R. v. V.R.R.R., 2023 MBKB 136

Date: 20230919 Docket: CR 21-02-02212 (Brandon Centre) Indexed as: R. v. V.R.R.R. Cited as: 2023 MBKB 136 COURT OF KING'S BENCH OF MANITOBA (General Division) B E T W E E N: ) HIS MAJESTY THE KING, ) Caroline Lacey ) for the Crown and ) ) V.R.R.R., ) Hailey Allardyce ) for the accused accused. ) ) ) ) Judgment Delivered: ) September 19, 2023 RESTRICTION ON PUBLICATION: Pursuant to s. 486.4 of the Criminal Code , any information that could identify the complainant or the accused shall not be published in any document or broadcast or transmitted in any way in proceedings in respect of this offence. LEVEN J.

Summary [ 1 ] The accused was charged with sexual assault and sexual interference. The complainant was his daughter, who was 13 at the time of the offences (2017). The accused testified. The trial was held on May 2, 2023 to May 4, 2023. For reasons explained below, I find the accused guilty as charged. Facts [ 2 ] This is not a comprehensive recitation of all evidence and argument; it is a concise

summary of certain important matters. [ 3 ] Counsel agreed upon the court’s jurisdiction, the dates of the alleged offences, and the identity of the accused. [ 4 ] The complainant was born in 2004 in Central America, and came to Canada when she was about six. Her biological mother remained in Central America. The complainant lived in Brandon with her father (the accused) and her stepmother (“the Wife”). The accused owned a small business, and the complainant sometimes worked in the small business. She had three younger sisters/stepsisters in Brandon. The oldest of the sisters (“J”) was born in 2008.

[ 5 ] By way of verbal shorthand, I will call the accused and the Wife “the Parents”. It is undisputed that the complainant and the Parents had disagreements about the complainant’s messy bedroom, the complainant’s school attendance, the complainant’s friends, the complainant’s alleged smoking, the complainant’s alleged stealing money from the Wife’s purse and from the small business, and the alleged marijuana use by the complainant’s friends. Different witnesses gave different accounts of these matters.

The allegations [ 6 ] The complainant testified that, at least three times in 2017, the accused sexually assaulted her while she lay in her bed at night. He touched her breasts (under her clothing) and he inserted his fingers into her vagina. She did not remember the exact time of night that the incidents occurred. She was not asked and did not offer any comments about whether the incidents happened on weekdays and/or weekends. [ 7 ] The complainant described the first incident. She was sharing a bed with J, who was a very heavy sleeper. No one else was sleeping in that bedroom.

The accused entered the bedroom in the middle of the night. The complainant woke to find the accused touching her breasts under her shirt (she slept in a loose-fitting shirt). The accused told the complainant to be quiet. The complainant tried nudging J, but J kept sleeping. [ 8 ] The accused tried inserting his hand between the complainant’s legs. The complainant kept her legs crossed. At that point, the accused’s other hand was over the complainant’s mouth. When the accused realized that the complainant was not going to allow him to spread her legs, he gave up and left the room.

The complainant estimated that the incident took about 15 minutes. J kept sleeping, and the complainant told no one at the time. [ 9 ] The second incident was also at night. The complainant was sharing a bed with J. No one else was in the room. The complainant woke up to find that her bottoms (she slept in loose, comfortable shorts) had been removed, and the accused’s fingers were in the complainant’s vagina. The accused’s other hand was on the complainant’s breast, but he moved this hand to cover the complainant’s mouth. He whispered in the complainant’s ear and asked her if what he was doing felt good.

The incident lasted about 15 minutes. J did not awake. The complainant told no one at the time. [ 10 ] The third incident happened a couple of weeks later. The complainant had moved to a different bedroom. She was no longer sharing a bed with J. The complainant was sleeping alone in the room. She awoke at night to find the accused’s fingers in her vagina and the accused’s other hand over her mouth. The accused whispered in her ear and asked her if it felt good. The accused ejaculated onto the blanket that was on the bed. The complainant described the blanket in detail.

She did not remember what happened to the blanket later. After ejaculating, the accused left. The incident took about 30 to 35 minutes. The complainant told no one at the time. [ 11 ] The complainant did not allege that the Wife witnessed any of the incidents. [ 12 ] The accused testified with an interpreter, and flatly denied that he had ever done or tried to do anything at all sexual with the complainant. He said he never went into the complainant’s bedroom while the complainant was sleeping, for any reason. [ 13 ] The Wife testified with an interpreter, and asserted that she believed her husband.

Other details: the complainant [ 14 ] The complainant testified that she first spoke to the police about the sexual assault in 2020 (when she was about 16). [ 15 ] When asked if she ever stole $200 from the Wife’s wallet, she replied that the Parents accused her of stealing this money, but that the money was never found on her. [ 16 ] The complainant testified that, because of all their conflicts, the Wife kicked her out of the house on more than one occasion. [ 17 ] The complainant admitted that sometimes she would skip school. She said she might skip one or two classes during a school day.

She admitted that sometimes she would skip school and spend an entire afternoon playing pool. She admitted that, when the Parents would confront her about skipping school, sometimes she would not be completely honest because she did not want to be in trouble. [ 18 ] The complainant testified that, at some point in 2017, the Parents stopped sharing a bedroom. The accused would sleep alone in one bedroom, and the Wife would sleep with the complainant’s sisters in another bedroom.

Although the complainant would go to bed earlier than the accused, the complainant would see the accused in the morning alone in a separate bedroom. [ 19 ] The complainant said that the door to the bedroom that she shared with J had a lock on it, but that the lock was not fully effective. If you pushed hard on the locked door, it would open. [ 20 ] On cross-examination, the complainant was asked about the alleged second sexual assault. At trial, she said it lasted about 15 minutes. However, she told police that it lasted about 35 minutes.

When cross-examined about this, she said, “I don’t know, this is a very long time ago.” [ 21 ] The complainant testified that the accused hit or beat her. She was not asked and did not offer any details (e.g. whether he punched her).

[ 22 ] The complainant was asked if she ever brandished a knife towards the accused. She said no. She was then presented with two undated photos apparently taken by the accused. One photo shows the complainant holding her hand behind her back as if hiding something. The other shows the complainant sitting down and apparently holding a knife in her hand. After seeing the photos, she was again asked if she ever pulled a knife on the accused. She said she had no specific memory of this but that, if she did pull a knife, it would have been to defend herself because the accused sometimes beat or hit her.

Other details: the accused [ 23 ] The accused said that the complainant skipped a lot of school. This became worse as she became older. The Wife put an application in the complainant’s cell phone allowing the Wife to track her. The accused did not understand such applications; he relied on the Wife. On one occasion, the complainant’s principal phoned home to say that the complainant was not at school. The Wife tracked her and told the accused where to find her. He found her downtown and brought her home.

He was not asked and did not offer any information about what the complainant was doing (e.g. eating fast food with friends). [ 24 ] The accused said the Wife did the cash reconciliations at the family small business. The Wife told the accused that, sometimes when the complainant worked at the small business, the cash did not reconcile. The accused himself did not do the reconciliations. [ 25 ] The accused was asked about the time that $200 went missing from the Wife’s wallet. The accused testified that the $200 was taken from a dresser.

He did not see the complainant take it, but he was sure that she did take it. He said that, “as a father, you feel something…” He was not asked and did not offer any time frame for the incident. [ 26 ] The accused denied ever hitting the complainant. [ 27 ] The accused denied the suggestion that he and the Wife ever slept in separate bedrooms. However, he said that he sometimes stayed up later than the Wife while watching television. He would wake up and find the Wife sleeping with their younger daughters in the bed that he shared with the Wife.

Sometimes, he would just let them sleep, and he would go sleep on the sofa. He mentioned that often this was on Saturday nights. He was not asked and did not offer any details about the time frame (e.g. before or after 2017). [ 28 ] The accused was asked about the lock on the door of the complainant’s bedroom. He denied that it would open if one pushed hard on the door. However, he admitted that he never actually tried to do this. [ 29 ] The accused was asked about the blanket that the complainant had described.

He said he had no recollection of that particular blanket. [ 30 ] The accused testified that, on one occasion, the complainant grabbed a kitchen knife during one of their disagreements. He did not recall when the incident happened (e.g. before or after 2017). The Crown tendered two photos taken by the accused. One showed the complainant holding her hand behind her back as if hiding something from view. The other showed the complainant sitting and holding what appeared to be a knife. The accused testified that he found these photos on an old cell phone of his.

He said he took other photos, but was unable to find them on his cell phone. He testified that the complainant never actually attempted to cut him with the knife. The incident ended when the accused left. He testified that there were no witnesses to this confrontation. Other details: the Wife [ 31 ] The complainant never alleged that the Wife witnessed the alleged sexual assaults or became aware of them before 2020. [ 32 ] The Wife said that sometimes she did the cash reconciliations at the small business, and sometimes the accused did them.

She did them more often. [ 33 ] The Wife read the complainant’s report cards. They showed that the complainant skipped at least one period every single school day. [ 34 ] The Wife did the laundry and washed the complainant’s clothes. While doing so, she found cigarettes in the clothes. Once she found an almost-full pack. [ 35 ] The Wife testified that, on one occasion, $200 went missing from her wallet. She said she found the missing $200 in the complainant’s bag. She said the accused was present when the $200 was found. [ 36 ] The Wife denied that the complaint had ever been kicked out of her home.

She did run away on three occasions, between 2014 and 2016. [ 37 ] The Wife testified that the accused never slept anywhere other than in her bed with her. There were times when he fell asleep on the sofa, but he always woke up and moved to the bed he shared with the Wife. Criminal Code [ 38 ] Relevant sections of the Criminal Code , RSC 1985, c C-46 (the “ Code ” ) include: Sexual interference 151 Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years

(

a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimumpunishment of imprisonment for a term of one year; or (

b) is guilty of an offence punishable on

summary conviction and is liable to imprisonment for a term of not more than two yearsless a day and to a minimum punishment of imprisonment for a term of 90 days. Assault 265

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (

b) he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believeon reasonable grounds that he has, present ability to effect his purpose; or (

c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs. Application

(2) This

section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causingbodily harm and aggravated sexual assault. Case Law [39] Both counsel referred to R. v. W.(D.), (SCC) (“W.(D.)”), which was a sexual assault trial in which the accusedtestified. The court outlined a useful approach for analyzing the credibility of an accused and the principle of reasonable doubt. At page758, the majority set out the framework for instructing a jury: First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [40] Later cases have elaborated upon W.(D.). R. v. Menow, 2013 MBCA 72 was also a sexual assault case involving a W.(D.)analysis.

At the appeal stage, the accused argued that the trial judge had erred by considering the evidence of the complainant and of awitness in concluding that the accused was not credible. At paragraph 23, the appeal court observed: … To assess the evidence of the accused in a vacuum ignores the fact that the whole purpose of the trial is to determine whether or notthe accused is guilty… It is impossible for an accused’s evidence to be considered without a factual or contextual backdrop for thecharge itself… [41] In R. v. Vuradin, 2013 SCC 38 , the court considered the W.(D.) framework.

At paragraph 21, the court pointed out: The order in which a trial judge makes credibility findings of witnesses is inconsequential as long as the principle of reasonable doubtremains the central consideration.

[42] The Crown cited R. v. Perrone, 2014 MBCA 74 . At paragraph 25, the court quoted a

summary from an Ontariodecision of the difference between credibility and reliability. [43] The Crown cited R. v. A.L.D., 2019 MBQB 77. At paragraphs 74-76, the court commented about child witnesses. The courtobserved that: [74] … a child’s inability to remember certain details will not and should not automatically discount the child’s credibility or reliability. … [76] The testimony of a child witness should be evaluated on a common-sense basis.

The same exacting standards as imposed on anadult should not be expected of a child given the fact that such a witness may be unable to recount details with the same exactingprecision. The context of the evidence a child witness requires attention to factors such as age, an ability to understand questions andrespond to them, an ability to observe and recall as well as an appreciation of the responsibility of honesty.

A young witness’sintelligence, behavior and experience must always be considered… Argument [44] Defence counsel argued that the accused should be believed when he testified that he never did anything of a sexual nature withthe complainant. In any event, the credible testimony of the accused raised a reasonable doubt about the allegations against him.

Finally, the evidence as a whole (including the testimony of the complainant) raised a reasonable doubt about the charges against theaccused. [45] Defense counsel pointed out that the complainant told the police that one of the alleged assaults went on for about 35 minutes,but she then told the court that it took about 15 minutes. This was an inconsistency. [46] Defence counsel observed that, when asked about pulling a knife on the accused, the complainant initially denied having doneso.

Only when confronted by the photos did she admit that, although she had no recollection of the knife incident, she might havebrandished a knife to defend herself, because the accused beat or hit her. Counsel argued that this speaks to her credibility. [47] Defence counsel argued that it is difficult to accept the complainant’s claim that J, who was sleeping beside the complainantduring two of the assaults, never woke up.

This speaks to the credibility and/or reliability of the complainant. [48] Defence counsel agreed that, if the complainant’s version of events was 100% accurate, sexual assaults and sexual interferencedid occur. [49] The Crown argued that the accused was not believable in respect of the allegations; that his evidence did not raise a reasonabledoubt; and that the evidence as a whole did not raise a reasonable doubt in respect of the charges against the accused. [50] The Crown pointed out that the complainant was about 13 at the time of the alleged offences.

The court should consider herevidence in light of what the courts have said about child witnesses. Decision [51] Although counsel did not object to each other’s questions on the grounds of relevance, some of the questions put to variouswitnesses about the complainant’s behaviour were marginally relevant at best. I appreciate what defense counsel was trying to argueabout the complainant’s motives. In very simple terms, she had frequent, severe disagreements with the Parents about various issues(from her messy bedroom to allegations of stealing $200).

She may have been very unhappy in the home and wished to get away fromthe home. The implication is that she might have lied about the alleged sexual assaults in order to get away from the home where shewas so unhappy. In theory, a further implication might be that a witness who would lie about stealing $200 might lie about other matters. [52] To be blunt, I have trouble following the notion that the existence of routine arguments about things like a messy bedroom mightsomehow be relevant to the question of whether a child might have invented false allegations that her father repeatedly sexually assaultedher.

Squabbles about children’s messy bedrooms are hardly noteworthy. False sexual assault allegations against one’s father are in adifferent universe altogether. [53] It is common ground that, at some point in the years before 2020, the complainant was unhappy and had a poor relationship withthe Parents. However, these facts alone are not particularly helpful in assessing the charges against the accused.

It is at leasttheoretically possible that her unhappiness might have given her a motive to falsify allegations against her father. (I am not saying that Ibelieve this to be the case.) On the other hand, it is possible that the sexual assaults occurred just as the complainant described them, andthese assaults were a prime factor in ruining the complainant’s relationship with the Parents. [54] Crown counsel did not ask the complainant how the sexual assaults changed her feelings about the Parents. [55] In any event, I will focus on matters that are undeniably relevant.

I will also bear in mind what courts have said about thetestimony of child witnesses.

[ 56 ] Firstly, it is not necessary to make conclusive findings about the reliability of the Wife’s evidence. She contradicted the accused on a number of collateral matters. She said the accused was present when she found the missing $200 in the complainant’s bag. The accused said he never saw the complainant steal the money but, as a father, he had a feeling that she stole it. The Wife said that accused always slept in her bed (for at least part of every night). The accused said he occasionally spent the whole night on the sofa.

It is possible that the accused had a more reliable memory than the Wife. [ 57 ] No one alleged that the Wife witnessed the sexual assaults. Therefore, I will focus on the testimony of the accused and of the complainant. [ 58 ] To apply W.(D.) , I did not believe the accused. Furthermore, I did not find that the evidence of the accused raised any reasonable doubts about his guilt. Finally, I did not find that the evidence as a whole (including the evidence of the complainant) raised any reasonable doubts about the guilt of the accused.

Opportunity [ 59 ] To begin, even on his own evidence, the accused might well have had the opportunity to commit the alleged offences. The Wife testified that the accused never slept a whole night alone. The accused said that he sometimes did (generally on Saturdays when he fell asleep alone on the sofa). It is obvious that the accused would be in a better position than the Wife to accurately testify about this matter. I conclude that the accused did, at least sometimes, sleep a whole night alone. [ 60 ] No one asked the complainant whether any of the alleged assaults might have occurred on Saturdays.

Therefore, there is at least a possibility that the accused might have committed the assaults on nights when he was sleeping alone on the sofa. If so, he could have entered and exited the complainant’s bedroom without alerting the Wife. [ 61 ] It is also possible that, on nights when he did sleep in the Wife’s bed, the accused got up quietly and managed to come and go without waking the Wife. The accused testified that he sometimes had to get up very early for work.

He said that, when he got up very early, sometimes the Wife would wake up and sometimes she would not. [ 62 ] Finally, the complainant testified that there was a period of time when the accused and the Wife were actually sleeping in separate bedrooms. They both denied this. However, even if I give the accused the benefit of the doubt by accepting his version of events on the question of the separate bedrooms, he would still have had at least some opportunities to enter and exit the complainant’s bedroom without alerting the Wife.

Also, by his own admission, there would have been times when he slept with the Wife all night but got out of bed very early in the morning without waking her up. Credibility of the accused [ 63 ] In any sexual assault case where the accused testifies, the credibility of the accused is a crucial issue. Sometimes witnesses blatantly undermine their own credibility by being evasive, or by contradicting themselves, or by taking a position that cannot be accurate (e.g. a position that is contradicted by physical evidence of some kind).

However, there are more difficult cases in which witnesses do not blatantly undermine themselves, but courts still have to assess their credibility. Such is the case with the accused. [ 64 ] At one time, courts often commented about the demeanor of witnesses. In more recent years, Canadian courts have warned about the limits of using demeanor to assess credibility. Different individuals, from different cultures, and with different personalities, exhibit different types of demeanor when telling the truth. That is not to say that demeanor is always 100% irrelevant.

I observed the demeanor of the various witnesses. (I was particularly struck by the complainant’s demeanor, which strongly suggested sincerity.) [ 65 ] People have diverse personalities, and different individuals show their emotions in different ways. [ 66 ] Courts face additional difficulties when witnesses testify through interpreters. Different languages have different nuances, and translated testimony is sometimes challenging to assess. [ 67 ] That being said, I must still attempt to draw some logical conclusions about the credibility of the accused.

I will start by quoting his answer to a question by defense counsel about the day that he first learned of the allegations against him. It was essentially an agreed fact that this happened in October of 2020. He described how Child and Family Services (CFS) employee(

s) arrived at his door and told him about the allegations. He was asked about his reaction. He said: I was surprised. I was afraid. I was worried. On that day, they asked me, do you want us to take the family away from you or do you want to move out of the house yourself? And I said I’ll leave. And I took all of my things out. Clothing. [ 68 ] Later, defence counsel asked the accused how he felt about the complainant (at the time of trial). He replied: I’m very sad sometimes because I didn’t raise her to be like this (INDISCERNIBLE) circumstances have affected me a lot.

I love her, I’ve always loved her as a father, and I care for her a lot. [ 69 ] Even allowing for the fact that languages are different, and that the accused was using an interpreter, I must say I was surprised by his answers. Frankly, nothing that he said would have been inconsistent with his knowledge of his own guilt. The incidents happened in 2017. No one confronted the accused between 2017 and October 2020. Then, CFS confronted him and gave him an ultimatum that he would have to move out of his family home or CFS would take his children away from him.

It goes without saying that he was surprised, afraid and worried. However, if he was shocked, mortified and aghast by false allegations that he sexually assaulted his daughter when she was 13, he did not mention it.

[ 70 ] Later, he asserted that he still loves the complainant, but he expressed no concerns at all about her current mental health or wellbeing. Rather, he was unhappy because he did not raise the complainant to be “like this”. He was never asked and never elaborated what he meant by “like this”. Did he mean he never raised his daughter to lie?

Or did he mean that he never raised his daughter to air family dirty laundry in public? [ 71 ] If the accused honestly believed that the complainant completely invented all of the details of the sexual assaults that she shared with the police (and later the court), what did that suggest to the accused about the complainant’s mental and emotional wellbeing?

If she simply invented everything, and stuck to that invention when talking to the police and while under oath in court, and the accused really did love her like a father, would he not have expressed at least a tiny bit of concern about her mental wellbeing? [ 72 ] Even allowing for the fact that different people express emotions in different ways, and the imperfections of translation, I got the distinct impression that the accused was more concerned about his own inconvenience (he expressly mentioned his clothing), than with the mental and emotional wellbeing of his young daughter. [ 73 ] To express the above in a W.(D.) framework, I did not believe the accused when he flatly denied any sexual activity of any kind with complainant.

Nor did I discern anything in his evidence that would raise a reasonable doubt about his guilt. Alleged inconsistencies in the complainant’s evidence [ 74 ] I am not concerned about the fact that the complainant gave slightly different estimates about how long one of the assaults continued. Firstly, the two estimates (15 minutes or 35 minutes) were not shockingly different. For example, it is not as if she told the police that the incident went on for hours, and then told the court that it went on for just a few minutes. On this issue, I also take into consideration what courts have said about child witnesses.

I conclude that this very minor discrepancy does not undermine the complainant’s general credibility. [ 75 ] I am also not concerned by the complainant’s testimony that J (who was a very heavy sleeper) never woke up during the first two assaults. There was no expert evidence about what noises and movements are required to wake up very heavy sleepers. However, it is important to note exactly what the complainant said about the two assaults in question. Firstly, the complainant testified that the accused spoke to her in a whisper.

It is not difficult to accept the concept that a nearby whisper would not awaken a very heavy sleeper. [ 76 ] Secondly, the accused testified that J was sleeping beside her, and that she nudged J during the two assaults. The complainant did not punch, or slap, or kick, or pinch or poke J. She nudged J. It is not difficult to accept the concept that multiple nudges would not awaken a very heavy sleeper. [ 77 ] Finally, I am not concerned about the knife incident. The photos make it clear that, on one occasion on some unknown date, the complainant held a knife in her hands while the accused took two photos of her.

The complainant testified that she had no memory of the incident. The accused testified that he did remember the incident and that it ended when he left the house. No actual contact occurred (i.e. the complainant did not cut the accused). [ 78 ] The complainant also testified that, if she ever pulled a knife, it would have been to defend herself when the accused was trying to beat or hit her. The accused denied that he ever beat or hit her.

For what it is worth, the Wife testified that she never saw the accused beat or hit the complainant, although that hardly rules out the possibility that he might have done so in the Wife’s absence. [ 79 ] It struck me that neither counsel asked any follow-up questions at all about the complainant’s assertions that the accused beat or hit her. No one asked how often it happened. No one asked how old the complainant was at the time, or about the approximate timeframe of the alleged events. No one asked if there were ever any witnesses. No one asked for any details (e.g. if any sort of object was ever used).

I could speculate about the respective litigation strategies of both counsel, but I will refrain from doing so. In the absence of any details at all, I am simply not able to draw any detailed conclusions about this subject area. [ 80 ] The existence of the knife photos suggests that, as of the time that the photos were taken, relations between the accused and the complainant were extremely tense. Unfortunately, we have no idea when the photos were taken: before the alleged first assault, between the first assault and the last assault, or after the last assault.

One can make a rough guess about the complainant’s apparent age in the photos. She was obviously not a very young child. Perhaps she was about 13, but that is only a very rough guess.

Other than proving that relations were extremely tense at one moment in time, it is not clear how the photos reflect upon the alleged sexual assaults. [ 81 ] To summarize, although the complainant, because of embarrassment or otherwise, probably minimized minor things like how much school she skipped, I found the complainant to be generally credible and, taking into account her age (about 13 at the time of the incidents) and the passage of time, generally reliable.

Most importantly, I found her testimony about the sexual assaults to be credible and reliable. [ 82 ] I note that the details of the complainant’s allegations bear the ring of truth. For example, she said that J was not sleeping with her during the final assault. The complainant was alone. She testified that J did not wake up during the first two assaults. She must have realized that she would be questioned about the fact that J did not wake up. She must have realized that J’s remaining asleep might make the complainant’s account slightly more difficult to accept.

If she were simply fabricating allegations about all of the assaults, she could easily have alleged that all the assaults happened on nights when she was sleeping alone. I believe it is significant that she did not do that. Instead, she testified that J was a very deep sleeper and was present for the first two assaults and absent for the third assault.

This version of events suggests honest testimony as opposed to cunning fabrication. [ 83 ] In short, nothing in the testimony of the complainant created any reasonable doubts about the guilt of the accused. [ 84 ] Defence counsel rightly conceded that, if the complainant’s version of events was accurate, sexual assault and sexual interference did occur. [ 85 ] For these reasons, I find the accused guilty as charged. I thank counsel for their courtesy, and for their agreements on matters

like jurisdiction. ____________________________ J.