R v S, LR
[2016] SADC 95
•12 August 2016
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v S, LR
Criminal Trial by Judge Alone
[2016] SADC 95
Reasons for the Verdicts of His Honour Judge Slattery
12 August 2016
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY
Accused charged with two counts of unlawful sexual intercourse and one count of indecent assault.
Held:
Not Guilty on all counts of the Information.
Criminal Law Consolidation Act 1935 s 49(1), s 56; Juries Act 1927 s 7(1), referred to.
R v C, M [2014] SASCFC 116 (Court of Criminal Appeal)., applied.
R v S, LR
[2016] SADC 95Verdict
JUDGE SLATTERY
The accused LRS was charged on Information for arraignment on 18 May 2016 with three counts. He pleaded not guilty to each count on the Information. The counts with which LRS has been charged and which are the subject of this judgment are as follows:-
First Count
Statement of Offence
Unlawful Sexual Intercourse with a Person Under 12 (section 49(1) of the Criminal Law Consolidation Act 1935).
Particulars of Offence
LRS between the 1st day of December 1995 and the 31st day of December 1995 at Clare, had sexual intercourse with MWS a person of the age of 6 or 7 years, by performing fellatio upon him.
Second Count
Statement of Offence
Unlawful Sexual Intercourse with a Person Under 12 (Ibid).
Particulars of Offence
LRS between the 1st day of December 1995 and the 31st day of December 1995 at Clare, had sexual intercourse with MWS a person of the age of 6 or 7 years, by having him perform fellatio.
Third Count
Statement of Offence
Indecent Assault (section 56 of the Criminal Law Consolidation Act 1935).
Particulars of Offence
LRS between the 1st day of December 1995 and the 31st day of December 1995 at Clare, indecently assaulted MWS, a person of the age of 6 or 7 years.
The accused pleaded not guilty to these three charges. He elected to be tried by Judge alone sitting without a jury pursuant to s 7(1) of the Juries Act 1927.
Counts 1 and 2 Unlawful Sexual Intercourse
The elements of the offence of unlawful sexual intercourse with a person under 12 are as follows:-
1. The prosecution must prove beyond reasonable doubt that the accused had sexual intercourse with the complainant; and
2. That at the time the complainant was under the age of 12 years.
At the time of these alleged offences s 5 of the Criminal Law Consolidation Act defined sexual intercourse as follows:-
"sexual intercourse" includes any activity (whether of a heterosexual or homosexual nature) consisting of or involving—
penetration of a person's…anus by any part of the body of another person or by any object; or
fellatio; or
cunnilingus,
and includes a continuation of such activity;
Therefore, the law provides an extended meaning of what is involved in sexual intercourse and it includes penetration of the anus by any part of the body of the accused and fellatio. Any degree of penetration is sufficient but there must be penetration. Penetration for the slightest period of time is sufficient. Consent on the part of the complainant is no defence to the charge and is irrelevant. The charge is proved if the two ingredients are proved regardless of whether the complainant consented because the law concerns itself only with the act of sexual intercourse however that may have come about.
Count 3 Aggravated indecent assault
The elements of the offence of aggravated indecent assault with which the accused has been charged are as follows:-
1.An assault by the accused person on the complainant. An assault is in the application of force. Touching is sufficient. It need not have caused injury.
2.The touching was intentional as distinct from accidental.
3.The touching was without lawful excuse.
4.The touching was in circumstances of indecency – that is, conduct that is unbecoming or offensive to common proprietary applying contemporary standards and that the circumstances have a sexual connotation.
I have referred to the requirement of a sexual connotation in the fourth element above. That reference follows the matters which fell from the Court of Criminal Appeal in its decision in R v C, M[1] on the question of the proper directions required when considering the topic of indecency. In summary, it is necessary for the prosecution to prove beyond reasonable doubt that the circumstances of indecency have a sexual connotation.
[1] [2014] SASCFC 116 (Court of Criminal Appeal).
Notwithstanding recent decisions of the Court of Criminal Appeal about matters that need to be stated by a Judge sitting without a jury and accepting that it is not necessary for me to set out every obvious and basic direction which might be given to a jury, it remains necessary to record those directions about which I should remind myself. They are as follows:-
1. An accused person is presumed innocent of all charges unless and until guilt on any particular charge has been proved beyond reasonable doubt.
2. The prosecution bears the burden of proving each particular charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of each offence.
3. The accused does not carry any onus of proof and to the extent that he might put forward a defence, he does not have to prove it.
4. It is not sufficient for the prosecution to show suspicion of guilt or even to demonstrate probable guilt. Only proof beyond reasonable doubt can give rise to a conviction. If I am left with a reasonable doubt as to the establishment of any element of a charge, then I must give the accused the benefit of that doubt and find him not guilty of that charge.
5. Each of the counts on the Information concerns a separate offence; I must treat each separately and consider only the evidence relevant to that charge. If I were to find the accused guilty of one of the charges, on the evidence relevant to that charge alone, I must not use that evidence nor the fact of that finding to assist in the proof of any of the other charges. Nevertheless, such evidence may be relevant to the background or circumstances surrounding the events said by the prosecution to give rise to each of the offences charged.
6. The charges do not stand or fall together. If I were to be satisfied beyond reasonable doubt that the accused committed one of the offences charged, it does not follow that he also should be found guilty of any of the other offences charged. Depending on my findings on the evidence, I may find the accused not guilty of all offences charged or guilty of one or more of them.
7. I have reminded myself of the usual directions given to juries concerning the proper approach to assessing the various witnesses who gave their evidence, their credibility and reliability and the proper approach to drawing inferences of fact.
8. In this case, the accused elected not to give evidence. The accused was not obliged to give evidence. He had the right to remain silent in answer to the charge, leaving it to the prosecution to satisfy me of all of the ingredients of the charge. No inference or conclusion may be drawn because the accused elected not to give evidence as was his right. He was entitled to remain silent and it was for the prosecution to prove its case against him beyond unreasonable doubt.
9. Finally, I remind myself that the sole task before me is to determine whether or not the prosecution has proved the elements of each charge considered separately and beyond reasonable doubt. If I am unable to say where the truth lay in respect of a charge, then it necessarily means that the prosecution has failed in respect of that charge.
Notwithstanding that the evidence before me discloses that at the time of the alleged offending, the victim was aged 7, there is no allegation of an aggravating feature for my consideration here. This is because of the different wording of the relevant statutory provisions at the time of these alleged offences. I will explain this more fully later in these reasons.
Summary and Result
The offending is alleged to have occurred during an overnight holiday in the Clare Velley in December 1995. The accused is the biological father of the complainant who was born on 20 December 1988. The prosecution case is that during this holiday and during the time that the complainant and the accused were staying in a cabin at the Clare Caravan Park, the accused sexually interfered with the complainant. The first count relates to an allegation that the accused performed fellatio upon the complainant. The second count concerns an allegation that the accused then procured the complainant to perform fellatio upon him. The third count concerns allegations that the accused procured the complainant to attempt to insert his penis into the accused’s anus. It is alleged that for some part of the night following these incidents, both the complainant and the accused slept on the floor of the accommodation. This was notwithstanding that both of them had beds and that the next day, after a swim, they returned home. At that time and following, it is alleged that nothing was said of the events alleged to have occurred in the accommodation at the Clare Caravan Park.
The offences are alleged to have occurred in 1995. I was informed by the prosecution and it was not put in contest that the offence of unlawful sexual intercourse as it was in operation in 1995 is in almost the same terms as currently appears in s 49 of the Criminal Law Consolidation Act. The only difference is that at the time of the alleged offending, the section prescribed an age of 12 years. Currently, the section prescribes an age of 14 years. This is of no moment here because the allegations are that the events occurred when the complainant was seven years of age.
In relation to Count 3, the offence of indecent assault was virtually in the same terms as it currently appears in the Criminal Law Consolidation Act. The only difference is that there was no distinction made between aggravated and simple offences.
The definition of sexual intercourse at the time of the alleged offences was the same as it currently appears in the Criminal Law Consolidation Act 1935 as I have already outlined above.
For the reasons which I set out hereunder, I find that the prosecution case is visited with sufficient doubt to constitute a reasonable doubt of the guilt of the accused. I find the accused not guilty of the offences charged. My reasons for that verdict are now set out hereunder.
The circumstances of the alleged offending
The complainant is the son of the accused. At the date of trial he was 27 years of age. He grew up in his parents’ home in Lyndoch. He has one younger sibling, a sister. He is about 2 ½ years older than his sibling. The complainant’s parents separated in about 2001/2002 when he was about 13 or 14 years of age.
The complainant said that he had only been on one holiday alone with the accused when he was about 7 or 8 years of age. He has no recollection of the date of the holiday but has been told it was in December of 1995. At that time he had just turned 7 years of age.
He travelled to the Clare Valley with the accused and they stayed for two days and one night in a cabin at the Clare Caravan Park. He recalls the trip to Clare in the accused’s Gemini motor vehicle. He recalls that the car had to be pulled over and stopped because it was overheating.
His memory is that he arrived at the Caravan Park in the afternoon of the first day. He said it was still light outside. He recalls going into the cabin of the Caravan Park and settling down for a bit. He was shown some photos in Exhibit P1. These were the photos taken of the trip and they showed both the inside and outside of the cabin. In photograph 10 of Exhibit P1 is a photograph of the accused. It is apparent that the complainant took that photograph; it is apparent the accused took most if not all of the other photographs in Exhibit P1.
Preparatory to the trial, the complainant had prepared a “mud map” of the cabin. It was admitted into evidence as Exhibit P2. It was drawn based on the complainant’s memory of the set-up of the cabin. The complainant can recall that inside the cabin there were bunk beds, a table, kitchen bench and a bathroom/toilet. I think there is an inaccuracy in this map because it omits the inclusion of a sleeping area or room that included a double bed.
He recalled that when he settled down into the cabin, the accused went out for a bit and came back soon afterwards. When the accused left it was light but when he returned it was dark. He has no recollection of the accused bringing any food or drink to him when he returned to the cabin. His evidence in cross examination was he had not eaten any lunch and therefore he had not eaten since breakfast on that day. In the end, he did not know whether he had any food after breakfast time on that day. I think it most unlikely that this evidence is correct and I think that the complainant’s memory about this topic is deficient.
The complainant said his clear memory was that when the accused returned that evening, he asked him to come down from the bunk bed and to “muck around a bit” on the floor. He wanted him to lay on the floor. The complainant agreed. When he lay down on the floor, he said the accused pulled his pants down a little bit. At that time, he was next to the table and between the bathroom toilet and the table adjacent to the front doors. This point is marked with an “X” on Exhibit P2.
When he lay down on the floor, he said the accused told him that he would show him what his penis was for. The accused pulled his pants down a little bit, towards his knees and then the accused put his penis in his mouth. He started to suck it. This did not last long, about 5 or 10 minutes. He has no recollection if his penis was erect or not at the time and he recalls that at age 7, he had not gone through puberty.
After this 5 or 10 minute period, the accused asked him if he (the complainant) would like to do it to him (the accused). The complainant agreed and thereupon the accused took down his pants, lay on the floor and the complainant put the accused’s penis in his mouth. It was not there for very long.
After that finished, the complainant lay down on the floor again. By this time both of them were naked. He then said the accused tried to sit on top of him and the accused held his buttock cheeks apart. The accused attempted to get the penis of the complainant inside his anus. The complainant said his only memory was that he did not think there was penetration, he just thought the accused’s skin was hot and sweaty and he felt a bit of “popping”. This did not last for very long and when the accused got off him, he walked around to the other side of the table, lay down on the floor and went to sleep. The complainant went to sleep in the same place on the floor. This was despite the fact that his bed was very close by.
The complainant woke up when it was still dark outside. At that time he saw that the accused was still laying on the floor. The complainant put some clothes on and started watching television again. Soon afterwards, the accused woke up. He has a memory that the accused then went into the toilet and was vomiting for a period of about 5 or 10 minutes. While this was happening, the complainant continued to watch television.
The complainant has no memory of later having any breakfast that morning but does recall going for a swim in the pool of the Caravan Park. He also recalls that before they left the Caravan Park, the accused purchased a small red toy car for him. Notwithstanding that memory, in the photographs of Exhibit P1, the complainant is shown inside the cabin with a bottle of diet cola in front of him and the red toy car. There is a coffee cup on the table. The complainant is shown sitting at the table described on Exhibit P2 although the table appears closer to either the sliding door to the deck or the entrance door.
Also on the third page of Exhibit P1 on the photograph that I have numbered 5 being the first or the top photograph on the page, the image shows a double bed in what appears to be a separate room. The curtains of a window in the photograph are opened. It is unclear whether the window itself was open. In cross examination, the complainant said he does not remember that bed. The very clear indications from the photograph are that the bed was in a room inside the cabin.
The complainant recalled leaving the Clare Caravan Park to drive back to Lyndoch. He recalls the trip was taken in the daylight. He has a clear recollection that the accused stopped at the bottle shop which sold alcohol in the township of Lyndoch. He could not recall the name of the bottle shop. Later he said that it was the Lyndoch Tavern.
His recollection was the accused got out of the vehicle and came back to the vehicle with a long neck bottle of beer. A long neck bottle is a 750ml bottle of beer. When he came back into the car with that bottle of beer, the complainant said the accused told him he would share the bottle of beer with him. He also said they would need to drink it quickly before they got home. The complainant said he had some of the beer and when asked about how much, he said he thought he probably had half with the accused.[2] He said that the two of them finished the long neck bottle of beer before they went home. The family home was only about 5 minutes drive from the bottle shop. The beer was drunk while they were parked outside the bottle shop.
[2] T22.19.
In cross examination the complainant agreed that he did not go to any shops on the way home except for the tavern at Lyndoch to buy the bottle of beer. When asked whether he recalled drinking half of it, he said “yes roughly half”.[3] He did not know whether his mother and sister would be home at the time that he got home and he has no recollection now whether they were. He certainly recalls being told by the accused to drink it quickly and he recalls that on that day he saw his mother at some stage during the day. He really has no memory for the rest of the day after drinking the beer outside the Lyndoch Tavern.
[3] T31.37.
In answer to a question put by Ms Stokes in cross examination that there was no such purchase of the beer, the complainant said he recalled it happening. I asked him whether he felt ill at all having drunk half a bottle (about 375ml of beer) quickly as a 6 or 7 year old. The complainant said he could not recall being ill when he arrived home. I have significant doubts about this evidence. It does not have the ring of truth about it at all. When I asked the complainant[4] about feeling ill when he got home, he then said[5] he drank half a long neck bottle of beer but at that age he probably was exaggerating. He then said maybe it was not half, maybe it was only a few sips. He assumed that it was only a long neck. I have the same doubts about this evidence. I would not accept this evidence because in my view it lacks credibility and reliability. To suggest that a 7 year old child could quickly drink half of a long neck bottle of beer without any effect borders on the incredible. I reject that evidence. I think the correct position is that the accused gave him a sip of a beer that he was drinking.
[4] T34.5.
[5] T34.9.
The complainant was then questioned about evidence given in a previous trial. He confirmed that when he gave evidence in a previous trial, he did not tell the Court that he only had a few sips of the bottle of beer. He denied that this was something that he made up. He also says that he could not remember that on the only night that they stayed in the cabin in Clare, he went out with the accused for a meal and that they had chips and gravy or that the accused had a couple of beers and he had a cola. He says he does not know if he had dinner that night or not but that is not something that sticks in his memory. He agreed that it was possible that the accused had a couple of beers and he had a soft drink at the hotel and that he then went back to the cabin and played with the toy car the accused had already purchased for him and watched television. He said he could not recall playing with the toy car on the evening of the first day. He also confirmed that in evidence given in an earlier trial, he had said that he had a recollection about the larger bed being somewhere over to the left of the room described on Exhibit P2. However, he said now he has no recollection of having seen that bed. I consider that the photographic evidence in Exhibit P1 shows quite clearly that there was a double bed somewhere in the cabin and the only question is the placement of the double bed. I think that the map Exhibit P2 is inaccurate at least to that extent.
I also consider that in cross examination, the evidence of the complainant became quite confused about the alleged sexual offences. He confirmed[6] that the accused’s penis touched his anal area. He then confirmed that (apart from the fellatio events) there were two different events involving his penis and the accused’s penis. He recalls feeling his penis touch the accused’s anus however that was as far as it went from the point of view of physical contact. He confirmed that he told police that there had been some such contact but now says that his memory is that is not necessarily correct. He said he based what he said to the police on what he could recall at the time which then was that his penis penetrated the accused’s anus. This was in the statement given to the police in May 2014.[7] However he now says he does not know whether his penis penetrated the accused’s anus. In evidence that I consider to be confused, the complainant agreed in cross examination that he recalls telling police in May 2014 that the accused’s penis did penetrate his own anus. He may have misunderstood the questions asked of him but this is not clear. It is an unsatisfactory state of affairs. He said what he told the police was his recollection at the time and it is probably what he thought happened.[8] This was not the evidence given by the complainant in his evidence in chief before me. He only recalled the accused trying to force the complainant’s penis into the accused’s anus.[9] After that, the accused went and fell asleep on the floor. This evidence of the complainant on these topics is confused. This is because the two acts he is likely referring to are the alleged acts of fellatio under the first and second counts on the Information.
[6] T38.37.
[7] T39.26.
[8] T40.3.
[9] T18.2-23.
In cross examination, the complainant was then asked about his relationship with his parents. He recalled that his parents separated in 2001 and after that time, he separately spent time with his mother and the accused. He recalls the accused moving into several rental accommodations and then met his new wife M. The complainant moved in with the accused and M and stayed for a number of months. The complainant could not remember precisely how long he stayed but it could have been months. That marriage took place in 2004. The complainant moved in with the accused and M within 12 months of their marriage.
The complainant also agreed that after the period of his parents’ separation, he continually borrowed money from the accused. There came a time when the accused said to him that he would not lend him any more money until he had paid back what he had loaned him. Rather than agree with that proposition, the complainant said that it sounded familiar, it could have happened. This must have occurred after 2001 and possibly after 2004. He was then pressed about his memory on that matter and was asked this question[10] and he gave the following answer:-
Q It sounds familiar because it did happen, didn’t it?
A I suppose.
[10] T41.32.
The complainant then gave evidence that he cut off contact with the accused after that time. It was put to him that the reason for this change was because the accused would not lend him any more money. The complainant denied that and said this was because he was angry with the accused for what he had done. He agreed that the accused would not give him any money even for a wedding. After denying that he did not have a good relationship with the accused’s new wife, the complainant said he did resent the breakup of his parents’ marriage and although he did not initially resent the accused’s new wife, he came to resent her because he really did not get along with her.[11] He said it was a fair summary that he resented the accused’s new marriage. He was then asked whether he resented the accused because he had stopped lending him money. Previously, he emphatically rejected that proposition and said he resented the accused because of what he had done. Then[12] he was asked the following question and gave the following much less emphatic answer:-
Q You resented your father because he had stopped lending you money?
A Not really, no.
[11] T43.28-36.
[12] T44.2.
I consider that a number of these answers given by the complainant in cross examination are confused and leave me with little confidence about the complainant’s evidence. They are also inconsistent with the earlier answers given by him in examination in chief and with the statements that he gave to police in May 2014 and in evidence given by him in an earlier trial of this matter in 2016. Although those inconsistencies may not be separately of great importance, I consider that the combined effect of them results in there being a real doubt about the credibility and reliability of the evidence being given by the complainant.
The complainant’s mother gave evidence. She confirmed that she and the accused separated in January or February 2002 and were divorced in May 2003. She confirmed that the accused and the complainant had gone on a holiday where only the two of them were present and she thought that was in about 1998. She clarified that later by saying that having regard to the photographs that she had, the holiday to Clare took place in 1995.
The complainant’s mother was not able to remember the return of the accused and the complainant from the holiday. She has a memory of the day because some form of mini “tornado” had come through Lyndoch and had the effect of lifting tiles off the roof of their house. It also damaged trees and shrubs in the garden of their house. She associates that day with the return of the accused and complainant from Clare.
In cross examination, the complainant’s mother confirmed that she may have been actually at home when the accused and the complainant returned from Clare. She did recall that she made a statement to the police in July 2014. She said in that statement she could not recall anything outstanding when the accused and the complainant came home. There was nothing outstanding about the demeanour of the accused or the complainant. Her view has not changed since the giving of that statement.
The importance of this evidence is that it must be viewed in the background of the assertion by the complainant that within about 5 minutes prior to him arriving at the home, he had, as a 7 year old, consumed half of a long neck bottle of beer. I have already rejected that evidence and my rejection of that evidence is only reinforced by the evidence given by the complainant’s mother that she noticed nothing outstanding about either the accused or the complainant at the time she saw them upon their return from Clare. At the very least, if they had consumed alcohol, they may smell of alcohol. There is no evidence for example that his mother detected the smell of alcohol upon her 7 year old child. I accept the evidence of the complainant’s mother.
Findings
I am required to find that each of the elements of the counts are proved beyond reasonable doubt. In making that assessment, I am required to consider the whole of the evidence. And in doing so, I need to make an assessment of the witnesses called in this trial. That in the end falls to an assessment of the complainant himself.
I remind myself that I must consider whether a witness is telling the truth and then, if I am satisfied that a witness is telling me the truth, I will need to consider whether the evidence of the witness is reliable and accurate.
I remind myself that the evidence of a witness does not necessarily rise or fall in its entirety and I may accept everything that a witness says, I may reject everything that a witness says or accept only part of it as being truthful and reliable. I may act upon that part whilst at the same time rejecting other parts of the evidence of that witness as being untruthful and unreliable or both. In carrying out this task, I must have regard to my own impressions of the complainant gathered by watching and hearing him give evidence in the witness box. I also need to consider the intrinsic likelihood or unlikelihood of the story that he has told me or any bias that he may have. I need to consider how the complainant’s story stood up to cross examination, how his evidence fits in with the other evidence in the case that I find convincing and then I may take into account any other factors that commend themselves to me in making my assessment. I will also make an assessment of the evidence that I consider important and that which I consider unimportant. I will have regard to the background of the complainant, his personal qualities, how he appeared in the witness box and I will make due allowances for other matters.
I also remind myself again that the prosecution carries the burden of proof of each element of the charged offences. The prosecution has the burden to prove each of the elements of the offences beyond reasonable doubt.
I turn then to the assessment of the complainant’s evidence.
On my assessment of the whole of the evidence, I have significant doubts about the accuracy and reliability of the evidence given by the complainant. As I have already earlier canvassed, in evidence given before me, he agreed in cross examination that the accused had tried to penetrate him. I think that he was confused about this evidence and, perhaps misunderstood the question. If that is the case, I have further concerns about his evidence and what he accurately may now recall of these events. If the cross examiner was asking about the propositions being put to him I would expect that he could discern the error and correct the position. He did not do so and this creates a sense of uneasiness in my mind that there is a real prospect of inaccuracy or unreliability in the complainant’s evidence.
I am also satisfied from the photographs contained in Exhibit P1 that the toy car was purchased for the complainant by the accused on the first day they attended at the Clare Caravan Park. I consider that the complainant’s memory on that matter is not correct. I am also not satisfied that the complainant is correct when he suggested that on the first day, he had no lunch, ate no dinner later in the evening and could not recall having any breakfast the following morning. The photographs in Exhibit P1 disclose that at the least, the complainant had the toy car and a bottle of cola on the first day the complainant and the accused arrived at the Clare Caravan Park. This finding is inconsistent with the evidence given by the complainant that the accused brought him nothing from the shop or from any other place when he first went out on the first day.
I have already rejected the evidence of the complainant in relation to the events concerning stopping at the Lyndoch Tavern on the way home from Clare. I found that evidence to be completely unreliable and I would not accept it.
Considering then the question of the potential bias of the complainant, I am satisfied from the evidence given in cross examination that the complainant resented the accused’s marriage to his new wife and also resented the fact that the accused stopped lending him money. Initially, the complainant said the reason why he made the complaint was not because the accused stopped lending him money but because what the accused had done. Then in further cross examination[13] the complainant said when asked again whether he resented the accused because he had stopped lending him money, he answered “not really, no”. He was much less emphatic in giving that answer although he did go on to say that nothing he has done has been out of revenge or spite but because he wanted some closure and to seek some help as to why he does not have a bond with his own son. There is no other evidence as to why the complainant is not able to bond with his own son.
[13] T44.2-10.
I bear in mind s 34CB of the Evidence Act when coming to my verdict in this matter. I take into account the lengthy period of time between the alleged offending and the trial before me today.
This delay has resulted in a significant forensic disadvantage to the accused in challenging and responding to the allegations so long in the past. I have borne this in mind when assessing the evidence presented before me in the course of this trial and when coming to the verdict.
The accused elected not to give evidence
As was his right, the accused elected not to give any evidence. I remind myself that the accused was entitled to remain silent in the face of these charges and no conclusion or inference one way or the other is to be drawn from such an election. The onus is upon the prosecution to prove its case beyond reasonable doubt.
Findings on the evidence
In the end, I am in a position where I have sufficient doubt about the prosecution case arising from the complainant’s own evidence, the lack of any detail about the charged offences and the unexplained responses to questions in cross examination that were in error. This doubt is worsened as a result of the complainant’s answers given in cross examination, the inconsistencies between the complainant’s evidence and evidence previously given in Court and with the statements that he has given to the police and the internal inconsistencies in any event within the complainant’s evidence given before me. The position reached is that I am unable to ascertain where the truth lays. In those circumstances, I have formed the view that there is a sufficient doubt about the prosecution case to constitute a reasonable doubt about the guilt of the accused. This is so in respect of each of the first, second and third counts on the Information.
Verdict
I find that in respect to each of the elements of the first, second and third counts on the Information, I am not satisfied beyond reasonable doubt of the proof of those elements.
I find the accused not guilty on each counts.