R. v. K.H., 2020 NLSC 67

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. K.H. , 2020 NLSC 67 Date : May 6, 2020 Docket : 201908G0131 Her Majesty The Queen v. K.H. Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way.

AND: Restriction on Publication: By court order made under subsection 486.5(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published, broadcasted, or transmitted in any manner. Before: Justice Frances J. Knickle Place of Hearing: Happy Valley-Goose Bay, Newfoundland and Labrador Dates of Hearing: February 18 and 19, 2020

Summary:

The Accused was charged sexual assault against the Complainant as well as uttering threats and assault. The Complainant and theAccused testified. Upon review of all the evidence, the Accused was acquitted of all offences. The Complainant’s recall was poor andthere were numerous inconsistencies in her evidence, both in respect to peripheral matters as well as matters central to the allegations. The Accused was a credible witness. The Court was not satisfied that the actus reus of the offences had been established beyond areasonable doubt. Appearances: Stephen A.

Anstey Appearing on behalf of the Crown Rosellen Sullivan Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320; R. v. Starr, 2000 SCC 40; R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742; R. c. Gagnon, 2006 SCC 17; R. v. K.P., 2019 NLCA 37; R. v. Best, 2016 NLCA 10; R. v. S.O.,2019 NLCA 42; R. v. M. (R.E.), 2008 SCC 51; R. v. W. (R.), (SCC), [1992] 2 S.C.R. 122 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c.

C-46 REASONS FOR JUDGMENT Knickle, J.: INTRODUCTION [1] K.H., the Accused, is charged with sexually assaulting H.B. between November 1st, 2016 and November 30th, 2017, byhaving intercourse with her on multiple occasions, without her consent, pursuant to

section 271 of the Criminal Code, R.S.C. 1985, c. C-46. He is also charged with assaulting her, by slapping her on one occasion, pursuant to

section 266 of the Criminal Code, and utteringthreats towards her to cause her death or bodily harm pursuant to

section 264.1, by threatening to have his two dogs attack her if she toldanyone about the intercourse. This is the decision on verdict. [2] There were two witnesses, H.B. and the Accused. While there is no dispute that there was sexual contact, the parties differsubstantially in their accounts of the events. [3] H.B. testified that she was 19 years old and that she was born November. She knew the Accused through Facebook. He addedher as a “friend” and she accepted the addition. She thought this was in 2016. She testified she started “hanging out” with him just afterher sixteenth birthday.

She would buy “weed” from him or go to his house drinking. H.B. stated the Accused also took her driving in hisvehicle. H.B. spent time with the Accused between November of 2016 and the summer of 2017. Until the spring of 2017 the Accusedlived in an apartment, by himself. He also had two dogs of the Pit Bull type of breed. However, by the end of summer, 2017, shestopped spending time with the Accused as he had moved back in with his grandmother. The Incident at the Accused’s House [4] H.B. testified she thought the first incident was in November 2016 or around the time he had added her to his Facebookfriends.

He picked her up at her dad’s house and drove to his house. It was just her and him, and she thought the vehicle belonged to hisfriend. Once at his house, the Accused gave her a beer. She did not know how many she had. The Accused was also drinking. H.B.testified the Accused also gave her some cocaine which she “snorted.” She did not remember how much cocaine she ingested. After aperiod of time, the Accused took H.B. into his bedroom. H.B. stated the Accused had “unconsented” sex with her. She did not knowhow long she was at his home before they had sexual intercourse.

She testified she told the Accused “No” and that she did not want todo that, but he replied that it was okay. She did not know how long the intercourse lasted, or whether the Accused ejaculated. He did notwear any kind of “protection.” Incident at Accused’s Father’s Cabin [5] The next incident (although not necessarily the next in time) described by H.B. occurred in the summer of 2017 when the twowere gone for a drive in the Accused’s grandmother’s vehicle. H.B. testified it was a white “Tracker” model of car.

She described thevehicle as being like “a small Jeep.” She testified they went for a drive outside of town to the Accused’s father’s cabin. She thought itwas about a 20-minute drive. H.B. testified that the Accused took her out of the vehicle and laid her on the hood of the car and had

“unconsented” sex with her. She testified she was on her stomach and the Accused held her down. She testified that she tried to keep her pants up but he stated, “No, you want this.” She stated she said she did not “want this” and told the Accused to stop. She could not remember what time of day it was but she thought it was dark. He did not wear “protection,” and she could not recall if he ejaculated. She could not remember where she slept that evening. The Incident behind the Bar [ 6 ] H.B. testified there was another incident that occurred on a trail behind one of the bars in the community.

She testified that the Accused drove her “way out” on the trail. When he stopped the vehicle, as in the other incident with the car, the Accused took her out of the vehicle and laid her on the hood. This time she was on her back. He took down her pants. She was telling him no, and he was telling her “[y]es, you want this.” She testified she tried to “keep him out of her pants” and he had “unconsented sex” with her. She could not say if this incident on the trail occurred before or after the incident that occurred in the summer of 2017 at his father’s cabin. The Incident on R.

Road [ 7 ] H.B. described a further incident when driving. They went down a trail on R. Road. This incident occurred inside the car. The Accused unbuckled his seat belt and moved from the driver’s seat to be on top of her in the front passenger seat where she was located. He then reclined her seat and took off her seat belt. H.B. testified that she tried to keep her legs together, and the Accused was trying to take her clothes off. She testified she kept hauling them back up. He kept moving her hands until he removed her clothes, including her underwear. He then took his pants down.

She testified that the Accused kept telling her that “she wanted this.” He then had intercourse with her. She testified she tried to push him off, but she could not do so. She thought she was wearing track pants at the time and a “hoodie.” [ 8 ] H.B. testified that during this incident she started to cry. The Accused slapped her, became angry and got back into his seat and drove her home. She thought this incident also happened in the summer of 2017. She thought it was getting dark but there was still sunlight. She could tell he was angry by the way he acted.

His movements became “quick,” and he didn’t say anything on the way back. She testified she was crying because she did not want him to touch her. The Incident in “the Woods” [ 9 ] H.B. described another incident down another familiar trail in the community. She testified the Accused drove her “way into the woods” and again had sex with her while she was on the hood of the car. She testified she told him “No” and to stop. This also occurred in the summer of 2017.

There was daylight, but she could not say what time of day the incident occurred. [ 10 ] H.B. could not say how often she saw the Accused between November of 2016 and the summer of 2017, or whether or not the only times she saw him was when the alleged assaults occurred. [ 11 ] When asked why she continued to see the Accused, H.B. testified that she was scared to stop going to his house because she did not know what he would have done. She testified that she was scared of him, given that he would take advantage of her.

She also stated that the Accused told her that if she said anything, he would get his two dogs to attack her. She could not remember when this was said to her, but she was “pretty sure” it was at his home before he moved in with his grandmother. [ 12 ] When asked when she stopped seeing the Accused, she thought it was around the end of the summer of 2017. She thought the Accused stopped talking to her; she did not know why.

She could not recall when she brought the allegations to the attention of the police. [ 13 ] H.B. testified there were other incidents but she could not remember the details. [ 14 ] On cross-examination, H.B. was challenged at length about her testimony as being inconsistent with statements she had made previously. These are examined in detail in my analysis of H.B.’s credibility. [ 15 ] Counsel for the Accused also suggested to H.B. that she fabricated the allegations in

an act of revenge towards the Accused because she believed the Accused had “set her up” to be in trouble with an acquaintance. The evidence on this was sparse. H.B. was questioned about an incident that occurred on December 5th, 2017. H.B. was required to go to court at that time. It was suggested to her that she blamed the Accused for “setting her up” with regards to this, and this was why she went to the police to make the complaint of sexual assault.

It was pointed out to H.B. that she went to the police the same day as she attended court. [ 16 ] H.B. denied that she made the complaint in retaliation for what happened at provincial court. She testified that the reason she went to the police at that time was that she was afraid what the Accused might do. She stated she was concerned that if he was willing to get her into trouble with the mutual acquaintance, he might go further. The Testimony of the Accused [ 17 ] The Accused testified that he was 28 years old at the time of trial and was 25 when he first met H.B.

He confirmed he met H.B. through Facebook in the fall of 2016. He “added” her as a “friend” and she then messaged him looking to buy some marijuana from him. He stated he drove to her home to deliver the marijuana. They met outside and she paid him $20. [ 18 ] After this encounter, she messaged him on Facebook and arranged to meet again. He picked her up in his friend’s vehicle at her home. There was no one else with them. They drove to his apartment. Upon arrival he offered her a beer. They were in the kitchen for about an hour or two when H.B. went to the washroom.

When she returned she had taken off her shirt and was wearing her bra. She sat on his lap and they “made out.” They resumed talking for a while and then started making out again. They made their way to his room where they took off their clothes and had intercourse. [ 19 ] He recalled the lights were on in the room, and he could see her face. There were no signs of discomfort from H.B. She did not

ask him to stop or protest. She was communicative with him. She was not intoxicated and did not “pass out” at any point. After theintercourse, they went back to the kitchen, talked, and had more beer to drink. H.B. stayed the night as the Accused had no way to bringher home. A mutual friend took her home the next day. [20] The Accused testified H.B. was at his apartment on several occasions. Between November and June of 2017, H.B. wasprobably at his home a half-dozen times. The next time he saw H.B. was probably about a week or so after their first sexual encounter. They would arrange to meet through Facebook.

The Accused testified that H.B. was the one who “mostly” messaged him, as she wasoften looking to obtain marijuana. [21] The Accused described that during the next encounter, the two watched a movie and had intercourse. The Accused stated thatH.B. showed no signs of discomfort and did not say anything to him that communicated that she did not want to have intercourse. [22] The Accused testified that it was in May or June of 2017 that he moved to his grandmother’s home. H.B. would visit when hehad friends over.

She never slept at this location as her own home was a short distance from where his grandmother lived. [23] The Accused agreed that he used his grandmother’s vehicle and that H.B. was in the vehicle with him on several occasions. Hetestified that they would go for a drive, confirming many of the locations to which H.B. had testified. However, he denied that he everhad intercourse with her in the vehicle or at the cabin. [24] The Accused described their relationship as being “just friends.” Towards the end of the summer, they stopped seeing eachother, until shortly before her birthday in November, 2017.

H.B. contacted him to get him to buy her some alcohol. He testified he didnot do this. The next association he had with H.B. was when he was contacted by the police on December 5th, 2017. After the incidentat provincial court, he was contacted by the police and advised that H.B. alleged he had sexually assaulted her. [25] The Accused confirmed he had two dogs but denied ever threatening H.B. that he would have the dogs attack her if she toldanyone that he had sex with her. The Accused testified he never had to convince H.B. to have sex, that she was always a willing partner.

He denied ever hitting her or slapping her. [26] On cross-examination, the Accused was asked why he had added H.B. as a friend, particularly in light of their age difference. The Accused testified he knew her through friends and was just being friendly. He testified that she was the first one to message him,and it was to purchase marijuana from him. [27] When asked about giving beer to a sixteen-year-old, he testified he offered her a beer, he did not force it on her. He stated itwas “Bud – light beer” as he is not a heavy drinker. There was no “hard” liquor consumed.

He admitted they both ingested cocaine aswell. He testified that she initiated the sexual contact on that first evening. He stated he took her by the hand to the bedroom, that therewas no forcing. [28] The Accused denied ever saying “[y]ou want this” or forcing sex in any way. He denied threatening or slapping H.B. or thatthere was an occasion when she cried because he was angry. He testified there was never an occasion when he was angry or that she wasscared of him. He testified that there was only “good vibes” between him and H.B.

When asked about going for drives, the Accusedstated they did go for drives occasionally, but they never had intercourse inside or outside of the car. He did agree that they may havegone to his cabin on one occasion, but no intercourse occurred. [29] The Accused was adamant that sexual intercourse occurred only at his apartment prior to moving to his grandmother’s home,between November 2016 and May or June of 2017, and that H.B. was at that apartment between six to ten times.

She slept over two orthree times, including the first encounter. [30] The Accused also denied an incident when mutual friends were at the apartment or he told H.B. to go into the bedroom so theywould not know she was there. Nor was there any time that she stayed at his home for a “number of days.” He never touched her whileshe was sleeping, and she was never there for more than one night in a row. [31] When asked why he stopped seeing H.B., he testified that after he moved to his grandmother’s place he and H.B. drifted apart.

He could not recall when the last contact occurred, but he thought it was a couple of weeks to a month before her birthday in Novemberof 2017. He denied their last contact was as far back as the summer of 2017. The Accused stated it was not until he attended court onanother matter in December of 2017 that he spoke to H.B. THE STANDARD OF PROOF IN A CRIMINAL TRIAL [32] In a criminal trial, the onus is on the prosecution to prove all the elements of the offence beyond a reasonable doubt. That onusnever shifts (R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320).

The standard of proof beyond a reasonable doubt is closer toabsolute certainty than it is to the balance of probabilities (R. v. Starr, 2000 SCC 40). It is not enough to be satisfied that the accused“probably” or “more likely than not” committed the offences. On the criminal standard, a court must be satisfied well beyond this levelof certainty. [33] In this case, because the Accused testified, in deciding whether the offences have been proven, the Court must also be cognizantof the instruction in R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742.

This approach is to ensure that in a case where there maybe competing versions as to what occurred, the Court does not fall into the trap of simply choosing between the two contested versions ofevents, but renders its verdict on an assessment of all the evidence.

It is always helpful to review the framework of W. (D.). [34] Firstly, if the evidence of the Accused is believed and would support a finding of not guilty, the Court must find the Accusednot guilty. [35] Secondly, even if the Accused’s evidence is not believed, if the Court is left with a reasonable doubt by the evidence, then theAccused must be acquitted.

[36] Finally, even if the evidence of the Accused does not raise a reasonable doubt, the Court must still assess all the evidence that itdoes accept to determine whether the evidence supports beyond a reasonable doubt that the offences occurred. [37] In this case, there is conflicting evidence between H.B. and the Accused as to what happened. It is helpful to review what thelaw says about the assessment of the credibility of witnesses and their evidence before discussing the evidence that I accept.

The Assessment of Credibility [38] The assessment of the credibility of a witness, as well as the veracity of a witness’s testimony, is not a formulaic process; butthe culmination of a number of considerations such as, but not limited to, how the witness responded to questions. Were theyargumentative, evasive or forthright? How was their recall? What was their opportunity to observe the event, and were thereinconsistencies in their evidence standing alone or in relation to the other evidence called? In assessing the witnesses, I also keep inmind the words of the Supreme Court of Canada in R. c.

Gagnon, 2006 SCC 17, at paragraph 20: Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling ofimpressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. … [39] I also keep in mind the further comments of our Court of Appeal in R. v. K.P., 2019 NLCA 37, at paragraphs 42 and 47. Referring to their previous decision of R. v. Best, 2016 NLCA 10, I am reminded that as the trial judge, I may accept all, some, or noneof the evidence of a witness. In R. v.

S.O., 2019 NLCA 42, at paragraph 16, Hoegg J.A, speaking for a unanimous court, stated that theassessment of credibility of the witness is the “province” of trial judges, and “many factors inform the result.” At paragraph 17, HoeggJ.A. stated further: This Court addressed the issue in Stassis v. Amicus Bank, 2014 NLCA 38, 356 Nfld. & P.E.I.R. 80 (N.L. C.A.), wherein White J.A.endorsed the time-tested approach to assessing credibility set out by the British Columbia Court of Appeal at page 357 of Faryna v.Chorny (1951), (BC CA), [1952] 2 D.L.R. 354 (B.C.

C.A.): The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions ... ... The trial judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance ofprobabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion.

The law does not clothe thetrial judge with a divining insight into the hearts and minds of the witnesses. … [40] As stated by McLachlin C.J. in R. v. M. (R.E.), 2008 SCC 51, at paragraph 49, “assessing credibility is a difficult and delicatematter that does not always lend itself to precise and complete verbalization.” [41] I am also mindful that in assessing the evidence of H.B., she is still young. She is testifying to events when she was 16. TheSupreme Court of Canada in R. v.

W. (R.), (SCC), [1992] 2 S.C.R. 122, has cautioned trial judges to approach theevidence of children with “common sense,” taking into account that it may not be appropriate to assess the credibility of the testimony ofa child on the same standards as an adult. THE POSITION OF THE PARTIES [42] The Crown submits that the Accused should be found guilty of sexual assault but concedes that the evidence is weak withrespect to the allegation of uttering threats and assault.

The Crown acknowledges there may be inconsistencies in H.B.’s evidence, butshe has been consistent that she did not consent to any of the sexual contact. [43] The Accused asserts that the testimony of the Accused is reliable and consistent and that there should be an acquittal on thebasis of believing his evidence. But even if not believed, not only should the Court be left with a reasonable doubt by the Accused’sevidence, the Court cannot be satisfied beyond a reasonable doubt by all the evidence, given the abundant inconsistencies established inH.B.’s testimony.

Defence counsel also assert that the timing of H.B.’s complaint to the police is compelling evidence that shefabricated the allegations in retaliation for a falling out with the Accused. ANALYSIS The Assessment of the Accused’s Testimony [44] I found the Accused to have testified in a forthright manner. He was calm, matter of fact, and consistent. He was notargumentative but responsive to questions. There were no inconsistencies in his narrative.

His evidence is reasonable and plausible inlight of all the evidence – notwithstanding what one might think about the propriety of a twenty-five-year-old striking up a relationshipwith a sixteen-year-old girl and also readily supplying her with alcohol and drugs. While I do not believe the Accused entirely, I find hewas a credible witness. I accept his evidence that H.B, willingly spent time in his company, and to the degree as he described. The Assessment of H.B.’s Testimony [45] On the other hand, I found H.B. to be a reluctant witness.

While she was credible in some regards, I find her testimony overallunreliable. Her recollection was very poor, and she seemed confused at many points as to when particular events occurred. She alleged

numerous instances of sexual intercourse over the course of several months, but her account of what happened lacked considerable detail. She tended to respond with conclusory statements, not a description and they were the same for every incident. For example, when asked about what happened, H.B.’s response on several occasions was no more than the Accused “had unconsented intercourse” with her. [ 46 ] She often responded to many questions, “I don’t remember;” particularly under cross-examination.

When she did respond with details, more often than not, the details were shown to be inconsistent with her previous statements or her evidence at the preliminary inquiry. She also stated that she thought she had blacked out some memories, or had blacked out. She also alleged the Accused may have sexually assaulted her when she was asleep, although her evidence was confusing as to why she thought this. [ 47 ] A good example of her poor recall is that it was suggested to H.B. that she was the first person to make contact with the Accused on Facebook once he added her as a friend.

H.B. responded she did not remember who contacted who first. She was then shown her testimony at the preliminary inquiry and her statement to the police. In both cases, she stated that she was the first person to contact the Accused to purchase marijuana. H.B. repeated she still did not remember who contacted who first, although she accepted her previous testimony and what she had said in her statement. [ 48 ] Also, when asked when the two first met in person, H.B. stated she did not remember.

Initially H.B. maintained that the first meeting in person was when she went to the Accused’s home with him in the vehicle as she testified under direct examination. However, it was pointed out to her that she had stated on previous occasions that the first encounter was for the purpose of purchasing marijuana from him.

H.B. testified that the way she now remembered it was that the incidents happened at the same time, that this was not two different occasions. [ 49 ] Before dealing with particular inconsistencies, I first am going to address Defence counsel’s assertion that the timing of the H.B.’s complaint to the police supports that H.B. fabricated the allegations in

an act of retaliation towards the Accused. The evidence was sparse on this point, but the assertion is that there was an incident with an acquaintance of both parties that required H.B to attend at provincial court in December of 2017. [ 50 ] While I accept that the timing of H.B.’s complaint is suspicious, I am not satisfied the evidence establishes that H.B. fabricated the allegations or made the allegations against the Accused in retaliation for what happened at provincial court. There were few details as to exactly what happened.

On the evidence before me, the timing of H.B. going to the police is equally consistent with her explanation as it is with retaliation. [ 51 ] I am not satisfied to make any adverse findings in relation to her credibility because the timing of her complaint is evidence of a motive to fabricate. The Alleged Inconsistencies [ 52 ] As stated, counsel for the Accused alleged numerous inconsistencies in H.B.’s evidence. Many of these inconsistencies were minor; however, there were several inconsistencies that, in my view, were serious.

I have considered all the responses by H.B. in evaluating her testimony even if I have not mentioned every matter covered by counsel in cross-examination. [ 53 ] Some of H.B.’s confusion was clearly on peripheral matters, and I understand such minor inconsistencies. For example, H.B. did not have a strong recollection as to where exactly the Accused would take her in the car when they would go for drives, except that they would go on “the trails,” and he would drive “into the woods” and then stop. She was certain that on one occasion they went to his cabin, and on one occasion they went to R.

Road but was not at all certain when each incident happened. [ 54 ] H.B.’s confusion regarding to which location they traveled on their various drives is not so troubling. It is easy to confuse details when there are multiple events. While H.B. is now 18 and was 16 when these events occurred, I accept that her recollection as to the precision of the locations are peripheral details and, standing alone, do not mean that her account of what happened is unreliable.

She is still a young witness, and I accord her some latitude in this regard. [ 55 ] However, H.B. was inconsistent on more significant matters. [ 56 ] For example, with regards to the first alleged sexual assault it was suggested to H.B. that what she had testified to at trial was different than what she had described to the police.

To the police, H.B. had stated she was “violently” sexually assaulted, that she had asked the Accused to take her home, but he told her he had no gas for his vehicle. [ 57 ] H.B. responded that he did sexually assault her and that sometimes she was stranded at his apartment for days. [ 58 ] H.B. was also confused about when particular incidents occurred in relation to each other. For example, at the preliminary inquiry, the incident on R. Road was the first incident in the car, but at trial, her evidence was this was the last incident.

This is a significant discrepancy in my view because this incident is the incident she described when the Accused hit her. [ 59 ] H.B. was also inconsistent as to when the last contact occurred. As stated, at trial, she testified that the last incident was in the car on R. Road in the summer of 2017, but at the preliminary and in her statement to the police, she stated that the last sexual encounter with the Accused was a couple of weeks before her birthday. H.B. could not explain why she now remembered the last encounter being in the summer of 2017.

She denied any encounter leading up to her birthday and testified she could not remember when the two stopped talking. While no one expects anyone to maintain a perfect recall, I am concerned with H.B.’s confusion over when she last spent time with the Accused. H.B.’s trial evidence was that by the end of the summer they did not see each other. But yet she told the police she saw the Accused two weeks before her birthday in November. It was only a couple of weeks later, in early December 2017 that H.B. contacted the police.

Given the closeness in time between the last encounter, if it occurred in November and going to the police, I am not satisfied there is any reasonable explanation for why H.B. now recalls the last contact being in the summer, or why there is any confusion.

[ 60 ] H.B. also seemed to confuse what actually happened between her and the Accused. At trial, H.B. testified that is was during the incident on R. Road that the Accused slapped her. But at the preliminary inquiry, it was at his home that the Accused slapped her. At the preliminary inquiry her description of what happened on R. Road did not include that the Accused had slapped her.

Given that H.B. described only one incident of there being a slap, her confusion as to whether this occurred at his home or in the car, and when it occurred, causes me concern as to her overall reliability of her account. [ 61 ] Further, counsel for the Accused pointed out to her that in her statement to the police she stated the Accused had never hit her. In my view, this is a major inconsistency.

The allegation of violence is H.B.’s explanation as to why she continued to have contact with the Accused, yet in her statement to the police, she stated the Accused never hit her. [ 62 ] It was also pointed out to her that in the statement to the police, she mentioned no threat and that she also told the police she could have decided to not continue seeing the Accused. [ 63 ] H.B. stated she was afraid of the Accused, but she would get into the car with him because that was how she would be able to buy drugs from him. She asserted she was afraid to not go with the Accused.

She also agreed that she chose to voluntarily go with the Accused. That H.B. admitted she could have chosen to not have continued seeing the Accused is inconsistent with here assertion that she continued to see the Accused because she was afraid of him. [ 64 ] H.B. also stated she was afraid, because the Accused threatened to have his dogs attack her if she told anyone about the sexual contact. I accept that if such statements were made, this could constitute a threat that could vitiate her consent to sexual contact.

But H.B. provided little detail about the alleged threats, most importantly as to when they were made. The Accused denies adamantly that he said this to her. [ 65 ] H.B. agreed she never told the police that the Accused threatened her. I find this a troubling omission.

While I take no issue with the general principle that additional details do not necessarily constitute an inconsistency, in these circumstances, where H.B. is relying on the alleged threats to explain why she continued to see the Accused, one might have expected this to have been disclosed at the time she made the complaint. [ 66 ] H.B. also stated one of the reasons she was afraid the Accused might be violent with her was because the Accused slapped her. But in her trial testimony, the slap occurred during the last incident.

This would not explain why she would be afraid of sexual encounters on earlier occasions. [ 67 ] Also troubling is that in considering the above, her narrative lacks an internal consistency; particularly as it relates to whether or not she consented to the continued sexual activity. I have no trouble accepting that a victim might continue to associate with their perpetrator. I must be careful to not stereotype how H.B. must behave. But the problem I have is that the reason H.B. stated that she continued to associate with the Accused is because she was afraid of him.

Yet the evidence of why H.B. harboured such fear is so weak, I cannot accept that evidence. [ 68 ] I then consider that in these circumstances, H.B. was not in a position of dependence towards the Accused; nor was he in a position of authority or trust towards her. While there was no doubt she purchased drugs from him, there was no suggestion she was dependent on him for supporting an addiction.

At most, it appeared to be a mutually convenient arrangement as Facebook acquaintances and friends. [ 69 ] For the above reasons, I have concerns with accepting the testimony of H.B. and I cannot accept her evidence as reliable. Her recall was poor, there were many inconsistencies, and while standing alone they may not cause concern, accumulatively they are troubling. Some of the inconsistencies were significant, in my view. I do accept her account as to what happened between her and the Accused.

THE APPLICATION OF THE PRINCIPLES IN W.(D.) [ 70 ] Given my assessment of the credibility of H.B. and the Accused, and keeping in mind the very high threshold of proof beyond a reasonable doubt, in applying the principles in W. (D.) to the circumstances, I must acquit the Accused. [ 71 ] While I do not believe the entirety of his evidence, I am left with a reasonable doubt not only by his evidence but by all the evidence. [ 72 ] I accept that there was sexual contact, as both the Accused and H.B. have so described.

But I am not satisfied beyond a reasonable doubt that the Crown has established the actus reus of the sexual offence that H.B. did not consent to any of the sexual contact, including the first incident.

I am left with a reasonable doubt not only because of the concern with accepting H.B.’s account given her overall poor recall and inconsistencies but also when her evidence is considered with all the evidence. [ 73 ] For this reasons, I find the Accused not guilty on the offence of sexual assault. [ 74 ] I am also not satisfied beyond a reasonable doubt that the Accused uttered threats towards H.B., I also acquit him of this offence. There is no reliable evidence on this allegation.

H.B. described a threat, but she could provide no details; particularly, as to when it occurred. [ 75 ] Finally, I am also not satisfied beyond a reasonable doubt that the Accused slapped H.B. H.B. was inconsistent as to when this was to have occurred and inconsistent that any violence occurred between she and the Accused. In light of the Accused’s consistent and generally credible testimony in which he denied such conduct, I am left with a reasonable doubt that an assault of this kind occurred.

CONCLUSION [ 76 ] For the above reasons, the Accused is acquitted on all charges. I am not satisfied the evidence establishes any of the alleged offences beyond a reasonable doubt. _____________________________ Frances J. Knickle Justice