R v Weygood
[2020] SASC 7
•24 January 2020
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v WEYGOOD
Criminal Trial by Judge Alone
[2020] SASC 7
Reasons for the Verdicts of The Honourable Auxiliary Justice David
24 January 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY
Trial by Judge alone.
The accused was charged with three counts of indecently assaulting a male between 1968 and 1970. At the time, the accused was a Marist Brother teaching at St Joseph’s College. The complainant, a teenager during the relevant period, was one of his students.
On the prosecution case, it was alleged that the accused indecently assaulted the complainant in a parked car by touching the complainant in the area of his anus and penis over his clothes (the conduct subject of counts 1 and 2). The alleged conduct subject of count 3 was that the accused grabbed the complainant’s penis over his clothes whilst engaging in “horseplay” on a couch at the complainant’s house.
At the end of the prosecution case, the parties were united that there was no case to answer in relation to count 3. Consequently, a verdict of not guilty was entered on count 3 and the trial proceeded on counts 1 and 2.
Held: In relation to counts 1 and 2, the accused is not guilty of indecently assaulting the complainant.
Criminal Law Consolidation Act 1935 (SA) s 70(1)(c), referred to.
R v Jones [2018] SASCFC 80, considered.
R v WEYGOOD
[2020] SASC 7Criminal: Trial by Judge Alone
DAVID AJ: The accused, Joseph William Weygood, is charged with three counts of indecently assaulting a male contrary to s 70(1)(c) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”) (as it then was). I set out the Information in full:
INFORMATION
Criminal Procedure Act 1921 s 123(1)(a)
For arraignment on 20 August 2019
Information of the Director of Public Proseuctions
Joseph William Weygood is charged with the following offence(s):
First Count
Statement of Offence
Indecently Assault a Male. (Section 70(1)(c) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Joseph William Weygood between the 1st day of January 1968 and the 31st day of December 1969 at Melrose Park, indecently assaulted [the complainant], a male person, by touching his penis.
Second Count
Statement of Offence
Indecently Assault a Male. (Section 70(1)(c) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Joseph William Weygood between the 1st day of January 1968 and the 31st day of December 1969 at Melrose Park, indecently assaulted [the complainant], a male person, by touching the area of his anus.
Third Count
Statement of Offence
Indecently Assault a Male. (Section 70(1)(c) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Joseph William Weygood between the 1st day of January 1970 and the 31st day of December 1970 at Clarence Park, indecently assaulted [the complainant], a male person, by grabbing his penis.
He pleaded not guilty to the charges and elected for trial by Judge alone. At the end of the prosecution case, his counsel, Ms Lindy Powell QC, submitted that there was no case to answer in relation to count 3. The prosecutor, Ms Sandi McDonald SC, agreed with that submission. Consequently, I entered a verdict of not guilty on count 3 at that stage of the trial, which then continued on the other two counts.
Overview
The complainant was born on 29 July 1954. At the times set out in the Information, he would have been between 13 to 16 years of age. In 1967, he attended at St Joseph’s College at Mitchell Park which, in that year, was open for the first time. It was a boys’ school run by the Catholic order of Marist Brothers and catered for years 7, 8 and 9. It eventually became the middle school for Sacred Heart College.
The accused was a Marist Brother teaching at that school. The prosecution case was that on two occasions he indecently assaulted the complainant, once when they were on a school sporting trip to Broken Hill (with other boys) in 1968. That behaviour was not the subject of any charge as it was in a different jurisdiction. The second occasion, on the prosecution case, took place in a car in the vicinity of the city of Adelaide and is the subject of counts 1 and 2. In essence, it amounted to allegations of indecently touching the complainant in the area of his anus and penis over his clothes.
The complainant also gave evidence of corporal punishment administered to him by the accused over the period of the three years he spent at St Joseph’s College and also of their unusually close and tactile relationship.
Over the years, the complainant complained to various people about the beatings he had received from the accused, but made no complaint concerning sexual allegations until he reported it via the internet to the Royal Commission into Institutional Responses to Child Sexual Abuse on 12 November 2016.
Other than the evidence of the complainant, the prosecution led evidence from his sister, JH, in relation to count 3. They also tendered an affidavit from District Court Judge Paul Slattery, who was a fellow student of the complainant at St Joseph’s College. That affidavit spoke of the culture of the school, including the nature of corporal punishment, the close relationship between the accused and the complainant, and the school sporting trip to Broken Hill.
There was no supporting evidence of either the Broken Hill incident or the behaviour which is the subject of the remaining counts.
Elements of the offence
The accused was charged with an offence contrary to s 70(1)(c) of the CLCA. That section has been repealed and is superseded by s 56 of that Act. I set out the relevant section:
70.(1) Any person who—
(a)…
(b)…
(c)indecently assaults any male person:
shall be guilty of misdemeanour and liable to be imprisoned for any term not exceeding seven years and may be whipped.
The elements are the same as for the current offence of indecent assault with the addition that it must be proved that the alleged victim is a male. Therefore, the elements that have to be proved beyond reasonable doubt to make out either count are:
(1)That there was an intentional application of force by the accused upon the complainant. Intentional means that it was not accidental. Force means no more than physical contact, mere touching will suffice.
(2)That the application of force was without lawful excuse.
(3)The application of force must be accompanied by or occur in circumstances of indecency. To amount to circumstances of indecency, there must be a sexual connotation.
(4)The complainant was a male.
All of the above four elements have to be proved beyond reasonable doubt before the accused can be convicted of either count.
Legal directions
I remind myself that each element of the charges must be proved beyond reasonable doubt before the accused can be convicted.
I also remind myself that both charges rest solely upon the evidence of the complainant. There is no evidence independent of his evidence to support the charges. Therefore, I must scrutinise his evidence with great care.
The accused did not give or call evidence at the trial. That was his right. His silence must not be used against him, nor cannot it be used to fill in any gaps in the prosecution case or make the prosecution case stronger.
The evidence of the uncharged act of the incident at Broken Hill can only be used in a limited way. First, it must be proved beyond reasonable doubt to have happened. If it is so proved, it can only be used in this case to show a sexual interest by the accused towards the complainant and indicate his willingness to act upon it.
There has been a long delay between the alleged incidents and trial. It is in excess of 50 years. I direct myself that this has resulted in a significant forensic disadvantage to the accused and I take that forensic disadvantage into account when scrutinising the evidence. The disadvantages include:
(1)The difficulty of remembering events that occurred over 50 years ago, which events are alleged to have taken only a matter of seconds.
(2)The difficulty in obtaining details of the Broken Hill incident and the absence of potential witnesses who may have been available to assist the case of the accused.
(3)The difficulty for the accused in defending charges when the dates of those charges are vague, such vagueness in the actual dates is clearly exacerbated by the length of time that has elapsed.
I take these disadvantages into account when assessing the evidence.
I also direct myself that no complaint of a sexual nature was made by the complainant until November 2016. I take into account the explanation given by the complainant for not making an earlier complaint. That explanation is set out in his evidence which I will refer to later in these reasons. As the trier of fact, consistent with the decision of R v Jones,[1] I take into account the lateness of the complaint in considering the credibility and, more importantly, the reliability of the evidence of the complainant.
[1] [2018] SASCFC 80.
The trial
The prosecution case depended almost entirely on the evidence of the complainant.
As mentioned earlier, the complainant was born on 29 July 1954. His parents were devout Catholics. He has two younger sisters. He first attended St Joseph’s College, Mitchell Park, described above, in 1967. He was in year 7. He left after year 9 and attended Sacred Heart College, Somerton Park. St Joseph’s was run by the Catholic order of Marist Brothers and the accused was a Brother at the school during the relevant period. He was originally known as Brother Cyril, but upon obtaining his final vows that name changed to Brother Joseph.
In his evidence, the complainant described the school routine and activities, including his enthusiasm for and involvement in basketball. He gave evidence of the level of corporal punishment which he described as involving “brutality” and “cruelty” and was the norm for all boys attending the school. It included regular canings and strappings, both on the buttocks and the hands. He described the accused as the most brutal of the Brothers in administering physical discipline. He said in evidence that students were hit every day. It is to be noted that the defence took no issue with this aspect of the prosecution case.
The complainant gave evidence on the topic of the accused having favourite pupils. He described in evidence how the accused was very tactile with his favourites and on the school grounds would often manhandle them in a playful manner and that included grabbing, holding and tickling. The complainant said that he eventually became a favourite.
He then described an incident that happened during the Christmas holidays between the years 1967 and 1968. He gave evidence that the accused told him about a holiday place that the accused had stayed at in Port Elliot and invited the complainant to come and visit him there. He gave evidence that the accused made that invitation on a number of occasions. The complainant then, with a friend, decided to go and visit him and went by train to the beach house occupied by the accused at Port Elliot. On knocking on the door, an elderly gentleman came out. On asking for the accused, he came out and appeared to be shocked to see the complainant and his friend and told them to go away.
The complainant gave evidence that the accused would often drive him to basketball matches. He would pick up the complainant, drive him to a game and drop him home afterwards. The frequency of that happening was unclear on the evidence.
He then gave evidence of the incident that took place at Broken Hill. He said that this happened in 1968 and there was a school trip to go to Broken Hill for an athletics carnival. He gave evidence that about 15 boys went on the trip and a photograph of what appears to be an athletics team was tendered in evidence.[2] That was described as the team that went to Broken Hill. He said that he was driven to Broken Hill by the accused in a 1968 Holden Kingswood motor vehicle and was accompanied by four other boys, two were sitting in the front and three in the back. He was uncertain as to how he came back from Broken Hill. He gave evidence that he was unsure of how long they were at Broken Hill for, but he was billeted out with parents of the children of the school they were competing against. He could not recall the name of that family. He gave evidence that they drove to the school that they were going to be competing against and the other boys in the car at the school were billeted out with other people and the complainant was the last boy left in the car. He then gave the following evidence:[3]
[2] Exhibit P2.
[3] T28.17–30.9.
Q.You mentioned that you had some feelings of – I think you used the word ‘trepidation’ about this trip. Did you raise that with the accused at all.
A.Yes, I did.
Q.Was that at a point in time when the other boys were in the car or just the two of you.
A.No, just the two of us.
Q.What happened when you raised that topic.
A.He – Brother Joseph pulled the car over and parked the car and was chiding me and, you know – telling me basically there was nothing to worry about and he began to, you know, tickle me on my leg, I think there used to be a saying ‘Can you ride a horse’ and you squeeze just above the knee with your two fingers. It’s quite a tickly sort of sensation, and he was doing that and poking and prodding me in the ribs.
Q.Was he saying anything as you were doing that.
A.Yes, basically telling me not to be afraid, everything was going to be fine.
Q.What happened from there.
A.I got an erection while this was going on.
Q.What caused you to get an erection.
A.I don’t know, I think it was just the tickling and the way I was sitting. Being grabbed hold – around the thigh and things like that.
Q.What were you wearing.
A.Probably my school shorts.
Q.Was your erection obvious.
A.Yes, it was.
Q.How did that cause you to feel.
A.I tried to hide it.
Q.How did you do that.
A.By cupping my hands over my groin area.
Q.What happened from there.
A.Whether I drew attention to myself or not, I don’t know. It’s – Brother Joseph noticed it and was pushing my hands out of the way, you know he would poke me in the ribs or something to make me move my hands. And was going for my penis.
Q.What do you mean by that.
A.Trying to touch my penis.
Q.What happened from there.
A.I was just devastated.
Q.What were you devastated about.
A.That I enjoyed it.
Q.When you say he tried to touch your penis, did he in fact touch your penis.
A.Through my pants, he was pressing on it.
Q.What were you doing as he was doing this.
A.Just trying to cover it up.
Q.Was he saying anything to you.
A.Not that I recall.
Q.What do you recall happening from there.
A.He eventually just stopped and – some time shortly after we drove off to where I was going to stay and I begged him not to tell anyone. Especially not my dad. Or my schoolmates. It would have been killed me. I would have been done at school.
Q.What do you mean by that.
A.I had – I got on well with my peers and – if – homosexuality or anything like that wasn’t really tolerated back in those days and it would have just destroyed me at school.
Q.It might be obvious, but why were you particularly concerned about him telling your dad.
A.Well my dad didn’t like homosexuals at all. He had had an experience I believe when he was younger and my dad was a very, very hard man; he would use his fists without much provocation.
In relation to the trip to Broken Hill, he also gave evidence that he did not know the name of the family with whom he was billeted, he had no recollection of the athletics carnival that followed, and he cannot remember the trip back.
That is evidence of an uncharged act, which I can only use in the way described above.
The complainant then gave evidence that in the years 1968 and 1969, the accused had three or four in depth conversations with the complainant regarding sexual matters and, as a result of that, the complainant became concerned and created a fictional girlfriend. He then gave evidence of going to the cinema on one occasion in either 1968 or 1969 with the accused. He assumed that he was driven there in a vehicle and whilst at the movie, the accused’s hand lightly touched the complainant on the right thigh.
He gave evidence of a particularly brutal caning by the accused that took place in 1968 when he was hit so vigorously with a cane that his hand swelled up and was bruised. He said in evidence that throughout 1968 and 1969 there was lots of tickling and wrestling behaviour between the two of them and he still appeared to be one of the accused’s favourites. The complainant then gave evidence of an occasion when he went out for a meal, which led to the incident that is the subject of counts 1 and 2. He said that one afternoon, the accused took him out for dinner to a place called the Arkaba Steak Cellars on King William Street. That particular establishment now no longer exists. Whilst at dinner, the accused provided the complainant with some alcohol and he specifically remembered having a porterhouse steak. He said that he enjoyed the occasion. He said that on the way home the accused pulled into a side street about 200 metres from his home. He gave the following evidence:[4]
[4] T40.34–43.2.
Q.What happened once you’d pulled over.
A.Just talking, I can’t remember what about, and started, you know, grabbing at me and so I’d start to fight back, because the natural reaction is to pull away and then it just turned into a wrestle mania.
Q.Where was he grabbing at you.
A.He wasn’t grabbing anywhere like in my private parts areas or anything like that, but it was like digging me in the ribs or whatever, and then just turned into a wrestling match where we were just fighting each other and I was fighting pretty hard and I have some sort of memories that are really clear and one was that he grabbed me in a full hug and I was trying to get out of his grip and his glasses were pressed against the side of my face, so I remember the glasses hurting me and things just escalated from there.
Q.Tell us how it escalated.
A.I remember the breathing too, the heavy breathing.
Q.Who was heavy breathing.
A.Both of us, his face was right next to mine. I remember breathing, puffing, and he’d got me over onto my side on the seat.
Q.Which side.
A.On my left side.
Q.And what were you doing when he got you over to your left side.
A.I think really the fight was almost knocked out of me by then.
HIS HONOUR
Q.Was this a play fight.
A.It’s what it was, it was a play fight but it was –
Q.It was a play fight to start off with at least.
A.It was – as far as I was concerned it was just a play fight right up until I was on my side, stomach, on the seat, half on the floor.
XN
Q.So what happened once you were on your side.
A.He stuck his hand into my backside, through my pants and –
Q.Where did his fingers go.
A.Sorry?
Q.Where did his fingers go.
A.I couldn’t tell, I just felt like his whole hand was pressed between my backside cheeks pushing that hand into my anus, and it was painful, it was painful and –
Q.Did you say anything.
A.And it was violent. I can’t remember saying anything.
Q.Did you do anything.
A.I would have made some sort of sound because it was painful and I do distinctly remember trying to get my backside off his hand.
Q.How did you do that.
A.I’d just wriggle and writhing it, I just could not get his hand – away from his hand and then he took his hand out of my backside and pushed in between my legs like underneath and rubbed me on my genitals hard and fast, I just started to cry because it was so painful. It didn’t feel like a sexual thing, it was just violent.
Q.Did you get an erection this time.
A.No.
Q.At what point did you start to cry.
A.When he was rubbing me up on the front, between my legs.
Q.And what happened then.
A.He stopped. He was furious.
Q.How do you know he was furious.
A.Because he said ‘Buddy, you sook, you crybaby’.
Q.Did you say anything.
A.No.
Q.What happened from there.
A.Just sat in the front passenger seat. The raindrops, I can’t remember it raining but there were raindrops on the windscreen, and I remember looking at the streetlight reflecting off the wet road. He may have been saying other stuff I just really wasn’t, I didn’t care what he had to say. I was pretty pissed off. Excuse me, your Honour.
HIS HONOUR: No, you’re right.
XN
Q.What happened from there.
A.Eventually he started the car up and did a U-turn, or a three-pointer, whatever, I can’t really remember, turned left into Edwards Street and went down to the road and stopped opposite my mum and dad’s place and let me out.
Further on in his evidence, in answer to some questions from me, he said the following:[5]
[5] T46.36–47.12.
HIS HONOUR
Q.I want to go back to the car incident which is what the accused has been charged with. When he had his hand on your buttocks, in that area, pushing, about how long did that last for.
A.Probably wasn’t very long at all.
Q.Seconds.
A.Five, 10 seconds. It felt a lot longer than that.
Q.On your penis, about the same period of time.
A.Probably – maybe even less because it was quite violent. It didn’t take long for me to start crying.
Q.So that incident with those two pieces of sexual behaviour, as you’ve described them, they would have taken, what, less than 30 seconds, I suppose.
A.Probably. It wasn’t long.
The complainant gave evidence that he finished his time at St Joseph’s at the end of 1969 and went to Sacred Heart College from the year 1970 onwards. That was in year 10. He then gave evidence of occasions when the accused, who was still teaching at St Joseph’s, started to come to his house. He thinks this happened about half a dozen times over a period of one or two months. He said that he would usually come in the evenings and stay for about an hour or two and watch TV and sometimes have a meal with the family.
He then gave evidence of an occasion which is the subject of count 3 and which was the last time the accused came around. He said that it was summertime and he was wearing “shortie” pyjamas. The accused came to visit. He remembers sitting on the couch and watching television with the accused, his sister and his father. At one stage, his father left the room and he said that the accused started grabbing at him, but did not touch his private parts. Whilst the accused was grabbing at the complainant, his father came back into the room and told the accused to get out. That was the last time the complainant saw the accused.
The complainant said that he never told his parents or anybody else about the accused touching his penis and buttocks after the Arkaba Steak Cellars until he told the Royal Commission as described above. His reason for not complaining at an earlier stage was that he was ashamed and there was no one to tell. He said that he could not tell his father. After he had come home from the incident following the Arkaba Steak Cellars, he did not tell his mother and his explanation for not complaining then was:[6]
A.I was ashamed. And there was no-one to tell. I mean I couldn’t tell my dad. Who else would I tell? The brothers?
As I have indicated earlier, I have factored that evidence into my considerations and assessment of the complainant’s reliability and credibility.
[6] T58.15–58.17.
When cross-examined, the complainant agreed that in the early 2000s he made a report to the Catholic Church Diocese in Adelaide, complaining about the physical abuse that he had suffered, but made no mention of sexual abuse. Also, in 2004 or 2005, it was put to him that he spoke to a police officer in Victoria and complained about the accused beating him. However, he was unsure whether he made any complaint at that stage about sexual abuse. He was cross-examined about the unreliability of dates as to when events happened and, by an agreed fact, it has been established that permission was given for a car to be used for the first time at St Joseph’s College on Wednesday, 25 March 1970. According to the defence, this puts confusion into many of the dates, namely the driving to Broken Hill and the dates of driving the complainant to and from basketball matches. Also, on the defence submissions, it casts doubt upon the actual date of taking him to the Arkaba Steak Cellars, as that was said to have happened in 1969. It was also put to the complainant in cross-examination that the athletics team did not go to Broken Hill in 1968, it was not until October 1969 that the Broken Hill trip took place and it was for basketball and cross-country running. It was put to him that Exhibit P2 was a photograph of the athletics team of 1968, but that was not a team that went to Broken Hill.
The conclusion one can only draw from that evidence is that there is much confusion about the actual date of the Broken Hill trip and its purpose.
It was also put in cross-examination that there was no indecent touching as described by the complainant. He denied that.
The prosecution called JH, who gave evidence of being present at the last time that the accused was at the house of the complainant. She said that the accused would visit the family home in 1969 over a period of three to four weeks, about three or four times a week. She said that on about three or four occasions they were involved in “horseplay”, whereby the accused would grab her brother and try and tickle him and he was trying to fend him off. She gave evidence that there were occasions when he was wearing his “shortie” pyjamas and the accused would often comment on them. She then gave evidence of the last time that the accused came, whereby there was a lot of physical touching and whispering, until her father came into the room and very quickly the accused got up and left. She never saw him at the house again.
As part of the prosecution case, an affidavit of District Court Judge Paul Vincent Slattery was tendered in evidence by agreement. In that statement, his Honour said that he was a former student at St Joseph’s College, Mitchell Park from 1967 to 1969. He talked about the arrangements of the school. He explained how corporal punishment at that time was a common feature of education under the Marist Brothers. Corporal punishment was administered with a cane or strap and was a regular occurrence and varied from Brother to Brother. The accused, according to Judge Slattery’s affidavit, used the cane regularly in 1967 and 1968, but less so in 1969. His Honour then described how the accused had his “pets”. He said that he had them in every year level and would show his preference by spending the majority of recess times in the company of these students and would behave in a way that Judge Slattery described as unusual. He saw him regularly having physical contact with his “pet” students by touching them around the body in a playful manner. He said that although he had a number of “pets”, the complainant was one of them. He said that this attention towards the complainant continued throughout the balance of 1969.
Judge Slattery also said that in either April or September/October 1969 he was selected to be part of a sports team to go to Broken Hill to compete against Marist Brothers Broken Hill. The object of the trip was to compete in basketball and cross-country running. The complainant was part of the team, and they went up there on a Friday and came home on a Sunday. He said that they travelled to Broken Hill on a bus, although he has no direct memory of the complainant being on the bus. He said that the accused came on the trip as the overall sports coordinator and whilst at Broken Hill the boys were billeted out with local families. He said that the accused drove a car back on the return trip to Adelaide with Judge Slattery and some of the other boys, including the complainant. He said that the car was a 1968 Holden Kingswood sedan with a white roof.
At the conclusion of the prosecution case, by consent I entered a verdict of not guilty in relation to count 3 as there was no evidence of indecent touching. The defendant then elected not to give evidence and called no evidence.
Consideration
In relation to the charged counts, it has to be proved beyond reasonable doubt that the accused placed his hand in the buttocks of the complainant as described before count 2 can be made out, and touched his penis in the way described before count 1 can be made out. If it has been proved beyond reasonable doubt that these things happened deliberately in that way, because of the age of the complainant it is an assault carried out in circumstances of indecency.
I have also directed myself that before I can use the evidence of the Broken Hill incident in the way already described, it must be proved beyond reasonable doubt to have happened.
In considering this matter, other than the incidents themselves, I must look at the evidence as a whole.
In her careful and thorough addresses to me (both orally and written), Ms McDonald urged upon me that the evidence of corporal punishment and general brutality has a role to play because it is relevant to the failure to complain and is relevant as to why the accused felt that he could engage in behaviour such as alleged. I respectfully disagree with that submission. It is clear on the whole of the evidence that although there may have been degrees between students and teachers, this abhorrent behaviour of a bygone age was considered to be normal. The fact of a lack of complaint is not confined to the time the complainant was at school, but continued until November 2016. There is no evidence before me that the alleged behaviour is in any way connected or dependent upon any form of corporal punishment. I consider that aspect of the case to be irrelevant to the issue as to whether the acts that were the subject of the charge have been proved to have taken place.
I consider the lack of an early complaint to be not insignificant. I have taken into account the complainant’s explanation, but the combination of waiting so many years to complain about matters of a sexual nature compared with his willingness to complain about brutality causes me some concern. Added to that the length of time from the alleged incidents to trial and the length of time from the alleged incidents to original complaint are so great that they give me great concern, not necessarily about the credibility of the complainant but in relation to his reliability. A lengthy period of time must have an effect on memory and the possibility of reconstruction. It is even more dangerous when the actual events themselves took a matter of seconds. There is a further danger when those actions which are the subject of the charge happened during the course of other behaviour, namely “horseplay” which of itself does not amount to an offence.
In relation to both incidents, the uncharged occasion at Broken Hill and the charged acts, the behaviour of the accused in his relationship with the complainant could only be described as unusual, if not suspicious. Nevertheless, in deciding whether it is proved that these events happened, I am short of the certainty that is required to convict. Being in that state of mind, I find the accused not guilty of both counts.
Verdicts
Count 1 — not guilty.
Count 2 — not guilty.