R v McPherson
[2021] SADC 90
•4 August 2021
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MCPHERSON
Criminal Trial by Judge Alone
[2021] SADC 90
Reasons for the Verdict of her Honour Judge Tracey
4 August 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
CRIMINAL LAW - EVIDENCE - GENERALLY
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - GENERALLY
Accused charged with maintaining an unlawful sexual relationship with a child - alleged offending occurred when complainant was aged between six and 11 years of age - forensic disadvantage - elected for trial by judge alone.
Held: Not guilty.
Criminal Law Consolidation Act 1935 (SA) s 50(1), referred to.
R v Mann [2020] SASCFC 69; DES v The Queen [2020] SASCFC 32, considered.
R v MCPHERSON
[2021] SADC 90
Criminal
David John McPherson (the accused) is charged with maintaining an unlawful sexual relationship with a child. He pleaded not guilty to the charge and elected to be tried by judge alone.
It is alleged that the accused committed the offence against the complainant, SB, during a time when the accused was friends with her parents. The charge is as follows:
Statement of Offence
Maintaining an unlawful sexual relationship with a child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
David John McPherson at Blair Athol, between the 1st day of January 2006 and the 21st day of February 2011, maintained an unlawful sexual relationship with SB, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards SB, namely:
a) touching her buttocks on more than one occasion, and
b) touching her vagina on more than one occasion.
Prosecution case
The charged offending relates to acts alleged to have taken place from January 2006 through to February 2011 when SB was aged between nearly six and 11 years.
On the prosecution case, SB’s father and the accused were work colleagues and through that connection, SB’s parents and the accused and his then-partner Melissa Nowland, developed a friendship. The two families lived close by, would regularly socialise, and SB would sleep over at the accused’s house from time to time. It is alleged that the accused repeatedly sexually abused SB by touching her on her vagina and on her bottom, both over and underneath her clothing. All these acts are alleged to have taken place at the accused’s house in a room where a bar had been set up, and first occurred in the context of the accused offering SB lollies if she let him touch her. While SB was unable to recall the specific occasions when the touching occurred, she said the touching over clothing on her bottom and her vagina, and then eventually under her clothing, occurred on many occasions.
It is the prosecution case that the accused’s inappropriate touching stopped prior to or at the time SB moved schools on 21 February 2011, the date of her 11th birthday.
SB, her mother RA, older sister CA, and Melissa Nowland gave evidence.
The accused pleaded not guilty and elected to be tried by judge alone.
Elements of the offence
Maintaining an unlawful sexual relationship with a child
The offence of maintaining an unlawful sexual relationship with a child is made up of four elements, each of which must be proved by the prosecution beyond reasonable doubt. The only element in issue whether the accused engaged in the sexual acts as alleged.
As discussed by Chief Justice Kourakis in R v Mann,[1] the elements of the offence are:
[1] [2020] SASCFC 69.
(1)The accused knowingly maintained a relationship with SB.
That element is made up of three separate parts, namely:
·There must be a relationship between the accused and SB that comprised of more than the alleged sexual acts.
·The accused must have maintained that relationship, that is, carried on, kept up or continued the relationship.
·The accused must have maintained that relationship knowingly, that is, he had knowledge of the sexual acts he performed and the contextual circumstances in which he performed the acts which comprised the relationship.
(2) That the accused was an adult during the relevant period.
(3) That SB was under the prescribed age, being 17 years of age.
(4)That in the course of the relationship, the accused engaged in two or more unlawful sexual acts with or towards SB.
Particulars (a) and (b) of the Information relate to the offence of aggravated indecent assault.
Aggravated indecent assault
The prosecution must prove beyond reasonable doubt that:
1. The accused intentionally assaulted SB.
2.The assault was accompanied by or occurred in circumstances of indecency; that is, the indecent circumstances must contain a sexual connotation and the application of force was unlawful.
3.SB was under the age of 14 years at the relevant time.
General directions
I direct myself as follows:
·The accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt.
·The burden of proving the charge lies wholly on the prosecution and the accused is not obliged to prove anything. Nothing short of proof beyond reasonable doubt will do. It is not sufficient for the prosecution to show a mere suspicion of guilt or even to demonstrate probable guilt. They must be satisfied that the prosecution has proved beyond reasonable doubt each element of the offence.
·At all times, it is for the prosecution to satisfy me that SB is both an honest and a reliable witness beyond reasonable doubt.
·I must assess each witness as to their truthfulness and reliability, and must determine whether I can rely on the evidence of a witness. I can reject or accept all or part of a witness’s evidence.
·SB gave evidence with special arrangements in place. I must not draw an adverse inference against the accused because of those arrangements, nor allow them to influence the weight that I give SB’s evidence.
·The accused elected not to give evidence, as was his right. I have not drawn any inference adverse to him because he exercised that right. If, after full and careful consideration, I am unable to decide where the truth lies or who is telling the truth, the prosecution will have fallen short of proving the case beyond reasonable doubt and my verdict should be one of not guilty.
Agreed Facts
The following facts were agreed.
Dates of Birth
1. The accused was born on 12/1/74.
2. CR was born on 18/10/89.
3. SB was born on 21/2/00.
4. MA was born on 5/12/91.
5. JB was born on 30/5/01.
6. NB was born on 8/2/03.
7. DB was born on 9/7/04.
8. BB was born on 11/11/06.
9. Jarrad McPherson was born on 16/4/04.
10. Jacob McPherson was born on 5/1/06.
Schooling
11.SB was enrolled at and attended Nicolson Avenue Primary School, Whyalla Norrie from 21 February 2005 until 13 April 2006.
12.SB was enrolled at and attended the Ingle Farm East Primary School from 5 May 2006 until 19 May 2006 (she was in grade 1).
13.SB was enrolled at and attended the Enfield Primary School from 22 May 2006 when she was in grade 1, until 18 February 2011, which was the start of grade 6.
14.SB was enrolled at and attended the Challa Gardens Primary School from 21 February 2011 (grade 6) until 14 December 2012 (which was the end of grade 7).
Housing
15.SB commenced living at Seaview Grove, Blair Athol on 16 May 2006 where her mother was recorded as the tenant.
16.The bond that SB’s mother paid to Consumer and Business Services at the commencement of the tenancy at Seaview Grove, Blair Athol was refunded on 27 January 2010.
17.The register of Motor Vehicles records the accused’s address for the purpose of his driver’s licence and vehicle registration to have been updated to Trigg Street, Blair Athol SA from 12 December 2006.
Evidence of SB
SB was now aged 21 years. She said she has six siblings. She first grew up living in Whyalla and moved with her family to Adelaide at the age of six. Her youngest brother BB had not been born at the time of the move.
She first met the accused on a visit to the Thebarton lights near the brewery around Christmas time when the accused, his partner and their two children were there. At the time, she believed the accused worked with her father. SB described visiting the accused at his house with members of her family. She would play there with her siblings while the adults were ‘drinking and stuff’. She said she would visit the accused at his house once or twice each week, but sometimes it could be more. The accused would, on occasion, visit with her family at their address. She remembered that there were a couple of barbecues when she and her family visited at the accused’s house. Sometimes they would all sleep over at the accused’s house because her mother, or someone else, was drunk. Other times she and her siblings would ‘just sleepover’. Normally they would all sleep in the loungeroom. She recalled playing with the accused’s young sons when she visited their house.
She was asked whether, when she went to the accused’s house, he would ever offer her any sweets or lollies. She said ‘No, not until I'd asked’.[2] She recalled an occasion when she asked the accused for a sweet or a lolly. She said the accused was standing behind the bar that was in the room. She walked up behind the bar and saw the lollies on the shelf and asked if she could have some. The accused gave her a packet of gum.
[2] T15.38.
She described the room in which the bar was situated as having blue walls. She said that as a child she was particularly interested in chewing gum because her mother normally would not let her children have any, so she would always try and grab it when she could.
SB said that there was more than one occasion where the accused touched her inappropriately. She said:[3]
He was in the bar room again and I had asked him if I could have just, like, some more of the gum that was there, and he told me that if I wanted it, I had to do him a favour and let him touch me.
[3] T17.32-35.
She said ‘Okay’ because she did not understand. The accused stood in front of her and hugged her, grabbing her bottom and moving his hands to the front. It was over her clothing. There was no-one else in the bar area of the house. The accused put his hand on her vagina. He did not say anything to her, and she did not know how long it went on for. After he stopped, the accused told her not to tell anyone. When the accused touched her the first time, all the other adults were drinking. She said she did not remember exactly how many times the accused touched her but it was ‘definitely like more than 10. More than 20.’[4]
[4] T21.2-3.
On the other occasions, the inappropriate touching was all ‘really the same’, but it just started happening underneath the clothing.
When asked about there being touching under her clothing, SB said:[5]
He would always kind of start the same way. So he would stand in front of me and, like, hug around me and, like, rub, like, my bum and then kind of make his way underneath my, like, clothing and go underneath my clothing and start, like, touching my bottom under there and then go around to my vagina.
[5] T22.12-17.
She thought she was six or seven years of age when the inappropriate touching started.[6] The accused used one hand to touch her underneath her clothing at the front. She described it as grabbing and touching her vagina.
[6] T23.5.
Every time she was touched inappropriately, there was mention of lollies or a lolly involved. He would give her the lollies after the touching. She thought there were times when the accused did not touch her.
SB said that she did not think she had any other interaction with the accused apart from one time she and one of her sisters shaved the accused’s head or beard at her parents’ house. The adults were drinking, and the accused wanted to shave his head.
SB said the touching stopped by the time she was 11. She moved schools and her mother had stopped all contact with the accused. She thought the contact stopped a couple of months leading up to her starting at Challa Gardens Primary School. She thought that her parents separated maybe a year or two before she moved to start at Challa Gardens. Her mother and siblings continued to live at Blair Athol for a time. After the break-up, she continued to visit the accused at his house and he continued to visit them. The inappropriate touching continued when she would visit his house after her parents had split up and her dad had moved out.
In cross-examination, SB said she was touched inappropriately more times than not when she was at the accused’s house. She did not really get a choice about whether she had to go to the accused’s house. When defence counsel suggested to her that, given she was seeing the accused’s family multiple times a week for four years, she would have to have been touched hundreds of times, SB said ‘I don't know, it's all one, went into one, I don't know.’[7] She said she went into the bar room voluntarily the first two times. After that, he asked her to come there. She said she did not understand that it was wrong. She did not really try not to go into the room with him, and did not like it when it happened. She was scared of the accused. She agreed her parents were at the house when it happened and did not remember either her parents or teachers telling her that adults touching children on the bottom is wrong.
[7] T27.5.
The first time it happened, she saw the accused in the bar room and asked him if he had any lollies that she could have. Her mother was in the backyard drinking. She did not know where her father was. SB could not remember whether you could see inside the bar room from outside, or whether there were windows in the room. The first time she was given lollies in the bar room, it was night time. It would not always happen at the same time of day. The accused would ask her to come with him to the bar room when he wanted to and when she was alone. She said she did not know if she ever tried to make an effort to avoid the accused. She said that on one occasion, one of her sisters walked in. The sister could not exactly see, because she was behind the bar. She had to hide the chewing gum from everyone else who was at the house. Her sisters had seen her with lollies and she would tell them that the accused gave them to her. She went with the accused because she was scared. She said that the bar room walls were blue and they could not have been any other colour. The light was on in the bar room on every occasion and the touching only ever happened at the accused’s address. SB said that she could not give an exact number of how many times it happened.
SB said she was certain that she started at Challa Gardens Primary School around her 11th birthday and was definite that inappropriate touching was going on in 2010. She agreed her parents separated around February 2009, which was two weeks before they were due to be married. She continued to go to the accused’s house after her parents split up because her mother and the accused’s wife were friends. She said the last time she went to the accused’s house, she was probably around 10. The last time she was inappropriately touched was before she started at Challa Gardens. She did not know whether it was before Christmas 2010. She was still at Enfield Primary School but could not recall what term it was.
She agreed that her mother, during the relevant time, had a ‘pretty bad’ drinking problem. She would often get very drunk.
Drinks at the accused’s house were in the fridge, not in the bar. She said there were spirits in the bar, but there were not many. All she knew was that the bar was in there, ‘and it had stuff on it’.[8] There were bottles in the bar cupboard, but there were not very many.
[8] T43.25.
SB said she did not sleep in a room with the accused’s sons during sleepovers. She was in the loungeroom. SB agreed that there would be up to 13 people potentially in the house at one time. She said that the accused would touch her inappropriately before her gave her the chewing gum.
In her statement to police on 13 January 2000, SB had said:
After the first time that Dave had gave me a packet of chewing gum nothing happened. It was on the second time that David touched me. I remember that David would just give me a packet of chewing gum, I wouldn't have to ask for any, he would just give me a packet, then touch me.
SB said there was no difference to that statement and her evidence and maintained the accused would touch her before he gave her the gum.
In re-examination, SB said that the sister who came into the bar area when the accused was inappropriately touching her was either NB or DB. She said there were times when she enjoyed going to the accused’s house, putting aside the inappropriate touching. She enjoyed just mucking around and playing with her siblings and their two sons.
Evidence of RA
SB’s mother, RA, said that when the family moved into their home at Blair Athol, SB was attending Enfield Primary School. RA was introduced to the accused by SB’s father. She understood he and the accused were friends through work. A friendship developed between the two families. The accused and his family moved to an address just around the corner and within walking distance. There was socialising between the families, both before and after the accused and his family moved to Blair Athol. RA said that she and her family would go to the accused’s house, or the accused and his family would come to their house. RA said that when she would visit the accused’s house, there would be ‘Just coffees and talking or barbecues and things like that’.[9] She agreed that alcohol would be consumed between the adults on some of the occasions. There were occasions when her daughters SB and JB would sleep over at the accused’s house. She said they would just ask if they could stay. When asked how frequently she would visit the accused’s house, she said that it was probably five or six times per week. A sleepover would occur probably once a week, depending on holidays and school. She recalled there was a bar in the house where the accused lived in Blair Athol.
[9] T54.30.
She said her relationship with SB’s father broke down on 3 February 2009.[10] She said that about a week after the breakup, contact between SB and the accused stopped.[11] RA and her children moved away from the Blair Athol area in January 2010. SB attended Challa Gardens Primary School from about 18 February 2011.
[10] T56.26.
[11] T57.38.
In cross-examination, RA said that she taught her children to speak up. She said that she had told them it was okay to tell if things were happening to them.
Evidence of Melissa Nowland
Ms Nowland was in a relationship with the accused from the age of 16. The relationship came to an end in 2017. They have two children together. She thought they moved to the address in Blair Athol towards the end of 2006. She described the bar area in the house as a room for the adults. The bar was a bench with shelves behind. They normally had lollies in the house because the accused liked them.[12] SB and her family would visit her family at their house in Blair Athol, although they would mostly go to SB’s house, because they had so many kids.[13] Normally it would be for an occasion like a birthday or something. On the occasions when SB and her family would come to her house, the adults would sit and talk and the kids would go and play. The adults would consume alcohol.[14] She said that SB and JB might have stayed over at her house a few times with her sons. The sleepovers were not normally pre-arranged. The girls would stay in the boys’ room with them. Ms Nowland said she was unable to say how regularly SB or one or both of her parents would come to their house when she was living at Blair Athol, because it was not very often that they would come there. Most of the time they would be at RA and her husband’s house. The visits were not very regular and most times Ms Nowland would visit at their house. When SB’s parents broke up, they stayed friends and socialising between the families continued, without SB’s father.[15] She thought it continued maybe for a couple of months.[16] There was a falling-out after that and they stopped having contact with RA and her children completely from that point.
[12] T61.27.
[13] T63.21.
[14] T64.3.
[15] T65.11.
[16] T65.19.
In cross-examination, Ms Nowland said that the room with the bar was also used as a store room. The room had a window, which allowed you to see into the yard. She said she did not think that when SB and her sister slept over, they slept in the loungeroom.[17] She denied that the room with the bar was mostly used as a store room. When RA and others were at the house, Ms Nowland would spend most of her time with RA. If RB’s family came to her house, they would all be sitting out the back together talking and the kids would just run around. Maybe one of them might go in and check on the kids, but mostly they would just sit out the back together.[18] It was not very often that they would sit inside. They might sit in the kitchen if it was really cold, but they had outdoor heaters.
[17] T67.13.
[18] T69.28.
In re-examination, Ms Nowland said that the room with the bar in it had a big window that overlooked the outdoor entertaining area. While she could not be certain, she thought the window had a blind.
Evidence of CR
CR said she was RA’s eldest daughter. She said a friendship developed between her family and the accused and his family. In particular, she developed a friendship with Ms Nowland, who was close to her in age. Members of her family would visit the accused’s home ‘pretty often’. They would have birthday parties and New Year’s Eve parties together. There would be barbeques at each other’s homes where the adults would consume alcohol. They would go to the accused’s house for children’s birthday parties and for coffee. She could not say how regularly there were visits. She said that probably her sisters would sleep over because of the boys. Her sisters appeared to get on well with the accused’s two young sons. She thought that sleepovers occurred probably less frequently than every week, because of school and extra-curricular activities, and was most likely on a monthly basis.
She was probably 19 when her mother’s relationship with her partner broke down. He moved out of the house at Blair Athol. After he left the house, there was a ‘little bit’ of socialising between the rest of her family and the accused and his family, which went on up until they moved from Blair Athol to Woodville Park. All communications stopped thereafter.[19] She thought they moved to Woodville Park just after she turned 19, because it was before she was pregnant with her son, who was born on 18 February 2011.
[19] T75.22.
In cross-examination CR said she thought that she turned 19 in about 2008. She agreed that would mean that about 2008 is when she thought that socialising continued for a little bit and then stopped with the accused’s family. She agreed that she had never seen any incidents of inappropriate behaviour between the accused and any of her siblings.
Submissions
Prosecution
Mr Wilson submitted that SB was a young woman who was trying her very best to provide a truthful and accurate account of the repetitive and opportunistic abuse that she was subjected to by her family friend, at a time when she was a very young girl. He suggested that there were some aspects of her account that had a ring of truth about them. The circumstances of the first inappropriate touching might be thought of as a relatively low risk way of the accused testing the water to see whether SB might submit to his touching, or whether she would rebuff his request to touch her in exchange for the lollies.
SB was unshaken during cross-examination. She freely admitted that she could reach for the lollies in the bar herself, and that it was possible for her to have gone in and taken the lollies when no-one was there. SB did not try and exaggerate or embellish her evidence. She did not say there was inappropriate touching on every occasion when she visited, when it would have been easy to do so. It would have been easy for her to have given evidence about touching that involved penetration to make her account objectively more incriminating or serious.
Given the repeated nature of the abuse, that the type of touching was very similar, and that the touching took place always in the same room, one would not expect SB to be able to distinguish or quantify with any great degree of accuracy exactly how many times the touching occurred.
Given SB’s young age at the time the offending, her evidence that she was only a child, scared of the accused and not knowing that it was wrong or she could have spoken up, was perfectly understandable.
While it can be said to be common ground that the friendship between the families really took off after the accused’s family moved to Blair Athol at the end of 2006, the prosecution accepts that the evidence regarding the accused’s opportunity to offend ceasing, was a little more varied.
The prosecution submits that ultimately it might be that I am not able to precisely determine the exact date or time at which the accused’s access to SB ceased. However, the evidence shows there was ample opportunity for the accused to have offended in the manner that SB described, and to the frequency that she believes it had occurred.
Ms Nowland said that when SB’s family came to socialise, they would generally sit outside, regardless of the time of year with the kids running around. One of them might go and check on the kids, but mostly they would sit together out the back. SB described her mother’s regular excessive alcohol consumption at the relevant times.
The significant things that you would expect a child of SB’s age to remember are the type of sexual touching and where it occurred. Whether she recalled now whether the lollies were given before or after the abuse is, in the prosecution submission, of little moment. The significant thing for her to remember is that the abuse on every occasion was tied to the giving of a lolly and the frequency of the abuse meant it could not be expected SB would have a precise end date to the offending.
Defence
Mr Marcus submitted that the prosecution evidence was simply not good enough to convict the accused. This was extremely brazen offending, supported only by the evidence of SB. There were up to 13 people in the house, including her parents. There was never any escalation in the seriousness of the offending. Mr Marcus submitted that the offending sits very uneasily alongside SB asking to go and spend time at the accused’s house, that is, despite the fact she did not like it, and did not want it to happen. There was nothing untoward observed by other witnesses. Mr Marcus submitted that RA’s evidence regarding when her relationship with her husband broke down is likely to be correct. This cannot sit alongside SB’s evidence that she was inappropriately touched for almost two years. SB’s evidence that no-one saw her chewing gum, was, in Mr Marcus’s submission, inherently unbelievable. The inconsistency in when the gum was given to her was important as it is a detail you would think she would remember.
Mr Marcus submitted that there is a forensic disadvantage to the accused. The evidence concerns offending that is alleged to have commenced about 17 years ago and the accused was not charged until many years after it allegedly ceased.
Discussion
My impression of SB was that she found giving evidence extremely difficult. She clearly felt uncomfortable and at times seemed to be giving evidence with considerable reluctance. That did not however lead me to conclude that she was an untruthful witness. Her evidence in my view was credible. Certainly, SB did not seek to make her evidence more dramatic or serious.
The inconsistency in SB’s evidence concerning the timing of when the lollies were given to her, was not so fundamental to SB’s evidence as a whole, to cause me to doubt that she was doing her best to recall the events truthfully.
As explained by the Kourakis CJ in DES v The Queen:[20]
Inconsistencies in the testimony of a child on the timing, sequence, placement and detail of offending are commonly encountered in trials of offences of child sexual abuse. That is not surprising. The circumstances which strike children as significant, and, therefore, memorable, are not the same as those which are important from the perspective of adults.
[20] [2020] SASCFC 32 at [3].
Not surprisingly, given the effluxion of time, there are differences in the recollections of the prosecution witnesses as to the frequency of visits to the accused’s home. Ms Nowland, who I found to be an impressive witness, said that it was more often the case that given the size of SB’s family, the visits were at SB’s family home. In the end, the evidence does not allow me to conclude how often it was that SB was at the accused’s home. Clearly however, the accused had opportunity to offend as was alleged.
SB said the inappropriate touching occurred between the ages of seven and 11 and stopped a couple of months before she commenced at Challa Gardens. It is agreed she started at her new school on her 11th birthday, 21 February 2011. RA thought that contact with the accused stopped about a week after her break-up with SB’s father and Ms Rowland said that contact continued for a month or two after the break-up. CR said contact between the families continued after the break-up but stopped when her family left Blair Athol. It is agreed that RA’s bond for her lease at Blair Athol was repaid in January 2010.
I find that it is likely RA has an accurate recollection of the date of the break‑up given it was 11 days before her planned marriage to SB’s father.
As has been conceded, there are difficulties on the prosecution case as to when the abuse came to an end in that SB was certain that the accused continued to abuse her from the time of her parent’s break-up until late 2010. SB is mistaken, however given the repetitive nature of the abuse that is alleged, that is not surprising.
I have no regard for the submission that it was implausible for a child of SB’s age at the relevant time to not have protested or refused to go to the accused’s house, despite the ongoing abuse. That SB continued to enjoy certain aspects of her visits to the accused’s house is of no moment whatsoever. To conclude otherwise would, in my view, be a total misunderstanding of what are often the most fundamental features of sexual offending against children.
In assessing the prosecution case I must however have regard to what I consider to be substantial forensic difficulties faced by the accused in this trial. While I make no criticism whatsoever of the delay in SB reporting the matter, the accused has, because of the effluxion of time, been denied the opportunity to fully test her evidence. In particular, the house in which the abuse is alleged to have occurred has been demolished, and as such, details of the room where the offending allegedly took place and its location within the house, relative to where the adults were sitting, have been lost. Naturally there has been a deterioration in the memories of all witnesses, making it difficult to test their evidence to any real degree. While I have found that SB was doing her best to accurately recall the events, the fact that her evidence could not be tested against other objective and reliable facts has left me with somewhat of a superficial understanding of the details of the alleged offending.
The offending behaviour alleged against the accused was extremely brazen, given it is said to have occurred in the presence of the accused’s partner and SB’s parents. That the adults were consuming alcohol, sometimes to the extent that SB’s family had to stay overnight, may of course account for the accused’s preparedness to risk his behaviour being noticed. However, even accepting the risks the accused allegedly was prepared to take, there is some difficulty in reconciling his apparent restraint as to the nature of his alleged offending. While it is not out of the question for an accused to have acted so brazenly in the manner in which it is alleged, an escalation of the seriousness of the offending, particularly as it had gone on for so long without detection, would have to be expected.
I must be satisfied beyond reasonable doubt of the charged offence. While I have found SB was doing her best to give a truthful account of the events, the circumstances here have left me feeling uncertain about some important aspects of the prosecution case. I cannot be satisfied to the requisite standard that the charge against the accused has been proven and must therefore find the accused not guilty.
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