Not guilty of defilement

After a recent trial by judge alone, a man of 28 was found not guilty of defilement. The girl in the case was 12.

Acting Justice Ms Nova Hall pointed out that, on a charge of defilement, the Prosecution must prove that sexual intercourse took place and the complainant was under 16. Consent is not an issue because, by law, the girl cannot consent.

The man denied that intercourse took place.

It was therefore left to the judge, as determiner of fact, to assess the credibility of witnesses. Sexual allegations are easy to make, but difficult to disprove, Ms Justice Hall pointed out.

In this case, it was accepted that the defendant and another male picked up the girl and her cousin and drove them to his home. The defendant and the girl were alone together for a maximum of 30 minutes: what occurred during that time was a matter of dispute.

In court, the girl gave a compelling description of what was alleged to be her first sexual encounter. She confirmed these events took place while she was alone with the defendant in his room. She also said she told her cousin about the encounter afterwards.

The judge noted that, while corroboration is not needed, a court should act only on the most credible evidence. To assess the complainant’s credibility, her evidence had to be examined for inconsistencies.

The cousin’s evidence was that the girl did not tell her about the encounter, but asked ‘weird questions’ about sex, which she had never done before.

The complainant and the cousin each said it was the other who made initial contact with the men that night. The cousin denied going into another room with the other man, although both the complainant and the defendant said she did.

The cousin was also a schoolgirl and may have been embarrassed having to explain about going to a man’s house at night, the judge indicated.

The complainant had admitted seeing the defendant, liking him and asking her cousin for his phone number. She admitted calling him, but then being too shy to speak. She took photos of him from his girlfriend’s apartment.

The girl said she was happy to be alone with the man, but angry with her cousin for leaving him with her.

The girl also agreed with a suggestion from Defence Counsel that she believed her cousin would think her silly because, despite the opportunity, nothing happened and she wanted the cousin to think the defendant was her boyfriend.

The defendant’s name only came up three or four months later when the girl told a teacher about having sex with another boy and being fearful.

The Crown said the girl’s infatuation with the defendant was the reason the incident with him was not reported.

The Defence said the earlier incident was not reported because it didn’t happen.

The defendant gave evidence. The judge said that, in his own roundabout way, he admitted an attraction to the girl. But he was adamant that intercourse did not take place. He said her age was the deciding factor.

The judge said that, in assessing the witness who was the Crown’s whole case, she had found her testimony to be hesitant and monosyllabic. Inconsistencies are not unusual in criminal cases, she continued, but usually they are offset by other supporting evidence.

In this case, there was medical evidence of intercourse. But it did not bolster the Crown’s case because, by the time of that examination, the girl had said she had sex with another boy.

All the circumstances raised suspicions, but suspicions are not enough, the judge commented.

Infatuation might well explain why the girl did not report the encounter. However, an equally consistent explanation was that it did not occur. This latter possibility was bolstered by the girl’s admissions that she did not want to appear silly and childish to her cousin.

The judge concluded that the totality of evidence pointed to a doubt and the defendant had to be given the benefit of that doubt.

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