of the accused’s former wife, SH, mainly because I cannot and do not accept that she has no recollection of the conversation at which she was told that her former husband had been having some sexual contact with her younger sister. That is not a conversation she would forget.
The evidence of ML
Mr L is not a truly independent witness: he is an old and good friend of the accused for whom he works. He gave evidence in a forthright manner and he may well be correct about the two occasions involving telephone credit. But, as I have said, even if his version is the correct one it does not affect my assessment of LHs’ evidence about the sexual conduct alleged.
Uncharged Acts
I am satisfied beyond reasonable doubt that there were a number of occasions of oral intercourse between the accused and LH in his car after school. I am also satisfied beyond reasonable doubt that there were a number of occasions of sexual intercourse in LHs’ bedroom and in the lounge. I have ignored the submissions of counsel about the use I am entitled to make of those uncharged acts. I have not used them as evidence of propensity. I have used the evidence of the acts of oral intercourse in the car as evidence that the accused felt a sexual attraction to LH before he began having vaginal intercourse with her at her mother’s and stepfather’s house. I have also used that evidence by way of explanation for his being confident that she would not complain about the occasions of such sexual intercourse. I have used the other occasions of non-specific uncharged sexual acts in the same ways.
Complaint
I have not used any of the evidence of the complaints made by LH to her mother and sisters in 1999, to a police officer the following day or to another police officer in 2010 as evidence of consistency of conduct or as evidence explaining how her allegations came to light.
The initial complaints to her mother of “touching” and, the next day, to the police officer are not consistent with her allegations here in court of acts of vaginal sexual intercourse. Her complaint in 2010 to police is too far removed from the events in question to be used in the ways permitted by the Evidence Act.
I have not used the evidence of LHs’ statement to her stepfather early in 1998 that she wished the accused would leave her alone as evidence of the fact that the accused was attending at school. As I have said, I have used that evidence only as evidence of her state of mind – her attitude to the accused – at about that time and as evidence which goes some way to rebut any suggestion of recent invention about her being collected from school.
Motive
While I have considered the suggested motive put to the complainant by the accused, I have directed myself that he is under no obligation to prove a motive. I reject the suggestion that LH has invented these allegations of sexual offences for the reasons suggested by the accused.
While I have rejected much of the accused’s evidence I have directed myself that that is no basis for my finding him guilty. An innocent man may well lie to avoid being wrongly convicted. I repeat: the fact that I reject much of the evidence of the accused and some of the evidence of the witnesses called by him is no basis for a conviction. The onus of proving each element of each of the charges remains always upon the prosecution.
Verdicts
I am satisfied beyond reasonable doubt that LHs’ evidence about sexual contact between her and the accused is credible and reliable. Even though the dates of the incidents the subjects of counts 2 and 3 is not necessarily clear, I am satisfied beyond reasonable doubt that the prosecution has proved that the accused had vaginal sexual intercourse with her on each of the occasions specified in counts 2, 3 and 4 and that LH was under 17 years on each of those occasions. Accordingly, I find the accused guilty of counts 2, 3 and 4.
I find him not guilty of count 1. I make that finding not because I have any doubt that such an occasion occurred but because the evidence does not sufficiently identify and separate the occasion said to be the subject of count 1 from other similar occasions of sexual intercourse in the lounge.