IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The Accused M.R.E. is charged with five counts alleging sexual offences against two children, the daughters of a woman that the Accused had been living with at the time of the alleged offences. The two children have been identified by their initials in order to protect their identity.

[2]           The older child, identified as S.M.D., is now 11 years of age. The Accused is charged with sexual assault, sexual interference and invitation to sexual touching with respect to S.M.D. These offences are alleged to have occurred between April 1, 2017 and September 23, 2018, when the child was between the ages of 8 and 10.

[3]           The younger child, who has been identified as S.L.D., is now 10 years old. The Accused is charged with the sexual assault and the sexual touching of this child. These offences are alleged to have occurred between September 21 and 23 of 2018, when this child was 8 years of age.

[4]           At the trial of this matter, the Crown called five witnesses in support of its case. These included the two children, who were permitted to testify from outside of the courtroom by means of a closed-circuit video connection, pursuant to section 486.2 of the Criminal Code. Also called as witnesses for the Crown were one of the investigating police officers, as well as the children’s mother and their maternal grandmother. A portion of the evidence of the younger child, S.L.D., was presented by means of her adoption of a video statement she gave on September 24, 2018. A voir dire was held and at its conclusion, it was determined that all of the requirements of section 715.1 of the Criminal Code were met and the evidence taken at the voir dire was admitted into evidence as part of the trial.

[5]           The Accused testified on his own behalf. While he corroborated much of the collateral details provided by the children in their evidence, he expressly denied that he had ever touched the children in a sexual manner at any time. This type of defence has been referred to as a “flat denial”.

[6]           Following is a summary of the evidence presented at trial, a review of the applicable law, and the reasons for reaching the verdict in this case.

[7]           The Accused, who is 33 years of age, lived with a woman named S.R. from some time in 2016 until September of 2018 when the allegations which give rise to these charges came to light. The Accused is not the father of the children who are the alleged victims of the offences before the court, but he and Ms. R. have a seven year old son together. The Accused referred to Ms. R. in his evidence as his “baby momma”. The two had brief relationships together in the past, one of which the Accused described as a “summer fling”. It was apparently during this period that their son was conceived. According to the evidence of the Accused, when the son was approximately four years of age, he was asked by Ms. R. if he wanted to meet his son. He agreed and in his words, “we picked up where we left off.” The two began living together and soon found a nice basement suite to live in on the west side of [omitted for publication].

[8]           The couple lived in this residence with their son. Ms. R.’s two daughters did not live in the home, but they would come to visit regularly, with each child spending a weekend with the couple once a month. The home had two bedrooms, one of which was used by the Accused and Ms. R., and the other as the son’s room. During their visits, Ms. R.’s daughters would sleep on a mattress on the floor in the living room. The daughters would visit one at a time because, according to the Accused’s evidence, “S. could only handle one child at a time.” The Accused said that he took on the role of disciplinarian for the children.

[9]           The Accused testified that the relationship was one he believed to be a good one, but much of the picture that he presents about the home is at odds with the other witnesses. The son was removed from the home by the Ministry of Children and Family Development in December of 2016 and did not return back home for a year until December of 2017. Ms. R. said of the Accused, “he used to hit me” but did not elaborate on this. The Accused, in his evidence, testified that he had been on probation at the time when he was contacted by police about this incident and that he believed that his relationship with Ms. R. was going well.

[10]        On the weekend of September 21 to 23, 2018, the youngest daughter came for a visit with her mother and the Accused in [omitted for publication]. On the Saturday night, she fell asleep in her mother’s bed, while the Accused played video games in the living room. When the Accused was finished, Ms. R. was fast asleep, according to her evidence, helped by her sleeping medication. The Accused moved the youngest daughter from the bedroom into the living room. In answering questions from his lawyer, the Accused said that he didn’t recall moving the child, but he acknowledged that he probably did so. In cross-examination, he had a clear recollection of moving the child from the bedroom to the mattress. He also testified that the child told him that her stomach hurt.

[11]        On Sunday morning, according to the evidence of S.R., this child was in her pajamas. She had last seen the child asleep in her clothes and she had not changed the child. The child told Ms. R. that she was tired and was not feeling well. She describes her child as “very subdued and quiet”, adding that this was unusual and that usually the child was usually more energetic. She decided to return the child to her mother’s home. She and the child took a bus to [omitted for publication] and they were met at the bus stop by the maternal grandmother.

[12]        On the way home from the bus stop, the grandmother stopped at a Save-On-Foods store. S.R. and the older child went inside, while the younger child remained in the van with her grandmother. The child said to her grandmother, “I need to tell you something.” The grandmother, B.R., describes the child as looking sad. It was then that the child first alleged that the Accused had touched her in a sexual manner. When the others arrived back in the van, they returned to the grandmother’s house. A decision was made to report the matter to the [omitted for publication] detachment of the RCMP.

[13]        Later that day, the older child was asked if the Accused had ever acted inappropriately with her. She told her other grandmother that he had done so, and she was also interviewed by the RCMP the next day.

[14]        In the recorded statement of the younger child given to Constable Paul Gill of the RCMP, the officer was careful to build a rapport with the child before inquiring about the substance of the allegations. Constable Gill testified that he had been trained in the “Step Wise” technique of interviewing children and that he employed that method when speaking to this child, avoiding the use of leading questions or of attempting to pressure the child in any manner. Their interaction in the video presents as being light and friendly and the child appears comfortable in speaking with the Constable.

[15]        In the interview, the child volunteered some criticism of the Accused, telling the officer, “Mommy does mostly all of the hard work and M. just sits on his butt playing video games all day.” She also complained that the Accused used too much profanity and smokes outside, but with the door open. When the officer asked the child if she liked the Accused, she replied “kind of”. She expressed concern over the fact that the family did not have much money and the Accused did not work and only did some of the chores.

[16]        When Constable Gill asked the child to tell him about what had happened that weekend, she said that the Accused had woken her up in the middle of the night. She went on to say “and then M. made a promise with me that I wouldn’t tell anybody that he touched my vagina. He also licked it.” She went on to state: “Yeah, so he promised that if I didn’t tell anybody that he touched my vagina and licked it, that I will, would be able to play video games.”

[17]        The child said that the sexual touching had occurred in the living room of the home. She went on to state: “I saw M. and then he made the promise with me. And I never knew that it was illegal to touch somebody’s private, under nineteen or twenty.” She added that he made her promise five or six times. She said that the next day, when her mother and sister were in the store, she decided to tell her grandmother about what had happened. She said: “When I figured that, that time would be a good time to tell Mama [her grandmother] about M. touching my private. It was just like, uh, it’s hard to decide but first it’s just like, okay if I tell I’m breaking a promise. But it’s also illegal. But I told Mama anyways. And I was nervous to tell you guys, but I’m still telling you because it’s a good thing.”

[18]        Later in her statement she added, “Oh yeah, I forgot something. He also told me not to wear underwear last night.” The child appeared very reluctant to give details of the actual touching at first, but she said that the Accused touched her underneath her clothes, and that the touching lasted between one and three minutes. She recalled that he told her to take her underwear and pants off. When the officer asked the child how she knew that the Accused had licked her vagina, she said “I felt his tongue.”

[19]        During the last part of the interview, there was something that the child was very reluctant to tell Constable Gill. When he asked her what it was that she didn’t want to talk about, she said “I don’t really feel like talking about it now.” The officer made several more attempts to have the child disclose the information. At one point she told him, “I can say it in my head, but I cannot say it out loud.” She eventually said that the Accused would look at something she would wear, telling her that he wanted to see if she had an accident.

[20]        In cross-examination, the child was asked if she might be confusing the M. she was describing with another M. in her life. She was clear that it was the Accused that she was talking about. She was also asked about whether or not she might have imagined what she was describing. She stated that she was “100% sure” that what she told Constable Gill had actually happened.

[21]        The older child testified that there were numerous occasions when the Accused had sexually assaulted her. The first incident she recalled was in April during the year that the Accused’s son was in care with the Ministry of Children and Family Development. She was sleeping in that child’s bed, and she was woken up by the Accused. The bed was very small and the Accused laid down in the bed beside her. He began touching her on her chest, underneath her clothing. She said that this did not last very long, but that it made her feel uncomfortable.

[22]        This child testified that on subsequent visits after that, the Accused began telling her to take off her clothes. She said, “I was young and I didn’t know if it was right or wrong.” She said that on these occasions she would be wearing a nightgown, but that the Accused would tell her not to wear underwear. This would occur in the living room of the home. After she had gone to bed, the Accused would wake her up. She said that he would lie on top of her and place his fingers on her vagina under her clothes. She said that sometimes he would place his fingers insider her vagina and that it hurt her. She said that he would also lick her vagina with his tongue. She said, “It was weird and I did not like it.”

[23]        The child said that this would happen “almost every time I was there.” She said that sometimes he would remove his clothes, lay on top of her, and “use his private on my privates.” She clarified that in referring to his privates, she meant his penis. She said that he tried to put his penis in her vagina and that this hurt her. She said that this happened in the living room on the mattress on the floor. It would happen when her mother was asleep. She said that the Accused told her that what he was doing was illegal and that he would get in trouble if she told anyone. She recalled that he promised to buy her a “screamer”, which she described as a “slushie” with ice cream, if she promised not to tell anyone what he was doing. She said that she would agree to do what he said because he would keep asking her and because she didn’t want him to hurt her or hurt anyone else in her family.

[24]        This child said that the Accused would sometimes ask her to rub his penis. She testified that on one occasion she recalled that he was rubbing his penis in her presence. She said “this white stuff came from his penis and he had to clean it up.” This occurred in the living room of the home. She said that this happened only once.

[25]        According to this witness, many of these things would happen during the day when her mother was out running errands or buying beer or cigarettes for the Accused. She said that she was often home alone with the Accused and it was during these times that he would take advantage of her. She testified that she had been taking gymnastics and that one night the Accused told her to take her clothes off and perform some gymnastics. She said that he took some pictures on his iPad of her doing this.

[26]        The child said that this behaviour on the part of the Accused continued for almost two years. She did not tell anyone about it until she was asked by her grandma D. if the Accused had ever done anything like this to her. She was asked why she kept going to her mother’s house if she knew that this might happen to her. She said that it was because she loves her mother and her brother. She also said that she did not like her mother to be alone with the Accused. She added that she didn’t like the Accused that much because he was mean to her mother and to her brother.

[27]        In cross-examination, this child confirmed that the M. she was referring to was the Accused and not some other M. She said that she was not bothered by his frequent profanity, but that she knew that her sister didn’t like this, adding, “but I know adults are gonna say what they’re gonna say.” She said that it was unfair that the Accused was so lazy and made her mother have to do all of the work around the house.

[28]        When asked if the things she was saying might be imagined or fabricated, this witness asserted that she was telling the truth, and that she would not make something like this up just to get the Accused in trouble. She added that she was “100% confident” that the things she testified to happened “in real life”. She added, “They are my memories and what happened to me.” When asked if she and her sister had ever talked about this, she said that she never told her sister what happened to her until her sister first reported what had happened on her last visit with the Accused.

[29]        According to the evidence of this child, on one occasion the Accused said to her that he could go to jail if she told anyone what he was doing to her because what he was doing was illegal. She said “I listened to him because he was older than me.”

[30]        The older daughter has a memory of the Accused as someone who drank alcohol heavily. She said, “Mommy had to call the police. I was scared that he would hurt mommy.”

[31]        In cross-examination, this child was asked about how she came to disclose what had happened to her. She said that her grandma D. had asked her if the Accused had ever done anything to hurt her or upset her. She did not immediately disclose everything and it wasn’t until the police were called that she was more forthcoming in her disclosure.

[32]        The Accused has denied any inappropriate or illegal touching of these children whatsoever. He agrees with much of the collateral details given by the witnesses for the Crown, including the layout of the home, the frequency of the visits by these children and their sleeping arrangements, He agrees that it was usual for the children’s mother to go to sleep with the aid of sleeping medication and for whichever child was visiting to fall asleep next to her mother, while he played video games in the living room. When he was ready for bed, he would usually move the child from the bedroom to the living room.

[33]        The Accused also acknowledged in cross-examination that he drank alcohol almost daily, but said “I don’t really get that drunk.” He also agreed that it was usual for him to make promises to the children to give them treats of food or pop as rewards for desired behaviour, but denied ever doing this in return for their silence about sexual touching.

[34]        Much of the Accused’s testimony was indicative of a perception or point of view that was at odds with the others who lived in his household. For example, he admitted that on one occasion the police were called to his home when he was drinking, but he maintained that the children had no reason to be afraid of him. His perception of life in his household is at odds with what was reported by his former partner and her children. In his opinion, “I thought things were going great”.

[35]        In cross-examination Crown counsel also noted some apparent contradictions in the Accused’s testimony. For example, on the one hand he claimed that he had never been to court before facing charges. However later in his evidence he stated that one of the reasons he thought that everything was going so well was because, in his words, “I was almost off probation”, implying that his earlier statement was untrue. He also stated that he has a “low sex drive”, apparently believing this to somehow prove his innocence. Crown Counsel suggested to him that this was inconsistent with the fact that he had fathered four children with three different mothers, but the Accused disagreed with this conclusion.

[36]        The children and their mother described the Accused as someone capable of causing them fear. The Accused maintained that they had no reason to fear him. The children and their mother describe the Accused as someone who was unmotivated and who did not pull his weight when it came to work around the house. They saw him as someone whose principal activities were playing video games and drinking. While the Accused acknowledged that he did spend a lot of time playing video games and while he admits that he was a daily drinker, he believes that he fulfilled his share of responsibilities in his domestic partnership. When it was suggested that he would frequently send the children’s mother out to buy alcohol and cigarettes, he justified this because there were other errands that she was performing as well. Generally speaking, the version of reality in the household that Accused presented did not match that described by the children or by their mother.

[37]        Both counsel concede that the central issue in this case is whether or not the Crown has proven, to the standard of proof beyond a reasonable doubt, that the Accused has committed the offences that he is charged with. The Crown is required to prove every element of these offences to that standard. In this case, a number of the elements of the offences charged are not in dispute.

[38]        It is acknowledged that when the children speak of a person known as “M.” who committed the alleged offences, they are referring to the Accused. It is also not in issue that if these offences occurred, they happened in the [omitted for publication], in the Province of British Columbia, within the territorial jurisdiction of this court. It is also not suggested that if the offences occurred they did not occur within the time frames alleged. It is also not in dispute that the conduct described by the children would constitute the criminal offences that the Accused is charged with. Consent is not a defence to these charges. The Accused is not asserting any other defence such as a lack of intent. He denies that the offences ever occurred.

[39]        The test in a criminal trial is not which side or whose witnesses the trier of fact believes. It is not a “credibility contest.” The question is whether or not the Crown has proven the offences charged beyond a reasonable doubt. I am required to consider whether, on the total body of evidence, viewed as a whole, the Crown has proven each essential element of the offence beyond a reasonable doubt. In R. v. MacKenzie, 1993 CanLII 149 (SCC), [1993] 1 S.C.R. 212, the Supreme Court of Canada stated (at para. 46) that where a trier of fact is faced with two conflicting versions of the evidence, “the two versions cannot simply be pitted against one another in isolation, rather all of the evidence must be considered.” The presumption of innocence, contained in section 11(d) of the Charter of Rights and Freedoms, requires that an accused person cannot be convicted unless each essential element of the offence has been proven beyond a reasonable doubt.

[40]        In R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, the Supreme Court of Canada said that a reasonable doubt is a doubt based upon reason and common sense. It is not based upon sympathy or prejudice. It must be logically connected to the evidence. It does not require proof to an absolute certainty, nor is it an imaginary or frivolous doubt. It requires more than the belief that an accused is probably guilty.

[41]        In R. v. Bachman, 2013 BCSC 1028 the Honourable Justice N. Brown explained the definition of “reasonable doubt” further, in paragraphs [74] to [79] of that decision. As he states in his reasons for judgement:

[42]        In this case, the assessment of credibility must be decided on the basis of proof beyond reasonable doubt. The Supreme Court of Canada decision in R. v. W. (D.), (1991) 1991 CanLII 93 (SCC), 63 CCC (3d) 397 (SCC) directs that if I believe evidence which raises a defence or negates an essential element of the offence, then I must acquit the Accused. If I do not believe the evidence raising a defence or negating an essential element of the offence, but if it leaves any reasonable doubt about the guilt of the Accused, I must acquit the Accused. Even if I am not left in doubt by evidence raising a defence or negating an essential element of the offence, I must ask myself whether on the basis of the evidence I accept, I am convinced beyond a reasonable doubt of the Accused’s guilt.

[43]        In R. v. C.W.H., (1992) 1991 CanLII 3956 (BC CA), 68 C.C.C. (3d) 146 (B.C.C.A.), Mr Justice Wood, then of the British Columbia Court of Appeal, gave the following further advice:

[44]        In a case like this, where the defence is one of a “flat denial”, the evidence of the Accused is not simply considered standing alone. It must be considered in the context of the evidence as a whole. For example in the Alberta Court of Appeal decision of R. v. J.W.A., 2010 ABCA 406, the Court agreed with the approach of the trial judge, in a case where the Accused denied that the offences ever occurred. In that case, the trial judge held that the first two steps of the W. (D.) analysis required a consideration of the evidence as a whole, not just of the evidence of the accused by itself.

[45]        In R. v. P.W., 2003 BCCA 542, the British Columbia Court of Appeal considered how credibility is to be assessed in a case where the flat denial defence was raised. Lambert J.A. wrote at para. 16:

[46]        To summarize then, when I consider whether I accept the evidence of the Accused in this case, or whether it supports a reasonable doubt, I don’t just consider what the Accused has testified to by itself. I must look at his evidence within the context of all of the evidence presented in its entirety.

[47]        There are a number of other considerations which a court can often apply when determining issues of credibility. Firstly, a court may consider evidence which pertains to the honesty and forthrightness of the witnesses. The credibility of a witness may be assessed by its internal consistency, in other words by the presence or absence of any contradiction within itself. It may also be assessed by its external consistency, in other words by the presence or absence of any contradiction with the remainder of the evidence.

[48]        An accused is not required to show a motive for why a complainant would give false evidence. In R. v. Krack (1990) 1990 CanLII 10976 (ON CA), 56 C.C.C. (3d) 555 (Ont. C.A.) the court explained the rationale for this at 561-2:

[49]        The court went on to hold that assessing credibility in this manner was in error because it removed the burden of proof from the Crown and placed it on the accused. The Accused has no requirement to show why Crown witnesses might lie. The Crown always has the burden of proving each element of every offence charged beyond a reasonable doubt.

[50]        In their submissions, both counsel addressed the issue of how the evidence of child witnesses should be approached. The Supreme Court of Canada, in R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, has offered guidance on this issue. The court stated that a trial judge should be alert to the fact that children may not be able to recount precise details and communicate the when and where of an event with perfection. However this does not mean that they have misconceived or misunderstood what happened to them and who did it. Recent changes to the law have lessened the strict standards of oath taking and have done away with the need for corroboration. The credibility of every witness who testifies before the courts must, of course, be carefully assessed. However the evidence of children is not to be measured by the standard of the "reasonable adult" in assessing their credibility.

[51]        The court went on to say that every person giving testimony in court, of whatever age, must be treated as an individual. Each witness’s credibility and evidence must be assessed by reference to criteria appropriate to that witness’s mental development, understanding, and ability to communicate. When it comes to evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to collateral matters such as time, time estimates or location, should be considered in the context of the age of the witness at the time of the events to which the child is testifying.

[52]        Where proof of an offence depends on the evidence of a child witness or witnesses, the standard of proof is not lowered or lessened. Proof beyond a reasonable doubt of each element of the offence remains the standard that the Crown must meet. In the case of child witnesses, allowance may be made for imprecision of detail. As Justice Armstrong of the British Columbia Supreme Court wrote in R. v. D.W.L., 2018 BCSC 2480:

[53]        In determining whether or not the Crown has proven all the elements of the offence beyond a reasonable doubt, the first consideration is whether or not to accept the evidence of the Accused in this case. One of the problems presented in finding the Accused’s evidence to be reliable is the ease with which he is able to create a reality for himself that is at odds with what is objectively going on around him. For example, he testified that he had never faced criminal charges before, while also admitting that was on probation. He did not see his daily drinking as a problem, but his former domestic partner and her children present a different picture. He himself admitted that his drinking had once caused police to attend his home. He maintained that neither Ms. R. nor the children had any reason to be afraid of him. Ms. R. testified that the Accused had been violent towards her, and the older child had said that she had a fear that the Accused might hurt her or another family member. She expressly recalled being scared about the possibility that the Accused would hurt her mother. The Accused testified that he had a good relationship with Ms. R. and that he was pulling his weight in their domestic partnership, while Ms. R. and the children present a different picture of the Accused as someone who was lazy and who spent an excessive amount of time playing video games and drinking rather than living up to his responsibilities to his family.

[54]        The Accused presented as someone who was quick to substitute a narrative that put himself in a favourable light, rather than acknowledging life as it really was. He presented as someone easily able to say that things are other than they really are, rather than admit fault or acknowledge a problem. In light of this ongoing pattern in the evidence of the Accused, I am unable to accept his evidence as reliable or trustworthy, under the first stage of the test for resolving credibility issues.

[55]        The next stage of this exercise requires an assessment of whether or not, even if I disbelieve the Accused’s evidence, it raises a reasonable doubt. In other words, even if I don’t find the Accused to be credible, I must still consider whether his denial might be true. Once again, in this analysis his evidence cannot be considered by itself, but must be considered in light of all of the evidence as a whole.

[56]        In this case the Crown has presented credible evidence from two children who have testified about things occurring to them that are outside the typical imaginings of children of their age. For the Accused’s evidence to be truthful, the evidence of the children must necessarily be false. There are a number of possibilities that would lead to this result:

[57]        The Accused is not required to prove that any of these conclusions are correct. The burden of proof never shifts from the Crown to prove the offences beyond a reasonable doubt. In assessing whether or not such doubt exists, each of these possibilities must be examined to see if they rise to the level required to raise a reasonable doubt, and each will now be considered.

[58]        Counsel for the Accused was careful to cross-examine the children about their ability to distinguish imagination or dreams from reality. Constable Gill was also careful in his questioning of the younger child to canvass her ability to distinguish the truth from a lie. From the answers given by both children, I am satisfied that each of them has the ability to know the difference between something real and something imagined. Both were clear that the things they testified to were real and not imagined or false. They were able to provide sufficient collateral detail regarding time, place and surroundings, for the events they described. Many of these collateral details were corroborated by the Accused and by other witnesses, such as the layout of the home, the sleeping arrangements and the routine in the home. The children also stated that they knew that some of the events had occurred because of the physical sensations associated with them. The evidence does not support the reasonable possibility that what the children have testified to is something that they imagined.

[59]        The invasive nature of what the children describe does not support the reasonable possibility that they are mistaking some sort of innocent conduct for something accidental or some legitimate purpose for touching of the kind that the children report. Firstly, the Accused does not allege this possibility. He is not saying that they might be mistaking innocent conduct for illegal touching. Secondly, it is inconceivable that there would be any legitimate purpose that could be mistaken for an adult male to be licking a child in the area of the body described by the children. It is also inconceivable that there could be any mistaken innocent action that would be misperceived for something the older child describes that is consistent with ejaculation by the Accused.

[60]        The children were questioned about the possibility that they may be mistaking the Accused for another adult male in their life who has the same given name as the Accused. Both were clear that they were referring to “Mommy’s M.” and not the other adult in their lives also named M.

[61]        This leaves for consideration whether it a reasonable possibility that the children are fabricating their allegations, either on their own initiative, or on the part of some other person who is coaching them. On a consideration of the evidence, neither of these present as reasonable possibilities. Each of the children were reluctant to report what they allege had happened to them. In the case of the younger child, her initial disclosure required some coaxing from her grandmother. There were some things she was reluctant to tell Constable Gill, even after the use of skilful interview techniques. In the case of the older child, no disclosure was made to anyone for months, and then not until the younger child made her disclosure. It is unlikely that such a disclosure ever would have been made, if not for her sister’s disclosure. The manner in which the children made their disclosures is incompatible and inconsistent with any planned intention to fabricate a story to get the Accused in trouble.

[62]        The manner of disclosure and the other evidence in this case also does not support the reasonable possibility that the children were coached by an adult to fabricate allegations against the Accused. It is unlikely that it would have been as difficult as it was for police to question the younger child if the child had been coached about what to say. Neither the children, nor their mother, nor their grandmother testified in a manner that demonstrated any unbridled hostility towards the Accused. There are no ongoing family court proceedings mentioned in the evidence that would present the children’s mother or grandparents or any other person with any sort of tactical advantage that would arise from the making of these allegations.

[63]        In general there is nothing apparent from the evidence that would support the notion that these children have been coached into making false statements about the Accused. The only factor that casts possible doubt on the evidence of the older child is in her testimony that the Accused photographed her on his iPad, while a subsequent examination of the iPad failed to locate any such photos. At best this is a neutral factor, in light of the possibility that if such photos existed, they may have been deleted.

[64]        As was stated earlier, a reasonable doubt is a doubt based upon reason and common sense. It is not based upon sympathy or prejudice. It must be logically connected to the evidence. It does not require proof to an absolute certainty, nor is it an imaginary or frivolous doubt. In this case, for reasonable doubt to exist, it would require, a finding that it is reasonably possible for these children to have the ability to describe in detail sexual behaviour by an adult, including for the older child to describe ejaculation, because it was something they each independently imagined or because they themselves decided to come up with the false accusation of such behaviour or because they were put up to doing so by an adult. In the latter two scenarios, it would also require that the children incorporated a strategy of making disclosure reluctantly, and that they were able to present a false version of events in a manner that they were able to maintain throughout a thorough interview by a police officer and a very skilled cross-examination. To conclude that any of these are reasonable possibilities in the circumstances of this case tortures the definition of reasonable doubt. These possibilities are highly speculative at best, and are unsupported by the evidence in this case.

[65]        For the reasons previously stated, the evidence of the Accused is not credible or reliable. It does not present as being reasonably possible, especially when contrasted with the independent evidence. After discounting these two options, the evidence that I do accept is the evidence of the children that within the time set out in the information, the Accused intentionally applied force to each of them in a sexual manner which violated their bodily integrity and in a manner which meets the definition of a sexual assault.

[66]        I accept as credible the evidence of the two child complainants, which establishes the elements of all of the five offences that the Accused is charged with beyond a reasonable doubt. Accordingly the Accused is found guilty on all five counts set out on the information.

[67]        Some of the counts that the Accused has been charged with may be subject to the rule against multiple convictions. This issue was not addressed by counsel in their submissions at trial. In the event that counsel are unable to agree whether or not the rule applies or how it applies to the counts that the Accused has been convicted of, they may make further submissions on this issue.