R. v. K.A.F., 2019 BCPC 374

Citation: R. v. K.A.F. 2019 BCPC 374 Date: 20191217 File No: 253095-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. K.A.F. ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. HARRIS BAN ON PUBLICATION 486.4(2) CCC Counsel for the Crown: M. Myhre Counsel for the Defendant: L. Myers, Q.C. Place of Hearing: Vancouver , B.C. Date of Hearing: December 17, 2019 Date of Judgment: December 17, 2019 Introduction [ 1 ] THE COURT : T-X.N. alleges that the accused sexually assaulted her by inserting his fingers into her vagina.

The accused denies he touched T-X.N. in this manner and maintains he caressed her bottom, and that he reasonably believed that this was consensual.

T-X.N. and the accused testified wherein they provided their version of events. [ 2 ] This court must determine if the evidence proves beyond a reasonable doubt that the accused sexually assaulted T-X.N. in the manner alleged; thereafter and given that the accused acknowledged touching T-X.N.'s bottom, this court must consider if the accused honestly and reasonably believed that the touching was consensual. The Evidence Background [ 3 ] T-X.N. and the accused have known each other since high school. While in high school, they were not close and vaguely knew each other.

However, when they were in their mid-twenties they formed a close relationship. In this regard, they frequently spent time together and they became a mutual support system wherein they shared personal details and they supported each other during difficult times. [ 4 ] Examples of the closeness of their relationship includes, that they frequently saw each other, that the accused was the first male person who T-X.N. told about her pregnancy, and their sharing of personal information regarding suicide.

Naturally, as their relationship grew they began to share a common group of friends where all would socialize and be in frequent contact. T-X.N. [ 5 ] On June 2, 2018, T-X.N. and her good friend, C.H. and another friend, M., went out for the evening. Their first stop was a lounge where T-X.N. had five to six shots of hard liquor. She was uncertain what she was drinking, but believed she had Hennessy, Jack Daniels and Lemon Drops. The next stop was a club on Granville Street where T-X.N. had one or two bottles of beer. When she finished drinking T-X.N. was happily buzzed.

She testified she that had no intention of getting overly drunk or clumsy on this evening. [ 6 ] At approximately 3:30 a.m., T-X.N. and C.H. left the club and they crossed the street at which point C.H. went into a restaurant in order to use the restroom. T-X.N. waited outside and tried to locate a taxi. Before T-X.N. could locate a taxi, C.H. came out of the restaurant and said they needed to leave immediately because she had seen the accused.

The two then went around the corner, flagged down a taxi and started travelling to T-X.N.'s home. [ 7 ] While in the taxi C.H. informed T-X.N. that the accused was calling her and expressed that she did not know what to do. She believed that the accused was calling to hang out. Of note is, the accused was romantically interested in C.H., however, she did not share the same feelings. T-X.N. and C.H. knew about the accused's feelings and the lack of reciprocity. Against this background, T-X.N. hatched a plan whereby she would tell the accused that C.H. was heading back to her (T-X.N.'

s) place, and that he was invited to join them. The expectation being that the accused would arrive at T-X.N.'s home and C.H. would continue onto her residence without having to interact with the accused. With the above plan in mind, T-X.N. called the accused and on the third attempt, she reached him and told him that C.H. was coming to her home. The accused then said that he was coming over as well. After this call, the taxi dropped T-X.N. at her home and C.H. remained with the taxi and headed to her own residence. [ 8 ] Once at home, T-X.N. showered and changed. Thereafter she tried to make herself vomit.

She testified that she did this because she felt gassy which she blamed on the fact that she does not usually drink beer. At some point T-X.N. realized that she had missed a call from the accused so she went to her door and saw the accused standing there. T-X.N. let the accused in, and he quickly noticed that C.H. was not there. T-X.N. explained that C.H. was tired and that she went home. Thereafter the accused questioned T-X.N. about whether C.H. had gone home with a man, and he told her that he had seen T-X.N. and C.H. earlier in the evening with some men.

T-X.N. explained that she and C.H. are always with men when they go out. [ 9 ] At one point T-X.N. went into the bathroom so that she could make herself vomit again. The accused made fun of T-X.N. suggesting that she was drunk. When T-X.N. finished in the bathroom, she went into her bedroom and sat on the bed. The accused followed and he started asking questions about C.H. and other men. At one point T-X.N. asked the accused to pass her the garbage can that was at the foot of the bed.

The accused complied and at one point he was sitting at the end of the bed with his feet dangling over the side with his back to T-X.N. and he was at ninety degrees. [ 10 ] T-X.N. started spitting into the garbage can and the accused resumed teasing her about being drunk. When T-X.N. finished spitting up she passed the garbage can to the accused who placed it on the ground and he resumed questioning T-X.N. about C.H. T- X.N. became frustrated and she sunk into her bed, pulled her blanket up to her shoulders, turned onto her right side and she told the accused to sleep on the couches.

T-X.N. closed her eyes and she could hear the accused's foot tapping on the floor. She drifted off to sleep and after a matter of moments she woke up because she felt the accused's cheek on her face and him kissing her neck. According to T-X.N., she flipped over and said, "What the fuck are you doing?" The accused responded by pinning her down, inserting his fingers into her vagina and rotating them. T-X.N. froze momentarily and then she punched the accused in the face. He fell off the bed and his nose starting to bleed.

T-X.N. shouted, "Why the fuck." Her hands were up and the accused brought his hands up and protected his face. T- X.N. grabbed her golf club and she hit the accused on the left side around his legs. [ 11 ] T-X.N. was very confused and she kept screaming at the accused asking why he would do such a thing. The accused kept saying that he was sorry and that he fucked up. The accused backed into the living room-kitchen area and T-X.N. kept repeatedly asking him why he would do that to her. [ 12 ] Eventually the landlord came downstairs and asked T-X.N. if she was okay and she said that she was.

T-X.N. continued screaming and she tried to call C.H. but C.H. did not answer. T-X.N. tried calling her boyfriend and again there was no answer. T-X.N. was confused, angry, and hurt and she started breaking things in her suite. Throughout T-X.N. yelled at the accused. When she was not breaking things she continuously tried to call C.H., her boyfriend, and others but no one answered. [ 13 ] At one point while T-X.N. was breaking things, the accused pointed to his head and said, "Just do it." T-X.N. interpreted this as meaning that he wanted to end his life.

Even though T-X.N. was angry at the accused she was also concerned for him. She noticed that

there was broken glass near him and she thought he may try and cut himself so she kicked the broken pieces away. [ 14 ] Throughout, T-X.N. tried to reach someone by phone and while doing so she inadvertently activated the voice-recording feature on her phone. The recording was played in court and a disk was filed as Exhibit 3. The recording begins with T-X.N. asking the accused what his problem is and why he hates himself. Thereafter there is a brief exchange about the accused wanting to end his life.

At one point T-X.N. explained to the accused that if anyone else had done what he did then she would have broken his leg. At the end of the recording T-X.N. tells the accused that what he did was rape, and he responds by telling her to call the police. [ 15 ] There were then further exchanges where T-X.N. demands to know why he did what he did, and the accused responds by indicating that he already told her, and at line 62 the accused states, "I thought you were a fucking" dot-dot-dot and T-X.N. interrupts him and asks what he thought.

The accused does not finish his response because T-X.N. states, "I was passed the fuck out," and states his name. The recording ends almost immediately thereafter. [ 16 ] T-X.N. was questioned about the recording and she explained that she was holding the golf club during the discussion and she identified some of the background noises as her hitting things with the club. T-X.N. explained that her questions were directed at wanting to know why the accused would hurt her when he was such an important person to her.

Finally, T-X.N. agreed that they were both crying and that she was angry. [ 17 ] At 6:20 a.m., T-X.N. called her brother, D.N. and asked him to come over. While waiting for him, T-X.N. watched the accused and made it clear that she did not want him to leave because she was concerned that if he left that he would end his life. [ 18 ] D.N. arrived within ten minutes of the call and when he arrived, T-X.N. was behind the kitchen table holding the golf club and the accused was on the couch.

When T-X.N. saw her brother, she started screaming that the accused had touched her and she wanted to beat him, and that she did not want the accused to kill himself. [ 19 ] D.N. took a bench and sat by the accused. He then started talking to the accused asking him why he hated himself, what was going on and why did he want to kill himself. As this was going on, T-X.N. tried to reach her boyfriend, C.H., and others. At one stage, T-X.N.'s brother started hitting the accused. The accused did not fight back rather he covered up and fell over to his side. T-X.N. believes that the accused's mouth was bleeding.

D.N. then told T-X.N. that they were going to call the police. He indicated that they had tried doing it T-X.N.'s way by calling their friends but there had been no answer. Ultimately, D.N. called the police. [ 20 ] The police arrived shortly after the call and they arrested the accused. T-X.N. then gave a brief statement and according to her when she did this, she was “checked out.” She wanted things over. She testified that the statement was pinpoint vague and to the point. [ 21 ] On June 5, T-X.N. went to the police station and she provided a video-recorded statement.

During this statement, T-X.N. lied to the police by stating that C.H. was inside the home when things occurred. T-X.N. testified that she lied because she was worried about her boyfriend's feelings and that he would not have liked her standing up for C.H. [ 22 ] During cross-examination, T-X.N. denied asking C.H. to lie and state that she was at T-X.N.'s home during the incident. Rather, she testified that she told C.H. that it would be better if she said that she (C.H.) was in the home during the incident. T-X.N. explained that she did not want her boyfriend being mad at her.

T-X.N. acknowledged that she only disclosed her lie when she was being interviewed by the Crown. T-X.N. was questioned about a man, S., having been with her and C.H. when they were out. T-X.N. recalled S. at the lounge. She does not recall seeing him on the street.

She disagreed with the suggestion that S. and C.H. were affectionate with one another, nor does she recall S. being in the taxi with her and C.H. [ 23 ] During cross-examination, counsel for the accused suggested to T-X.N. that when they were in the bedroom that they were laying on the bed and she put her leg over the accused and that moment he had touched her bottom and that is what angered her. T-X.N. rejected this suggestion and pointed out that the accused was on top of her pushing her down.

T-X.N. agreed with her statement wherein she first asked the accused why he did what he did and he responded by throwing his hands up and saying he thought she had wanted it and it was after this exchange that T-X.N. had grabbed the golf club and hit the accused. On the issue regarding her lying to the police, T-X.N. denied asking C.H. to lie by saying that she was in the house. Rather, she told C.H. that her boyfriend would be upset if he found out and that it would be better if she told him that she was there.

She acknowledged telling C.H. that she had told the police that C.H. was present in the home at the time of the events. D.N. [ 24 ] D.N. is T-X.N.'s brother and in the early morning of June 3, 2018, D.N. received a call from his sister. She sounded distressed and upset and she asked him to come to her home as soon as possible. D.N. got dressed and went to her residence. When D.N. arrived, T- X.N. was standing in the kitchen and the accused was on the couch. T-X.N. explained how the accused hurt her; that she was confused and upset and how much she loved the accused.

She went on to describe how much pain she was in and how she wanted to hurt him. D.N. tried to remain composed. On the one hand, his sister was very upset, yet on the other hand, she expressed how much she loved the accused and how she was concerned that he would take his life. [ 25 ] D.N. tried to assess the accused's mental state and he asked him several questions. When he asked the accused why he did it the accused responded that he fucked up. Thereafter D.N. lost his composure and he started hitting the accused in the head and body. The accused keeled over and he started coughing up blood.

D.N. realized that he had gone too far and he called the police. He then sat three to four metres away and waited for the police to arrive. The Accused [ 26 ] The accused is 30 years old. He works part-time and lives with his mother. C.H. is one of the accused's best friends. He has known her for four years and they have talked about the charges against him. [ 27 ] On June 2, 2018, the accused had gone downtown with a few of his friends. They first went to the Venue Nightclub where he had

two drinks. Upon leaving the Venue, the accused went to the Edison where he had five shots of alcohol over three hours. He left the Edison at approximately 2:55 a.m. and he made his way to a local restaurant. While on his way to the restaurant, the accused bumped into C.H., T-X N. and a male who he did not know. The group exchanged greetings and separated. The restaurant was full so the accused went to a local eatery. On his way to the eatery he called C.H. but she did not answer, so he called T-X.N. He asked T-X.N. what their plans were and she said that they were just going back to her place.

Shortly thereafter, T-X.N. called the accused but he was eating so he told her that he would call her back. Before he hung up T-X.N. invited the accused back to her home. The accused accepted the invitation and he testified that it was not his intention to pursue C.H. rather his plan was to just hang out. [ 28 ] The accused acknowledged having a crush on C.H. and he testified that it was his expectation that she would not be at T-X.N.'s because he had seen her with a man earlier. According to the accused, T-X.N. never mentioned that C.H. was would be at her place.

When the accused finished eating he texted T-X.N. and told her that he was on the way. When he arrived, T-X.N. opened the door and let him in. She then went straight to the bedroom and said let's go. The accused thought that this was slightly unusual because they typically socialized in T-X.N.'s living room. In the bedroom, T-X.N. sat on the corner of the bed and the accused sat with his back to the wall with his feet toward the end of the bed. They spoke for about ten minutes. At one point T-X.N. grabbed the garbage can and tried to vomit into it. The accused asked her if she was drunk.

T-X.N. spent 30 to 40 minutes trying to vomit and when she was finished she said that she was tired. [ 29 ] The accused stated that he was going to head home and T-X.N. told him to stay and she rolled toward him and placed her leg over the accused's lower body. The accused responded by grabbing T-X.N.'s buttocks. He touched it for about a half a second when T- X.N. got up and headed into the washroom. The accused knocked on the door and T-X.N. opened the door and punched him in the face. T-X.N. then asked the accused why he touched her.

The accused was confused about what she was referring to and it was at this stage that T-X.N. armed herself with a golf club. She then started hitting things and she hit the accused in the head. He fell onto the couch and T-X.N. asked him why he was suicidal. The accused testified that he was hit three or four times with a golf club that he was out of it and that could not see. He was bleeding and his ears were ringing. [ 30 ] He recalled T-X.N. calling her brother, D.N., and him arriving shortly thereafter.

He recalled D.N. asking him questions and it appeared to the accused that D.N. did not like the answers he received which resulted in D.N. beating him. As for the comment that he fucked up, the accused testified he was referencing touching T-X.N.'s buttocks. He denied ever placing his hands down her pants. As for why he touched T-X.N., the accused testified he thought he had her permission. His thought was based on her putting her leg on top of him; the fact that she had been friendly with him, and his belief that T-X.N. and her boyfriend were about to break up.

The accused denied expecting to see C.H. at T-X.N.'s that morning. He testified that he had seen her earlier in the evening with another man. The accused maintained that T-X.N. never said that C.H. would be at her home. The accused again acknowledged being romantically interested in C.H., but he denied asking T-X.N. about C.H. [ 31 ] In cross-examination about the details involving the beating, the accused testified that it felt like the beating occurred over an hour.

He further testified that during while being beaten he would go into his defensive mode and cover up and D.N. would hit him in sessions over this hour. He originally testified to three sessions and later he testified that there were three to four sessions. Between the beatings D.N. asked the accused questions related to why he hated himself. [ 32 ] The Crown questioned the accused about whether he could have left the residence and the accused responded that T-X.N. had a golf club and he did not know if she was going to hit him if he tried to leave.

Similarly, he was concerned that D.N. would hit him if he tried to leave. The accused agreed that when D.N. arrived he spoke to him in a calm manner and that he was expressing concern. The accused responded by pointing out that D.N. could have punched him if he tried to leave. The accused was challenged on this and he acknowledged that D.N. had not threatened him. However, he noted that D.N. was staring at him and he felt that if he left that it would be rude and it might trigger an assault.

The accused acknowledged that he could have walked out before D.N. arrived, but he pointed out that he was bleeding; that he did not have his wallet or his phone, and that he did not know how he was going to get home. He also testified that he really did not think about his options at that particular time. [ 33 ] The Crown also cross-examined the accused over the positioning on the bed. In this regard, the accused testified he was sitting with his right leg laying flat on the bed and parallel to T-X.N.'s waist and that his left leg was dangling over the bed.

He then described how he reclined down as they were talking and that T-X.N. cuddled him by placing her right leg and right arm over him. His view was that this a romantic encounter because earlier in the evening T-X.N. had given him a hug which was longer than normal, that she had been friendly and that she had told him to come into the bedroom. The accused then agreed with the suggestion that without any lead-up that T-X.N. rolled her body on top of his. C.H. [ 34 ] C.H. and T-X.N. have known each other for a number of years.

At one point they were best friends wherein they would have regular contact, support each other and share personal information. [ 35 ] On June 2, 2018, a friend of C.H.'s was in town and they decided to go to some clubs downtown. C.H. invited T-X.N., as well as B. who was a mutual friend. The group made their way to a lounge where they met up with other friends including C.H.'s new boyfriend S. While at the lounge, C.H. had about ten shots of liquor.

She believes that T-X.N. was matching her drink for drink, with T-X.N. sitting out one or two rounds. [ 36 ] After a while the group made their way to a club on Granville Street where they obtained wristbands and sat in the VIP section. The VIP

section is an area within the club where there is table service with the waiters pouring the drinks from bottles. Draft beer is not available in this area and the only type of beer available is bottled beer. The group remained in the VIP area until 2:30 to 3:00. While there, they were drinking hard liquor which was Hennessy or Vodka. C.H. has a specific memory that T-X.N. did not have any beer. She testified that they were seated close to each other and that they did not separate. When C.H. left the club she was with T-X.N. and S.

C.H. needed to use the bathroom so they crossed the street and while on the street C.H. saw the accused. They exchanged greetings and C.H. is quite confident that T-X.N. and S. saw the accused.

[37] C.H. was aware that the accused had a crush on her and although she was not concerned about him seeing her with S, she wasrespectful of his feelings. C.H. left the accused on the street and she went to use the bathroom. On her return, the accused was gone.C.H., S. and T-X.N. then took a taxi to T-X.N.'s home. While in the taxi, T-X.N. invited C.H. and S. to her home but they declined asC.H. wanted to go to her own home.

C.H. was certain that T-X.N. knew about S. being in the taxi because she invited him into her place. [38] Prior to arriving at T-X.N.’s home, C.H. realized that she had missed a call from the accused. She suspected that he was callingto hang out, and she told T-X.N. about the missed call. C.H. did not call the accused back however, she heard T-X.N. call the accusedand invite him to her place. [39] C.H. first learned about the allegations later on June 3 when she noticed that she had missed 18 calls from T-X.N. C.H. tried tomeet up with T-X.N. but was unsuccessful.

At some point, they had a telephone conversation where T-X.N. told her that if anyone askedthat she was to tell them that C.H. was at T-X.N.'s house. C.H. told T-X.N. to tell the truth and that it does not make a difference. [40] During cross-examination, C.H. confirmed she had never known T-X.N. to break her personal items and she acknowledged thatthe relationship between T-X.N. and the accused broke down after June 3, 2018. Analysis The Law [41] The accused is presumed innocent.

This presumption remains throughout and can only be displaced if I am satisfied beyond areasonable doubt that the Crown has proven each element of the offence beyond a reasonable doubt. Proof beyond a reasonable doubt isnot proof to absolute certainty; rather, it is proof to a high standard and beyond any doubt that is reasonable.

A conviction must not beentered if I suspect that the accused is guilty or even if I think the accused is likely guilty; rather, a finding of guilt may only occur if theevidence satisfies me to the very high standard of proof beyond a reasonable doubt. [42] In considering the whole of the evidence, the court must consider all of the evidence collectively, viewed as a whole and not in apiecemeal fashion.

In considering the evidence it is important to recognize that it is not a credibility contest between the accused and T-X.N.; in this regard, the two versions are not pitted against one another, rather all of the evidence must be considered. [43] In accordance with the ruling of the Supreme Court of Canada in R. v. W.D., (SCC), 1991 1 S.C.R. 742 at 757, Iinstruct myself accordingly. First, if I believe the evidence of the accused raises a defence I must acquit. Second, if I do not believe theevidence of the accused but I am left in a reasonable doubt by it I must acquit.

Third, even if I am not left in a doubt by the evidenceraised by the accused I must ask myself whether on the basis of the evidence that I accept I am convinced beyond a reasonable doubt thatthe evidence establishes the accused's guilt. [44] Do I believe the accused's evidence? I accept the accused's evidence regarding the background prior to arriving at T-X.N.'shome. I find it unsafe to accept his evidence regarding what transpired in the home.

My rejection is based on inconsistencies and hisembellishment while testifying. [45] As for the inconsistencies, the accused's evidence changed regarding his body position and T-X.N.'s position. He originally hadhimself in a seated position, and on cross-examination, this moved to him almost lying down. His evidence also changed when hedescribed T-X.N.'s actions. During direct examination, he described her as putting his leg over him. Yet, during cross-examination itevolved from a leg to include a leg and an arm and he called this cuddling.

This positioning eventually evolved to him ultimatelyagreeing that she rolled on top of him. The accused’s changes in his testimony is very concerning, particularly given the relationship tothe positioning and the allegations. [46] As for the embellishment, I note his comments about the beating he received from D.N., specifically his time estimates and thenumber of beating sessions. A further embellishment was the description of the hug he received from T-X.N. when he encountered heron the street. In direct examination, he described it as a hug and yet during cross-examination he described it as a long hug.

Given that ahug played into his stated belief that T-X.N. was consenting to him touching her I would have expected a fulsome description of the hugduring his direct examination and not for him to develop it during cross-examination. [47] In conclusion, I do not believe the accused's evidence. Does the accused's evidence leave me in a reasonable doubt? No. Portionsof the accused's evidence that I accept do not leave me in a reasonable doubt.

The portions that I accept are collateral matters such aswhat he did that evening, the background between himself, T-X.N., and C.H. and what transpired once he was seated on the couch. Forthe reasons stated above, I reject his description of what transpired when he was in T-X.N.'s bedroom. [48] On the basis of the evidence that I accept, am I convinced beyond a reasonable doubt as to the guilt of the accused? Thisconsideration requires me to consider all of the evidence that I accept and determine if the Crown has proved the accused's guilt beyonda reasonable doubt.

In my view, the evidence falls short of proving the allegation beyond a reasonable doubt. I say this accepting that theviolence and the audio recording support a finding that something happened between the accused and T-X.N.

However, T-X.N.'sevidence is such that it fails to satisfy me beyond a reasonable doubt as to what transpired, and therefore, I am unable to conclude beyonda reasonable doubt that the elements of the offence are established. [49] The first area, which cause me significant concern, is T-X.N.'s lie to the police, her explanation for the lie, and her lack ofcandour in saying she did not tell C.H. to lie. Specifically, T-X.N. testified that she lied to the police because she did not want herboyfriend to know that she had helped C.H. The difficulty I have with her explanation is twofold.

First, how would her boyfriend knowwhat she told the police? Second, according to her evidence she tried calling her boyfriend immediately after the event and while theaccused was still at her place. As such, and at that moment, she had no difficulty in him learning the truth, and yet for reasons unknownthis appears to change when she was speaking with the police. [50] A further concern is her evasiveness when asked about her asking C.H. to lie. When questioned on this subject, T-X.N.emphatically denied asking C.H. to lie.

However, cross-examination revealed that T-X.N. suggested to C.H. that she lie, not that she

asked her to lie. In my view, T-X.N. was being less than candid when she drew this fine distinction. The reality is she tried to persuade C.H. to lie. [ 51 ] A further concern is T-X.N.'s description of events. In this regard, her evidence lacked details such that I had difficulty appreciating how the events complained of were possible. Specifically, she testified that she was under the covers and had them pulled up when she felt kisses, at which point she rolled to confront the accused. On her evidence, he then pinned her and put his hands down her pyjama bottoms.

Her evidence fails to explain how the accused managed to get his hands past the covers when they were pulled up as earlier described by T-X.N. Then and on cross-examination, T-X.N.'s evidence changed in that she described that the accused got on top of her and pinned her down.

Given the positioning described during cross-examination and the positioning of the covers, without greater description, I have difficulty in understanding how the actions complained of were possible. [ 52 ] A further concern with T-X.N.'s evidence involves that she had some propensity to lie, notably her lie to the police and her planned and orchestrated lie to the accused, when she falsely told him that C.H. would be at her home.

Additionally, her explanation for providing the lie to the accused made no sense given that C.H. was just heading home, and on T-X.N.'s evidence C.H. was going home alone thus there was no reason to lie to the accused. [ 53 ] A further area of concern is the inconsistency between C.H. and T-X.N. over the presence of S. and the type of alcohol consumed. It is an unsolved mystery over why T-X.N. did not recall the presence of S. It may be owing to her alcohol consumption, it may be owing to the events, it maybe some other reason or it may be that S. was not present.

Given that I accept C.H.’s evidence, I find this later point unlikely. [ 54 ] In conclusion, the collective problems with T-X.N.'s evidence creates a situation where I cannot say that she lied in court; rather, all that I can say is that there are significant issues with her evidence such that it cannot be relied on to establish the elements of the offence beyond a reasonable doubt.

Once again, this does not mean that I do not suspect that the accused is guilty; rather, it means that the evidence is of poor quality such that I cannot be satisfied beyond a reasonable doubt. [ 55 ] As for the accused's acknowledgment that he touched T-X.N.'s bottom, in my findings regarding T-X.N.'s evidence and assuming it was a touch over T-X.N.'s pyjama bottoms, I find that there is some evidence to conclude that the accused reasonably believed, albeit erroneously, that there was consent to this activity. For the above reasons the charge is dismissed. (REASONS CONCLUDED)