R v JH (a pseudonym)

[2023] NSWDC 391

District Court

New South Wales

Medium Neutral Citation:

R v JH (a pseudonym) [2023] NSWDC 391

Hearing dates:

29 August 2023

Decision date:

29 September 2023

Jurisdiction:

Criminal

Before:

Newlinds SC DCJ

Decision:

See paragraph 91(1) and (2), page 20

Catchwords:

CRIME – Special hearing – aggravated sexual assault – aggravated indecent assault

Legislation Cited:

Crimes Act 1900 (NSW) ss 66A(1), 61M(2)

Mental Health and Cognitive Impairment Forensic Provisions Act2020 ss 44, 47(1)(b), 47(3), 53(2)

Category:

Principal judgment

Parties:

Rex (Crown)
JH (Defendant)

Representation:

Counsel:
A Robertson (Crown)
J Tyler-Stott (Defendant)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Karim Criminal Defence Lawyers (Defendant)

File Number(s):

2021/283176

Publication restriction:

Pursuant to s 578A Crimes Act 1900 and s 15A Children (Criminal Proceedings) Act 1987, publication of the names of, or any matter which could identify the Complainants is prohibited.
Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 on the grounds set out in ss 8(1)(a) and 8(1)(c) of the Act, the name of the Defendant is suppressed.

JUDGMENT

Introduction

1. HIS HONOUR: The defendant, who is now aged 87, is charged with 5 sexual offences relating to his granddaughter EH between 1 June 2018 and 10 December 2019 when she was aged 7-8 years old. There are 4 counts of aggravated indecent assault under s 61M(2) of the Crimes Act 1900 and one count of sexual intercourse with a person under the age of 10 under s 66A(1) of the Crimes Act.

2. All offences are alleged to have occurred at the defendant’s home where he lived with his wife, his son, and for much of the time EH and her brother ZH. They had moved in following the defendant’s son’s marriage breakdown and lived there much of the time due to a shared custody arrangement. They lived upstairs while the defendant lived downstairs. The defendant’s wife had mobility issues and therefore she was confined to the downstairs area.

3. The offending is alleged to have occurred in EH’s upstairs bedroom when the defendant’s son and ZH were absent from the home.   

4. The Crown case is that the offending involved the defendant sucking the Complainant’s nipples, placing his penis on her genitals, engaging in penile-vaginal penetration, and ejaculating soon afterwards in a bathroom in EH’s presence. The defendant is alleged to have told EH not to tell anyone, “otherwise I’ll go to jail”.

5. On 10 May 2021, EH partially complained to her mother. On 2 July 2021 and again on 18 August 2021, the police interviewed EH. On 5 October 2021 the police arrested, interviewed and charged the defendant.

Unfitness to be tried

6. On 9 September 2022, Williams SC DCJ, after conducting an enquiry pursuant to s 44 of the Mental Health and Cognitive Impairment Forensic Provisions Act2020 determined pursuant to s 47(1)(b) of that Act that the defendant was unfit to be tried and on the balance of probabilities, would not become fit to be tried within 12 months.

7. Pursuant to s 47(3) and s 53(2) of the Act, the matter was then adjourned for a special hearing which after a series of directions hearings was conducted by me on 30 August 2023.

8. The evidence accepted by Williams SC DCJ was that the defendant has dementia, likely as a result of Alzheimer’s disease, which is highly unlikely to improve over time.

The special hearing

9. The provisions relating to special hearings are contained in ss 54-62 of the Act.

10. Section 56 of the Act deals with the procedure at a special hearing. Section 56(1) provides that “A special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings”.

11. There being no election for trial by jury, the special hearing is to proceed Judge Alone (s 56(9)) with the defendant, who is represented by counsel (s  56(3))being taken to have pleaded not guilty (s 56(5)).

Findings of fact contended for by the Crown pursuant to s 59(2) of the Act

12. The Crown contends that I ought to find the following findings of background facts beyond reasonable doubt.

13. EH was aged 7 – 8 years at the time of the allegations.

14. EH has a mother and father and also an older brother, ZH.

15. The defendant is EH’s paternal grandfather. He had, since the 1970s, lived with his wife in a single level house.

16. EH and her family lived in a nearby suburb.

17. In 2014, EH’s parents separated. They shared custody in an almost equal split.

18. In late 2017 the defendant’s son started construction of a second level at the defendant’s house.

19. In June 2018, the defendant’s son completed the additional level, which contained three bedrooms. He moved into the house and lived upstairs. When EH and ZH visited, they had their own bedrooms upstairs. There were two bathrooms upstairs, one of which was located near EH’s room.

20. The defendant and his wife continued to live downstairs. His wife was, by June 2018, legally blind. She was thereafter limited to the downstairs area.

21. The police interviewed EH twice. The first interview (“IV1”) was on Friday 2 July 2021 between 10.15 am and 11.18 am, with a duration of about 51 minutes. In this interview, EH detailed the first incident.

22. The second interview (“IV2”) was on 18 August 2021 between 2.25 pm and 3.36 pm, with a duration of about 50 minutes. In this interview, EH detailed the second incident and provided more details about the first incident.

23. None of the above matters appear controversial and I am satisfied of these matters beyond reasonable doubt.

Counts 1 and 2

24. The Crown submits that I should make these findings beyond reasonable doubt.

25. On an occasion between 1 June 2018 and 10 December 2019, EH and her brother were staying with their father at the defendant’s house. During this stay, the defendant’s son took ZH to either cricket or soccer, leaving EH home alone with her grandparents. She was upstairs in her bedroom (IV1 Q70-71).

26. EH was watching Netflix on her iPad (IV1 Q79,82-85). She was not sure what time of the day or night it was (IV1 Q80). The defendant entered the bedroom (IV1 Q72). He was wearing shorts and a t-shirt (IV1 Q86). She was wearing clothing (Q87), but she took them off and put them on the floor (IV1 Q133-140). He also took off his clothes (IV1 Q135). They were both naked (IV1 Q146), but his shirt was on (IV1 Q147), but he just pulled his pants down and sometimes she left her shirt on (IV1 Q147-151). She didn’t know whether she had her underwear on (IV1 Q152-155)

27. She was lying “flat down” on the bed facing the ceiling and the defendant was on top of her with his back to the ceiling (IV1 Q127-132). They “had sex” (IV1 Q72), that is, he sucked her nipples (Count 1) (IV1Q75, 89-92, 283-286), and put his penis on her vagina (IV1Q75) then just went up and down (Q97), his penis was just on top of her vagina and he moved up and down (IV1 Q100-101, 141) (Count 2), and then a liquid came out of his penis (IV1 Q97, 103) .

28. Before the liquid came out of his penis she doesn’t really remember if he said anything (IV1 Q108-111), but sometimes when she didn’t want to do it any longer, he said, “hang on, it’s about to come out” (IV1 Q105). When he felt it coming, he walked into the bathroom and peed it into the toilet (IV1 Q158). Sometimes she saw the liquid come out but she did not remember if she saw it on this occasion (IV1 Q159-162). The liquid was yellow and was maybe a bit thicker than normal “pee” (IV1 Q270-271.)

29. Then he went back downstairs (IV1 Q72). He said “a few times”, “Don’t tell anyone, otherwise I’ll go to jail” (IV1 Q93)(IV2 Q217-225). It ended when she said that she didn’t want to do it anymore and she thinks he said, “OK” (IV1 Q77-78). But they “did it” one more time after that (IV2Q226-230).

EH’s knowledge of sexual terminology

30. EH knew what “sex” was because the defendant told her what it was. After this she saw a video which she searched up and watched on her iPad (IV1 Q193-216). The defendant told her that another word for sex was “fucking” (IV2 Q208-210). She had heard that word before but didn’t know what it meant (IV2 Q211). She thought that the people on the video were just having normal sex, and she thought it was hurting them because they were making weird noises, but hers did not hurt (IV1 Q217-218).

31. EH was curious about the liquid that she saw coming out of the defendant’s penis, and she either asked the defendant what it was, or he just told her that it was sperm. He was usually in the bathroom when “he felt it was coming”, and she saw yellow liquid coming out. (IV2 Q121-128).

Counts 3 and 4

32. The Crown submits I should find the following beyond reasonable doubt.

33. Sometime between 1 June 2018 and 10 December 2019, EH was in her room at the defendant’s house. EH’s father had taken EH’s brother to either soccer or cricket (IV2 Q85), leaving EH at home alone with her grandparents. The defendant’s wife was downstairs (IV2 Q117-120).

34. On this occasion, EH was lying on her bed on her iPad before she went downstairs to ask the defendant to play hide and seek with her, and he went back upstairs with her (IV2 Q78-86). She was in her room lying on her bed (IV2 Q74), she was pretty sure that she climbed on top of the defendant so that his body was under hers (IV2 Q75-76). She went on top of him as she didn’t know that it was wrong, and she thought it was the right thing to do (IV2 Q77). When her body was on top of the defendant’s both her body and the defendant’s body “moved up and down”, (Count 3) which she demonstrated (at Q164, timer 00:21:40) with her forearm held horizontally but moving backwards and forwards (IV162-166)

35. At the time that she was going up and down, she may have had clothes on, sometimes she had her shirt on and sometimes her pants were around her ankles, she took off her pants as she thought it was the right thing to do and didn’t know that it was wrong (IV2 Q167-169).

36. She might have had underwear on, but she didn’t really remember, and she didn’t really like wearing them, she wore them when she went out but at home, she didn’t really wear them. (IV2 Q172-176). EH’s mother noticed that in about 2019, EH would not always wear her underpants, that she would come home from school not wearing her underpants (statement 5 July 2012 at [17]). EH’s father noticed that “a couple of years ago”, but he couldn’t remember exactly when, EH started refusing to wear underwear and returned from school without underwear on (statement 7 July 2021 [18]-[19]).

37. EH described what happened after the “going up and down”, by writing on post it notes and explaining the notes. At Q64 she wrote down the first of 6 post-it notes, “it happened whenever ZH and dad went to cricket or soccer and he try to fit his penis in me”, explaining at Q71-73 that he tried to put his penis in her vagina, “but it didn’t fit and it didn’t hurt, um he just tried to fit it in there and then it just like started lying on top of my vagina”. (Count 4).

38. At Q96-97, she wrote a note, “He tried to fit his penis in me and sometimes suck my nipples” and the interviewer noted that EH had told them that before.

39. At Q236, she wrote a note, “He tried to put his penis into me and he sucked my nipples”, and the interviewer clarified that EH meant her vagina (IV2Q237).

40. At Q280-282 the interviewer returned to what was written in the first post it note, saying, “…when we were talking before, you said that…he tried to put his penis in you ... and it didn’t fit. How did you know it didn’t fit?”, and EH answered, “because I don’t feel it go into my body and it was too big”. “He was trying to put it in there” (IV2 Q283), then at Q284 she wrote a post it note, “he was putting it in there with his hand but it did not fit”. He was trying to put in “whole thing” (IV2 Q295), and she knew because she felt it and saw it (IV2 Q296).

41. EH was thinking of telling her father but she got scared so she made up a lie like she was sick or had a nightmare (IV1 Q313). She told her mother but did not go into details in her interview apart from confirming that she spoken to her mother about pregnancy and periods (IV1 Q314-331).

42. EH’s mother details such a conversation (statement 5 July 2021 at [24]) onwards. She says that on 10 May 2021, EH spoke to her. She complained about a sore stomach.

EH:   “I’ve got a sore tummy, am I pregnant? Can you get pregnant if you don’t have your period?”

Mother:    “No, you can’t usually get pregnant if you don’t get your periods.”

EH:   “You can get pregnant if you don’t have your periods. I’ve got a sore tummy and I’ve looked it up on the internet.”

Mother:   “What makes you think you’re pregnant?”

EH:   “I was watching something inappropriate on the iPad which made me remember that Poppy licked by [sic] breasts.”

Mother:   “What happened?”

EH:   “Poppy needed a tissue for stuff coming out the end of his penis and went to the toilet. It was an accident, Poppy didn’t mean it. He’s my best friend who understands me. Don’t tell dad or anyone.”

Mother:    “When did this happen?”

EH:      “It happened when ZH and dad were at cricket or soccer.”

43. At this point EH was distressed and screaming.

44. The following evening EH was upset again. She spoke to her mother:

Mother:   “It’s okay to tell the truth about what you told me last night.”

EH:     “Am I pregnant? I had sex with Poppy, but it was an accident”

Mother:    “What happened?”

EH:      “He rubbed his penis”

Mother:   “Did it hurt?”

EH:      “I don’t think so”

Mother:   “Show me where he rubbed it”

EH pointed at her vagina.

Mother:   “How many times did this happen?”

EH:      “It happened a few times, maybe a lot.”

Mother:    “Were your pants off?”

EH:      “Yes”

Mother:   “Were Poppy’s pants off?”

EH:      “Yes and fluid came out of his penis.”

45. EH became very distressed by this point and said she did not want to talk about it again.

Arrest and interview of the defendant

46. On 5 October 2021 the police arrested the defendant at his home. They took him to a police station where they interviewed him. Throughout the interview his memory seemed to fade, and he struggled to recall answers to questions he had been asked. The defendant said, “I’m have, been having memory lapses for, for a while, while and I can be told something one minute and forget the next, but I can re, yeah, and recalling things is very difficult for me.” The police suspended the interview and contacted a support person from Justice Advocacy Support, shortly after which they concluded the interview.

The hearing before me

47. At the special hearing, the defendant was represented by Mr Tyler-Stott of counsel.

48. The Crown tendered the following material without objection:

1. The indictment

2. Fitness Hearing orders of Judge Williams SC dated 27 October 2022

3. JIRT of EH dated 2 July 2021

4. JIRT of EH dated 18 August 2021

5. JIRT of ZH dated 30 August 2021

6. JIRT of ZH dated 31 December 2021

7. Statement of EH’s mother dated 5 July 2023

8. Statement of EH’s mother dated 31 December 2021

9. Statement of EH’s father dated 7 July 2021

10. Statement of Jennifer Gearin dated 30 August 2021

11. Statement of TH dated 7 March 2023

12. Birth Certificate of EH

13. Statement of Officer in Charge DSC Wootton dated 6 October 2021

14. ERISP dated 5 October 2021

49. In addition to the various transcripts of interviews, also received into evidence without objection, were DVDs of the various interviews including, importantly, DVDs of the two interviews with EH, the first on 2 July 2021, and the second on 18 August 2021, which I will refer to respectively as the first and second interviews. I have read and considered the above material and watched the DVDs.

50. Mr Tyler-Stott in commendably frank submissions submitted that he accepted that it was highly likely that I would be satisfied beyond reasonable doubt on the evidence as to counts 1, 2 and 3, but would not be satisfied as to count 4 and would very probably, in those circumstances, be satisfied as to count 5, it being an alternative to the count of sexual intercourse/attempt the subject of count 4.

51. That being said, it remains for me to determine whether I am so satisfied in relation to the counts other than count 4. For reasons I will come to, I am satisfied beyond reasonable doubt that the elements of the charges the subject of counts 1, 2, 3 and 5 have been proved. In relation to count 4, if the standard of proof required was balance of probabilities, I would be satisfied that there probably was at least an attempt to achieve penile-vaginal penetration. However, I find myself having sufficient residual doubt so as to conclude that there must be an acquittal in relation to count 4.

Legal directions

52. As this is a judge alone trial, it is necessary for me to identify and either direct or remind myself as to the relevant legal principles to be applied when assessing the Crown’s case.

Judge alone trial and the nature of a special hearing

53. A special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings.

54. The fact that the defendant has been found unfit to be tried for an offence is presumed not to be an impediment to the person’s representation. 

55. A special hearing must not prejudice the defendant any more than his unfitness already has done. He must have legal representation. He may raise, or have raised on his behalf, whatever defences a fit person could raise in a normal trial. He may, or may not, give evidence. The purposes of a special hearing include:

1. To ensure that justice is done, as best it can be in the circumstances, to the defendant and the prosecution, and

2. To give a defendant an opportunity of being found not guilty and if he requires further treatment that it may be given to him outside the criminal justice system.

56. At a special hearing the defendant is taken to have pleaded not guilty to the charges against him, unlike in a normal trial in which a defendant may enter a plea of either guilty or not guilty.

57. Section 59(1) of the Act provides that the verdicts available at a special hearing include the following:

1. not guilty of the offence charged,

2. a special verdict of act proven but not criminally responsible,

3. that on the limited evidence available, the defendant committed the offence charged,

4. that on the limited evidence available, the defendant committed an offence available as an alternative to the offence charged.

58. In the present context, Counsel for the defendant has indicated that the defence under s 28 of the Act is not being relied upon. That defence, if relied on and found to be proven on the balance of probabilities, would give rise to the verdict in s 59(1)(b).

59. Thus, in this case, the available verdicts include those in s 59(1)(a),(c) or (d) of the Act.

60. If the defendant is found not guilty in this special hearing, he is to be dealt with as if he had been found not guilty of the offence at an ordinary trial of criminal proceedings. That is, he is entitled to an acquittal on the charges.

61. Section 62 of the Act provides for a verdict that on the limited evidence available the defendant committed the offence charged or an alternative to the offence charged:

1. constitutes a qualified finding of guilt but does not operate as a conviction for the offence, and

2. is subject to appeal in the same manner as a verdict in an ordinary trial of criminal proceedings, and

3. is taken to be a conviction for the purpose of enabling a victim of the offence to make a claim for compensation.

General Directions

62. Where, as here, a defendant is tried without a jury, s 133 of the Criminal Procedure Act 1986 (NSW) (‘the CPA’) imposes obligations upon the judge in reaching a verdict. That section provides:

1. A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the defendant person. Any such finding has, for all purposes, the same effect as a verdict of a jury.

2. A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.

1. If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.

63. I now set out the principles of law I have applied to my consideration of the evidence.

Onus / Right to Silence

64. The prosecution must prove each element of each of the offences charged beyond reasonable doubt. There is no onus on the defendant to prove anything. The fact that the defendant did not give evidence is no more than him exercising his right not to do so and no inference can be drawn from him staying silent.

65. The Crown does not have to prove every fact in the case beyond reasonable doubt, just the elements of each of the offences beyond reasonable doubt.

66. I must not act on suspicion or on what I believe might probably be the case. I can only return a guilty verdict to a particular count if the prosecution has proved beyond reasonable doubt each element of the offence charged. If the prosecution fails to discharge that burden on a count, the defendant must have the benefit of any reasonable doubt and I must return a verdict of not guilty on that count.

Single witness

67. In this case, the Crown seeks to prove the guilt of the defendant largely on the evidence of EH.

68. Unless I am satisfied beyond reasonable doubt that EH is both an honest and accurate witness in the accounts she has given, I cannot find the accused guilty. I need to carefully examine the evidence of EH to form a view as to whether I consider it safe to act upon her evidence to the high standard required in a criminal trial.

Complaint evidence

69. The Crown relies upon evidence about what EH said to her mother as set out above in these reasons.

70. I need to firstly satisfy myself that the complaints occurred in the way contended for by the Crown and if so satisfied, I can then use that evidence as some evidence that the assaults did occur, that is, I can use it as some in evidence independent of the evidence given by EH in her interviews. Moreover, I am entitled to use the complaint evidence as well as the time and the manner in which the complaints were made as evidence that might make EH’s evidence more believable than if she had not raised the allegation as she did.

71. Whether I use the complaint evidence in either of those ways and if so, how much weight I attributed to it, is a matter for my judgement.

Differences in complaint

72. If there are various inconsistent versions from EH starting from her first complaint through the two interviews that were conducted, that it is important to bear in mind that experience shows that people may not remember all the details of the sexual offence in the same way each time; the trauma may affect people differently including how they recall events; it is common for there to be differences in accounts of sexual offences and both truthful and untruthful accounts of a sexual offence may contain differences.

73. It is up to me to decide if any perceived differences in EH’s accounts are important when assessing her truthfulness and reliability.

Inferences

74. Facts can be proven beyond reasonable doubt by inferences drawn from other facts proven in the matter, but that I should not draw an inference from the direct evidence unless I’m satisfied it is a rational inference in the circumstances.

Credit/Lies

75. It would be a legal error to test EH’s evidence by asking the question “why would she lie?”. People might lie for all sorts of reasons, sometimes they can be discerned at a later point of time but sometimes they cannot. It would therefore be a mistake of law for me to assess EH’s evidence by asking the question “why would she lie”.

Unsworn evidence/children’s evidence

76. EH was approximately 10 years old at the time she gave her two interviews which form part of the evidence. Her evidence was unsworn but her age and the fact that she did not take an oath is not material to my assessment of whether her evidence can be acted upon as truthful and reliable. Moreover, it is important that I remember that the fact that she is a child does not mean that she should be seen as being prima facie somehow having less reliability as a witness than an adult. The purpose of the trial process is to identify if her evidence is sufficiently reliable, based upon an assessment of that evidence, not based upon some preconception as to the general reliability of children giving evidence not on oath.

The elements

77. In relation to counts 1, 2, 3 and 4 it is necessary for the Crown to prove beyond reasonable doubt:

1. That at the time and place alleged the defendant did:

1. Assault EH;

2. The assault occurred at a time when she was under the age of 16 years;

3. Such assault amounted to an act of indecency, and

4. The assault was committed when the Complainant was under the authority of the Offender.

78. In relation to count 4, it is necessary for the Crown to prove beyond reasonable doubt:

1. That at the time and place alleged the defendant:

1. Did have sexual intercourse with EH;

2. At the time when she was under the age of 18 years, or in the alternative (by the route of s 344A of the Crimes Act or s 162 of the Criminal Procedure Act that the defendant at that time and place did attempt to have sexual intercourse with EH).

Assault/Indecency/Authority

79. Dealing with the acts of indecency charges first, an assault is the deliberate and unlawful touching of another person. The slightest touch is sufficient to amount to an assault and it does not have to be hostile or aggressive. For an assault to be indecent it has to be proven to be contrary to the ordinary standards of respectable people in the community. It is for me to decide the ordinary standards of respectable members of the community at the relevant time. In relation to consent, lack of consent and knowledge of lack of consent, this is not an issue here because EH was a child under the age of 16 years (s 77 of the Crimes Act). As far as the alleged aggravating factor of authority of the Offender is concerned, the Crown must prove beyond reasonable doubt that at the time of any assault the Complainant was under the Offender’s care, supervision or authority.

Sexual Intercourse

80. As far as count 4 is concerned, being the charge of “sexual intercourse”, sexual intercourse in the context of the facts alleged in this case will be proven if I am satisfied that there was some penetration of EH’s vagina by the defendant’s penis, no matter how fleeting or minimal. As far as attempt is concerned, I need to be satisfied that there was an attempt by the defendant to achieve penetration in that way. Again, because of EH’s age, consent has no role to play.

Resolution

81. I have carefully reviewed all of the evidence in this matter. In particular, I have viewed the interviews given by EH on 2 July and 18th of August 2021. I have considered the oral and written submissions of the parties together with the written submissions of the Crown. I have tried to apply the principle of law I have identified to the facts as I have found them to be.

82. I have carefully considered the evidence of what EH said to her mother as set out above. I am satisfied she made the complaint in the way described by her mother.

83. My assessment of EH from viewing her interviews is that she is an extremely intelligent and thoughtful young girl who understood clearly the difference between telling the truth and telling lies. She carefully listened to the questions she was asked and gave what seemed to me to be entirely honest responsive answers that, if anything, might have been designed to protect her grandfather from getting into trouble. Her evidence did not appear to me at all to be feigned, reconstructed or exaggerated. Her reliability is bolstered, to my mind, by the very similar account she gave to her mother as is given in her first interview.

84. I therefore find her to be a truthful and reliable witness and am satisfied that notwithstanding the fact that hers is the only evidence that can be used to find the charges proved beyond reasonable doubt, I am prepared to act on her evidence to make such a finding.

85. I therefore am satisfied beyond reasonable doubt of the facts set out at paragraphs [25] – [46] above although the facts concerning penetration as attempts to penetrate [38], [39] and [40] are only accepted as evidence of the Complainant’s state of mind, not of what actually occurred. I am satisfied that at the relevant time, EH was under the care of the Offender and that what he did was contrary to the standards of respectable people in the community.

86. Accordingly, I am satisfied beyond reasonable doubt that each of the elements of charges 1, 2 and 3 have been proved beyond reasonable doubt on the evidence before me.

87. That then brings me to count 4.

88. As I have said, I think it is probable that there was at least an attempt by the defendant to have sexual intercourse with EH, however, I am left with a level of residual doubt as to that finding so as to not be satisfied beyond reasonable doubt as to whether sexual intercourse was either achieved or attempted.

89. My reasons are as follows:

1. There is no mention of penetration or attempt to penetrate by EH when she first complained to her mother.

2. There is no mention of penetration in her first interview, and she repeatedly stated that whatever had occurred on that occasion “did not hurt”.

3. There is some evidence in the second interview, especially when combined with the Post-it notes which were written by EH during the second interview that do tend to suggest that it was her perception of what was happening, that the defendant was attempting to achieve penetration of her vagina by his penis, for example, paragraphs [38] – [40] above.

4. However, at its highest, that evidence is no more than her belief rather than direct evidence of what actually happened.

5. I find myself somewhat confused as between the evidence in the first and second interviews as to whether EH is speaking about the same incident she was speaking about in the first interview, or a separate and distinct incident. I accept that her description of where her body and the defendant’s body was suggests that she is referring to a separate incident, but I do not feel I should in these circumstances draw that inference.

6. There is also a real question in my mind of whether or not EH was wearing underpants at the time of the alleged sexual intercourse, referring in particular to questions 134, 152 – 156 of the first interview and questions 167, 172, 174 and 239 of the second interview.

7. I felt EH gave contradictory answers and I am just not sure whether she was wearing underwear or not. If she was wearing underwear it strikes me as highly unlikely that there was actual penetration. Whilst it is possible and perhaps even probable, that there was an attempt to achieve penetration, I think the process of inferences required to be drawn to come to that conclusion beyond reasonable doubt, is such that it is unsafe for me to make such a finding.

90. However, there is absolutely no doubt in my mind that count 5, which is in the alternative to count 4, has been made out. One thing that is entirely clear from EH’s first interview is that defendant placed his penis “on” or “near” her vagina. I accept that evidence. In my judgment, that is obviously an indecent assault, and I therefore am satisfied beyond reasonable doubt that all the elements required to prove count 5 have been proved.

91. For the above reasons:

1. With respect to counts 1, 2, 3 and 5 on the indictment dated 9 September 2022 and on the limited evidence available, I find that the defendant committed the offences charged.

2. With respect to count 4, I find the defendant not guilty of the offence charged.

92. I will now make directions and stand the matter over so the parties can prepare material to place before the Court for the purposes of the Court setting limiting terms for the offences found to have been proved, as required by section 63 of the Act.

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Decision last updated: 03 October 2023