R v WHITING - [2011] SADC 156

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v WHITING
Criminal Trial by Judge Alone
[2011] SADC 156
Reasons for the Verdict of Her Honour Judge McIntyre
4 October 2011
CRIMINAL LAW - PARTICULAR OFFENCES
Accused charged with 2 counts of unlawful sexual intercoruse - trial by Judge Alone.
Verdict: Guilty both counts.
Evidence Act 1929 s34M, referred to.

R v WHITING
[2011] SADC 156
Introduction

The accused was charged on Information dated 21 March 2011 with two counts of unlawful sexual intercourse as follows:
First Count
Unlawful Sexual Intercourse
W, M between the 31^st day of December 2008 and the 20^th day of November 2009 at [address provided] in the said state, had sexual intercourse with D, DT, a person under the age of 14 years, by inserting his finger into her vagina.
Second Count
Unlawful Sexual Intercourse
W, M between the 31^st day of December 2008 and the 20^th day of November 2009 at [Address provided] in the said state, had sexual intercourse with D, DT, a person under the age of 14 years, by performing an act of cunnilingus upon her.
He entered pleas of not guilty to both counts and elected to be tried by a Judge without a jury.
Outline of the Prosecution Case
The alleged victim D, DT, known as K, SD, was born on 13 September 1999. The accused was a friend of S’s mother K, B and it is through that association that S came to know the accused.
Until her mother died in November 2009 S lived with her mother and her older sister T. They have an adult sister, A, who lived independently. Occasionally S and T would have sleepovers at the accused’s house. It is the prosecution case that, on two separate occasions in 2009 when S was around 9 years of age, she had sleepovers at the accused’s house and was the subject of sexual touching which forms the basis of the two charges.
S did not tell her mother about these occasions. When her mother died on 20 November 2009 S went to live with her adult sister K, A. On the evening of 7 April 2010 S told A about these allegations. The following day on 8 April 2010, the matter was reported to the police.
Legal Considerations & General Directions
The Court of Criminal Appeal in this State has made it plain that it is not necessary for a court, having conducted a trial by judge alone, to set out in the reasons for verdict the standard or obvious directions of which the trial judge is bound to be aware. I do nevertheless remind myself of the following:
1.An accused person is presumed to be innocent of a charge unless and until guilt has been proven beyond reasonable doubt.
2.The prosecution bears the burden of proving a charge beyond reasonable     doubt and this requirement extends to proof beyond reasonable doubt of each and every element of the offence. 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.
3.By way of amplification, it is not sufficient for the prosecution to show       suspicion of guilt or even to demonstrate that the accused is probably        guilty. Only proof beyond reasonable doubt can give rise to a conviction.      It follows that if I am left with a reasonable doubt as to any element of an          offence, then I must give the accused the benefit of the doubt and find him not guilty.
4.There are two separate charges. They are tried together as a matter of convenience. Each is a separate offence. I must therefore consider each separately and return separate verdicts on each.
5.In making findings of fact I must rely upon the evidence given by the witnesses and the evidence contained in the exhibits. I must apply my common sense.
6.I have reminded myself of the normal directions given in this State to juries         concerning the proper approach to assessing the various witnesses who      gave          evidence, their credibility and reliability and the proper approach to         drawing inferences of fact.
7.     I specifically note that in this case the accused elected to give evidence in this court. I remind myself of the following matters:
·       He was not bound to give evidence.
·       He has gone into the witness box and he has taken the oath like any other witness.
·       He has exposed himself to the test of cross-examination.
·He could have remained silent leaving the prosecution to discharge its burden of proving the case.
·I should assess his evidence and the weight to be attached to it in the manner in which I assess the evidence of all of the other witnesses.
·I further note that by entering the witness box the accused does not assume any onus of proof. The onus remains with the prosecution.
8.I remind myself that it is not a question of preferring one version over the    other. The sole task before me is to determine whether or not the       prosecution has         proved the elements of the charges beyond reasonable         doubt. If I am unable to say where the truth lies in respect of a charge then        necessarily it means that the prosecution has failed.
Elements of the Offences
I now turn to the basic elements of the offences charged as they were at the time they were allegedly committed. The prosecution must prove each element beyond reasonable doubt.
In order to prove that an accused person committed the offence of unlawful sexual intercourse with a person under the age of 14 years the prosecution must prove beyond reasonable doubt the following matters:
1.     That the accused had sexual intercourse with the complainant.
Sexual intercourse includes:
·       An act which involves penetration of a female’s labia majora by the finger.
·       Cunnilingus
2.     That the complainant was a person under the age of 14 years at the time.
Undisputed facts
S was born on 13 September 1999. K, SD is named in her birth certificate as TDD. At all relevant times and until her mother’s death on 20 November 2009 S lived with her mother and her sister T. Thereafter she went, with her sister T, to live with her adult sister K, A.
The accused’s address at the relevant time was [address provided]. It is uncontentious that S stayed at the accused’s house at [address provided] overnight on a number of occasions prior to her mother’s death. The circumstances of those overnight stays is however contentious.
S’s evidence
S gave evidence about her family background and of living with her mother and her sister T in flats near the Munno Para Primary School.
Her mother was a friend of the accused. The family would see him maybe a couple of times a week either at his house or at her mother’s house. When they went to his house they would go by bus.
She said that she was 6 or 7 when she went to live with her mother and that after she had got to know the accused after maybe a few months they started sleeping over. S said that she slept over at the accused’s house on a number of occasions. Often with her sister T. They would sleep on couches in the lounge room. She said on maybe two occasions a young girl whose surname she did not know called G also stayed over and that she would sleep on the couch. On one occasion she, T and G slept at his house.
S drew a plan of the accused’s lounge room and subsequently looked at a plan of the house drawn by H, CA which she said was an accurate representation of the house. She said that the accused’s daughter L also lived at the house. She was an adult.
She then went on to give evidence about the two charged counts.
Count 1
S said that this incident occurred at a sleepover. She said there was herself, the accused and she was not sure if L was there. She and her mother went on the bus and her mother left after a few hours. She said that they watched movies, played on the play station and sat and talked for a little while. She did these things with the accused. She said after dinner she put her pyjamas on, said goodnight and went to bed on the couch in the lounge room.
She then described what happened as follows:
AI woke up during the night. There was a little bit of light outside and I felt something in my vagina area and he was rubbing my vagina and I got up and ran to the toilet and locked the door and I stayed there for a little while until I couldn’t hear him walking around. Then when he went in the room, a little while after that I went back and I went to sleep.[1]
[1] Transcript p22, line 30
She was then asked some questions about this. She identified the person rubbing her vagina as the accused. She described her clothing, the position of her clothing and the accused’s position at the time she woke up. She was then asked as follows.
QWhat could you feel.
AI could feel his fingers in my vagina
QDo you know if there are different parts to the vagina.
AYes.
QWhat are the parts that you know about.
AThere’s the clitoris, the vagina flaps, the hole, that’s about it.
QWhat’s the hole part for.
ASo you can pee out of it and have babies.
QAre the vagina flaps on top of that.
AYes.
QWhere could you feel the accused’s fingers.
AIn between my vagina flaps.
QWhat was he doing with his fingers.
ARubbing.
QHow was he rubbing.
AUp and down.[2]
[2] Transcript p23, lines 15 - 31
She said she left the next morning when her mother came and got her. She didn’t say anything to her mother because she was too afraid that the accused would hit her mother or something.
Count 2
S said that she only had one more sleepover at the accused’s house after the one she described. She said that she did not want to go back for another sleepover but went because her mother said she had to. She said that she arrived with her mother and T. They went on the bus. They stayed and had dinner. Her mother and T then left. She thought it was a week end. She said that only she and the accused were at the house. She said that they watched movies, played on the play station and drew pictures. She again went to sleep on the couch.
On this occasion she said she fell asleep watching a movie that she thought was called Ghost. She was then asked:
QWhat’s the next thing you remember.
AI woke up during the night and, like, and the TV was blue. I felt something in my vagina and like I looked down and he was licking my vagina and I got up and ran to the toilet again and locked it.[3]
[3] Transcript p28, line 37; p29 line 1
She again identified the person licking her vagina as the accused. She described her clothing, the position of her clothing and his position at the time she woke up. She said that she heard the accused walking around when she was in the toilet and she said he then went into his bedroom and said “I know she won’t tell”. She said she did not think there was anyone else in the house at the time. She went back to the couch after some time and fell asleep. The next day her mother came and took her home. She did not tell her mother about these events for the same reason as before.
S could not remember how old she was when she had the last sleepover at the accused’s house but the two sleepovers in question occurred close together. She could not remember how long after the last sleepover her mother passed away.
The Complaint
S said that she was feeling upset one night whilst doing the dishes at A’s house:
QDid A say something to you about you being upset.
AYes.
QWhat did she say.
AShe said to me ‘Why are you upset’ and I said ‘Don’t worry about it’. Because she is my sister she kept saying ‘No, tell me’ and I said to her ‘I will tell you after I have finished doing the dishes’.
QWhat happened after you finished doing the dishes.
AI went in the bedroom and wrote her a note, put it in the lounge room and then she grabbed it and read it and then came in my room and started asking me questions and then I told her the rest of it, then she started to cry and, yeah, she got really upset.
QWhy did you write a note to A.
ABecause I was too upset to say it.[4]
[4] Transcript p33, line 37; p34 lines 1-13
The note that S wrote was tendered as exhibit P2 and said:
I woke up and felt something. He had his finger where a vibrator goes, I don’t how to explain it in any other way and went up and down with his finger and I ran into the toilet and locked the door. Come into my room and I will tell you the rest.
She said that this was count 1. She said that she used the expression “where a vibrator goes” as she was trying to explain where his fingers were. S was asked the following question about vibrators:
QWhat did you think it was used for when you wrote that word on that note.
AGirls stick it in their vaginas.[5]
[5] Transcript p35, line 28-30
When A came into her room she said she told her about the second incident including the accused licking her vagina. They were both very upset, the conversation did not last long. The next day A took her to the police station and she spoke to a lady police officer called Jess.
A’s evidence
K, A gave evidence that she is S’s older sister. She is 25. She said that when her mother died on 24 November 2009 her sisters S and T came to live with her. Her mother was a drug user. A thought she used speed. She died of accidental mixed drug toxicity.
A met the accused maybe 9 years ago as one of her mother’s friends. She understood that he was a friend of her mother’s up until the time that she died. She saw her mother and the accused together from time to time. She said she saw them a couple of times at her mother’s house but mostly at his house. A went to his house but not very often. She was aware that S would sometimes spend the night at his house as would T. She said that the accused and his daughter L were living at his house and that T, L and S got on really well.
A said that she had been to the accused’s house on maybe 10 occasions and that on each occasion that she went L was living at the house. She said she did not meet a girl called CA at the accused’s house but met her once at her mother’s house and once at her house. She said that the accused took CA to her mother’s house and then to her house after her mother had died. She did not know what CA’s relationship was with the accused. She thought they were just friends. She said she couldn’t tell whether CA was living at the accused’s house.
She described an incident on 7 April 2010 when S was doing the dishes and appeared very upset. S was very quiet and not her usual self. A asked what was wrong. S said she had things on her mind and, when probed, said it was about the accused but that she wanted to finish the dishes first. A went into the lounge room. S came in and appeared very very upset. A told her to either tell her what the problem was or write it down. S went into her room and wrote a note, which she gave to A. They then went into S’s bedroom and had a conversation.
A said that what was written on the note was the first time anything had happened and that S told her there were two occasions. S was very upset and said that on the first occasion the accused had “touched her bits” following which she locked herself in the bathroom. A said that she asked S if his finger went inside her vagina and S said “no”. A said that S said that on the second occasion she had woken up and it was happening again and that his finger had gone inside of her. A took S to the police the next day.
A agreed in cross-examination that she didn’t recall S saying that the accused had licked her vagina. She did however say that she could have misheard her as they were both very emotional.
Detective Senior Constable Miller
Detective Senior Constable Miller was on duty at the Elizabeth Police Station on 8 April 2010 when K, A brought her sister S in to the police station. She said she had a discussion with A and then took S to the Elizabeth CIB interview room for a recorded interview. S, during the course of the interview, told Detective Senior Constable Miller about two episodes of sexual touching she alleged by the accused. The version of events that S gave her about each of these two matters was consistent with her evidence in court.
Detective Senior Constable Miller identified the accused as the suspect. She made unsuccessful attempts to speak to him and as a result of that arranged for an application to be made before the Magistrates Court to issue a warrant for his apprehension. The accused was arrested under that warrant in August 2010. Detective Senior Constable Miller did not interview him.
Detective Senior Constable Miller also gave evidence about her attempts to locate potential witnesses the accused’s daughter L and a child by the name of G. She indicated that she could not locate L and could not identify the identity of a child named G.
Accused’s evidence
The accused gave evidence on oath. He was not obliged to do so. In assessing his evidence and the weight to be given to it, I have approached my task in exactly the same way as I have with the other witnesses including the defence witness.
He denies the allegations that S has made.
The accused has been living at his current address for 11 years. He lives alone presently. He has two daughters. His daughter L lived with him between 31 December 2008 and 20 November 2009. She was living with him until she was 27, a year and a half ago. She went to England with her boyfriend. They are no longer on speaking terms.
He first came to know K, B about 7 years ago. When he first met her, her daughter T was staying with her and then about three years later she had S her younger daughter stay with her as well. B and her daughters T and S visited him and stayed there in the period December 2008 to November 2009. They would stay overnight maybe two to three times a fortnight. Sometimes all three stayed; mainly it was the two children. This occurred mainly on the week ends. He said whilst S and T were staying at his house his daughter L and H, CA were living with him.
CA was the daughter of the people who were living next door to him. They were not looking after her properly. He said that she came to live with him when she was 11 and moved out about a year ago. He said her grand-mother was not very well and that she moved out to care for her in about the second half of 2010.
Before CA moved out she stayed overnight at her grand-mother’s on occasion. He said that CA went to Elizabeth High School for a period of time to third year or year 10. He was not sure whether she finished year 10. He couldn’t remember the circumstances of her finishing school. He was not sure what she did after she stopped going to school. He thought she may have had a paid job at a supermarket and then she took up a horticulture course. He wasn’t sure when she worked at the supermarket. He didn’t know which supermarket it was or what shifts she worked.
When asked how CA filled in her days before she went to live with her grandmother he said he was not sure, she would be out most of the time day and night.
His daughter L worked at a jewellery store in the city for about four years. She worked Monday to Friday with consistent hours. He said his daughter L very rarely spent nights away from home.
He said that he was 100% certain that S had only ever stayed at his place on her own on one occasion. He was clear about this because she stayed with his daughter in his daughter’s bed which was a rare occasion. He said that S always wanted to come and stay with his daughter L and that she got on really well with his daughter.

S also got on well with him. He said that he would watch movies with her but denied playing play station with her.
He was aware that S’s mother used illicit drugs, amphetamine and heroin. He thought she had given it away and that she was on tablets to help her with that. He said that she was always hanging out for drugs and talking about wanting and needing them and she was saying this up to the point that she died.
He gave evidence that following B’s death he went around to A’s house at least once a week to see the children. He said he did this up until he was told he should stay away because of this case. Initially he said the police told him that he was not to have any contact and then subsequently he said it was his lawyer. He said that up until he was pulled over by the police and told about the matter involving S there had been no suggestion that he should not have contact with S. He said that he was made welcome at A’s house and treated as a good friend. In particular he said that he had been around there at least three times or more after the allegations were made at the police station. He said that they were all nice to him, nobody said anything about any allegations and they were very hospitable. He said that S was perfectly fine with him.
He said that G was a friend’s daughter but he could not remember the names of those friends. He said that G was roughly S’s age. He denied that she ever stayed overnight. He did think that G came over one time when S was at his house but not more than once.
H, CA’s evidence
Ms H is now 20. She went to live with the accused when she was 11 nearly 12. She had been living next door to him with her mother. She said that she moved in before Christmas when she was 11. She said that L was living there with them both. L continued to live there until 15 February 2010. CA said that she moved out in October/November 2010 to look after her nanna who was sick.
CA said that she met K, B a friend of the accused’s. She has known her since she was about 11 or 12. Ms K visited the accused with T and S and from time to time they stayed overnight. CA said that between December 2008 and November 2009 she was living continuously at the accused’s house. She could only recall one occasion when S came on her own. S slept in L’s room on that occasion.
CA said that during 2009 she slept at her nanna’s house on occasions and sometimes for more than one night at a time. Her nanna’s was another home she could go to when she needed to. She was asked about applying for a proof of age card in January 2009. She gave her address as her grandmother’s address when she applied. She agreed that she gave that address because she treated it as her home address.
She said she finished school part way through year 12. This was two to two and a half years ago. She was attending Salisbury East High School. She said that she went to Fremont High School first and then she changed to Salisbury East High School. When she left school she did work experience at Foodland at Parafield Gardens and then did Certificates II and III in Horticulture. She said that after she left school but while she was still living at the accused’s house she would be out most of the time but that she always went back to his house after going out. She said that in 2009 she was there most nights but not every night.
She recalled B,K’s death and going to the funeral. She said she went with the accused to A’s house on a couple of occasions after this to visit S. She said it was maybe five to ten times, closer to ten times. She recalled taking Christmas presents at Christmas 2009. She went to A’s house with the accused in the early months of 2010, maybe January, February, and March.
Assessment of S’s Credibility
The prosecution case depends completely upon the evidence of S. There is little independent support for her allegations. Accordingly it is important that I carefully scrutinise her evidence. Counsel for the defence has raised a number of concerns about her evidence
I will deal with each of the specific concerns raised by counsel for the defence.
Delay
It was said that whilst delay is not of itself probative and that whilst there is no inherent significance to the timing of a complaint, the fact that S did not complain about these matters until April 2010 is a matter that I should take into account. Counsel for the defence submitted, and I accept, that these events likely happened in the middle of 2009. The complaint was not made until 7 April 2010; I also note that more than a year has passed since the time of the complaint and the trial.
Section 34M of the Evidence Act 1929 abolishes the common law relating to recent complaint in sexual cases. Complaint evidence is not admitted as evidence of the truth of what was alleged but is admitted to indicate how the allegation first came to light and as evidence of the consistency of conduct of the alleged victim. There may be varied reasons why an alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person and it is for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
It is not contended that the accused suffers any forensic disadvantage by reason of this delay but nevertheless I have directed myself as follows:
·       The prosecution stands almost completely upon S’s evidence alone.
·       Owing to the lapse of time, and the lack of precision about the dates these events are alleged to have taken place, the accused has not been able to test her account in detail.
·       Human memory is frail and liable to distortion as time passes.
·       There is a danger of distortion of memory of events which occurred in the past.
I have taken those disadvantages into account when considering whether or not the prosecution has proved its case beyond reasonable doubt. Owing to the fact that the prosecution case depends almost solely on the evidence of S who is giving an account of events she said happened some two to three years ago with the consequent disadvantages to which I have referred I have scrutinised her evidence with great care. I have directed myself that I should not convict the accused unless I am completely satisfied of S’s truthfulness and accuracy.
There was only limited evidence about S’s relationship with her mother. It is plain that her mother was struggling with motherhood and her drug abuse. It is further clear that her mother relied upon the accused for support and assistance with her children and generally. In all of the circumstances I do not consider that it is significant S did not complain to her mother.
S’s complaint to A was spontaneous. It was not precipitated by a particular event. This in my view buttresses her credibility. There was undoubtedly a delay of some months in making the complaint. However, given S’s circumstances including S’s age, the relationship between her mother and the accused, her mother’s drug abuse and subsequent death, the upheaval in S’s living arrangements and the change of school this delay does not cause me to doubt S’s credibility or reliability.
Failure of A to corroborate
Counsel for the accused points to the failure of A to corroborate the complaint that S says she made. It is contended that A’s recollection of the complaint contains serious and significant discrepancies in relation to both counts that must cause doubt as to S’s reliability and credibility.
There was clearly a significant difference between S’s evidence and A’s evidence about the content of the complaint. A did not recall S telling her about the accused licking her vagina and A said that S denied the accused put his finger in her vagina on the first occasion. It is submitted to me that these are important matters that A was unlikely to have got them wrong. I do not agree. Whilst I consider A to have been doing her best to assist the court it is clear that this was a relatively short discussion in which S relayed shocking information to her sister. Both sisters were plainly very distressed. A was not conducting a forensic investigation of what her sister was recounting to her. On the first count the discrepancy may be no more than an issue of terminology. The account given by S refers to the accused rubbing between her “vagina flaps”. In her evidence, when questioned on the topic, she distinguished between the flaps of her vagina and her vagina hole. A asked S whether the accused’s finger went inside her vagina. S said ‘no’. That may not necessarily be inconsistent with the version of events given by S in court. It is unlikely that A cross examined her sister in the same manner as counsel to determine precisely where the accused put his finger. In relation to the second count I note A’s evidence that she may have misheard her sister as she was emotional and they were both crying.
Further, notwithstanding these differences, there were a number of compelling consistencies about the evidence of A and S. They both said that the conversation took place in the bedroom and related to sexual offending by the accused on two separate occasions both involving S’s vagina.
A’s evidence of the conversation does not cause me to doubt S’s credibility or reliability. S was consistent and believable in her evidence about what she says happened at the accused’s house. I am inclined to think that A misunderstood what was said to her. I further note that the day after the complaint S attended the police for an interview in which she gave an account of both events that was consistent with her evidence in court.
Description of the accused
It was submitted that the reason S gave for not telling her mother, namely her fear that the accused would hit her mother because he was mean, was inconsistent with her evidence describing the accused as a person who helped and protected her mother. Whilst there is certainly an incongruity in this evidence I do not consider it to be of such significance that it causes me to doubt S’s evidence. It is not unknown for helpful and protective people to behave differently in different circumstances or for people to fear that they might.
“I know she won’t tell”
Counsel for the accused referred to S’s evidence about hearing the accused say “I know she won’t tell” after the second incident whilst she was locked in the toilet and he was in his bedroom. It is said that it is neither likely nor feasible that if the accused said anything of that nature S would have been able to hear it in the circumstances she described. It was said this was supported by the way in which the accused gave his evidence specifically that he mumbled and that I, counsel and the court reporters had to ask him to repeat answers.
This contention is in many respects speculative. I do not know for instance the distance between the toilet and the bedroom, the thickness of the doors, the tone of voice used by the accused when not giving evidence in court or indeed if the accused was in his bedroom as S believes. I do not consider this evidence to be so unsatisfactory as to cause me to doubt S’s evidence in general.
“Sleeping-in”
It was also contended that S’s evidence about sleeping in until midday following the second incident is not consistent with a young girl who had been subject to a serious sexual assault as she alleges.
I have considered the evidence of S going back to the couch to sleep following both events and, in particular, of her sleeping-in to midday after the events alleged in the second count. It is common experience that people react in many and varied ways after traumatic events. I am not prepared to draw the conclusion that going back to the couch to sleep and/or sleeping-in is inconsistent with the events that S described.
Attending the accused’s house on the second occasion
Finally it was contended that S’s evidence about not wishing to go to stay with the accused on the occasion of the second allegation was curious evidence. I have carefully considered S’s evidence on this topic. I did not find it curious. Given the circumstances at the time of the second sleepover, particularly S’s age and her mother’s drug addiction I do not consider S’s evidence on this topic to be surprising or implausible.
I have considered all of these matters individually and as a whole. This consideration has not caused me to doubt my initial impression of S as a credible and reliable witness. She gave her evidence in an articulate and straight forward manner. She appeared to be doing her best to assist the court. There was no indication of exaggeration or concoction. I found her evidence to be frank, plausible and containing the detail that one would expect in a child of her age. She was not shaken in her evidence under cross-examination. I accept her evidence.
Assessment of the defence case
There are parts of the accused’s evidence that I cannot accept. I do not accept his evidence that he was visiting S and T at A’s house on a regular basis until he was informed about these charges and told to stay away. Doing the best I can with the evidence before me, he cannot have known about the charges earlier than August 2010. These asserted visits were not put to either S or A for their comment. The tenor of their evidence was not however consistent with regular visits. I further consider it highly unlikely that A would have been as welcoming and hospitable to the accused as he claims after S’s disclosure. Likewise I do not consider it likely that S would have been as at ease with him as he claims.
I also reject the accused’s evidence that he was never alone with S at his house. In my view he has lied about that matter in order to distance himself from any opportunity to be alone with her.
H, CA was undoubtedly doing her best to assist the court but I found her evidence about her living arrangements in 2009 to be confusing and contradictory. Whilst she says that she was living with the accused and was rarely away over night she somewhat inconsistently agreed, when she was asked about applying for her proof of age card in January 2009, that she regarded her grandmother’s house as her home more so than the accused’s house.[6]
[6] Transcript p139
Taking into account the whole of the evidence, including that of the accused. I consider it likely that CA did not live full time at the accused’s house during 2009. Accordingly her evidence is of limited assistance.
Verdicts
Whilst I have rejected much of the accused’s evidence, that is no basis for my finding him guilty. An innocent man may well lie to avoid being wrongly convicted. The fact that I reject much of the evidence of the accused, and have found Ms H’s evidence to be neutral, is no basis for a conviction. The onus of proving each element of each of the two charges remains always on prosecution.
Having said that, I am satisfied beyond reasonable doubt that S’s evidence about sexual contact between her and the accused is credible and reliable. I am satisfied beyond reasonable doubt that the prosecution has proved that the accused had sexual intercourse with S on each of the two occasions specified and that S was under the age of 14 on each of those occasions. I am also satisfied beyond reasonable doubt that on the first occasion, as alleged in the first count, the accused digitally penetrated S’s labia majora and that on the second occasion as alleged in count 2; the accused committed an act of cunnilingus. Accordingly I find the accused guilty of both counts on the Information.