Richard Wellington Dunn v R - Judgment

¶ 240830 Richard Wellington Dunn v R: SCA 37 of 2022. Coram Richards J, KC – Judgment Page 1 of 16 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 CRIMINAL DIVISION 2 3 SCA NO: 37 of 2022 4 5 6 7 RICHARD WELLINGTON DUNN 8 9 V. 10 11 R 12 13 14 15 Appearances: Ms. Amelia Fosuhene of Brady Law for the Appellant 16 17 Ms. Shauna-Kaye James, Crown Counsel, Office of the Director of Public 18 Prosecutions for the Respondent 19 20 21 Before: The Hon. Justice Cheryll Richards KC 22 23 Hearing Date: 19th July 2024 24 25 Judgment: 30th August 2024 26 27 28 29 Criminal Law – Section 181 of the Criminal Procedure Code (2021 Revision), Appeal Against Decisions 30 of the Summary Court on Conviction and Sentence, Indecent Assault on a Female contrary to s.132 (1) of 31 the Penal Code (2019 Revision), Principles on Appeal. 32 33 34 35 36 37 38 39 240830 Richard Wellington Dunn v R: SCA 37 of 2022. Coram Richards J, KC – Judgment Page 2 of 16 JUDGMENT 1 2 PREAMBLE 3 4

¶ [1] Section 12 of the Youth Justice Act (2021 Revision) states: - 5 6 “12. (1) In relation to any proceedings in any court, such court may direct [and this court 7 so directs] that- 8 (a) no published report of or comment on the proceedings shall reveal the 9 name, address or school, or include any particulars calculated to lead to 10 the identification, of any young person concerned in the proceedings, 11 either as being the person by, against or in respect of whom the 12 proceedings are taken, or as being a witness in the proceedings; and 13 (b) no picture shall be published as being or including a picture of any 14 young person so concerned in the proceedings. 15 16 (2) Whoever publishes any matter in contravention of subsection (1) is guilty of an 17 offence and liable on summary conviction, in respect of each such offence, to a fine of 18 five thousand dollars or to imprisonment for six months. 19 20

¶ [2] Section 31 of the Criminal Procedure Code (2021 Revision) states as follows: “Anonymity of 21 complainants in rape etc. cases: - 22 23 “31. (1) After a person is accused of a rape offence, no matter likely to lead 24 members of the public to identify a woman as the woman against whom the offence is 25 alleged to have been committed shall be published in a written publication available to the 26 public or be broadcast, except as authorised by a direction of the court. 27 (2) … 28 (3) …. 29 (4) … 30 (5) If any matter is published or broadcast in contravention of subsection (1), 31 the following persons — 32 240830 Richard Wellington Dunn v R: SCA 37 of 2022. Coram Richards J, KC – Judgment Page 3 of 16 (a) in the case of a publication in a newspaper or periodical, the proprietor, 1 editor and publisher of the newspaper or periodical; 2 (b) in the case of any other publication, the person who publishes it; 3 (c) in the case of a broadcast, any person having functions, in relation to 4 the programme in which it is made, corresponding to those of an editor of 5 a newspaper, 6 commit an offence and are each liable on summary conviction to a fine of 7 one thousand dollars.” 8 9

¶ [3] For the avoidance of doubt: It is the Court’s view that the charges against this Appellant, based 10 on the particulars of the offence, fall within this section of the law by virtue of the use of the word 11 “etc.” and therefore it is ordered that there be no identification of the complainant in this case. 12 13

¶ [4] In pursuance of this, this Judgment has been anonymised to protect the identity of the 14 complainant. 15 16 INTRODUCTION 17 18

¶ [5] This is an appeal against conviction and sentence following a trial in the Summary Court. 19 20

¶ [6] The Appellant was convicted in the Summary Court of Charges 02015/21: (1) - (4). These are 21 four offences of Indecent Assault contrary to s. 132 (1) of the Penal Code (2019 Revision). 22 23

¶ [7] The particulars of Charge (1) are that he on the 13th day of June 2021, at …, Cayman Islands, 24 indecently assaulted [X], a child aged 11, by touching her on her breast. 25 26

¶ [8] The particulars of Charge (2) are that he on the 13th day of June 2021, at …, Cayman Islands, 27 indecently assaulted [X], a child aged 11, by touching her vagina over clothing. 28 29

¶ [9] The particulars of Charge (3) are that he on the 16th day of June 2021 and 17th day of June 2021, 30 at…, Cayman Islands, indecently assaulted [X], a child aged 11, by touching her breast. 31 32 240830 Richard Wellington Dunn v R: SCA 37 of 2022. Coram Richards J, KC – Judgment Page 4 of 16

¶ [10] The particulars of Charge (4) are that he on the 16th day of June 2021 and 17th day of June 2021, 1 at …, Cayman Islands, indecently assaulted [X], a child aged 11, by touching her vagina over 2 clothing. 3 4

¶ [11] On the 17th November 2022, the Appellant was sentenced to 66 months (5 and ½ years) 5 imprisonment on each count to run concurrently. 6 7

¶ [12] By Notice of Appeal dated on the said day, the Appellant appeals his conviction and sentence. He 8 indicated then that grounds would be filed by his attorney. Three grounds were filed in May 2024 9 as follows: - 10 11 i) Failure to properly investigate. 12 ii) Failing to bring before the Court evidence that wholly undermined the defendant’s 13 ability to have a fair trial and challenge properly the issues the Court had to 14 determine in the case. 15 iii) Failure to contemplate or allow the evidence of the complainant’s previous 16 complaints and conduct. 17 18

¶ [13] The Court’s powers on an appeal from a decision in the Summary Court are set out in s.181 of 19 the Criminal Procedure Code. (2021 Revision). 20 21 “181. The court may adjourn the hearing of the appeal, and may, upon the hearing 22 thereof confirm, reverse, vary or modify the decision of the Summary Court, including the 23 passing of some other sentence (whether more or less severe) or remit the matter to the 24 Summary Court for retrial, or may make such other order in the matter as it may think just, 25 and may, by such order, exercise any power which the Summary Court might have 26 exercised, and such order shall have the same effect and may be enforced in the same 27 manner as if it had been made by the Summary Court: Provided that the court may, 28 notwithstanding that it is of the opinion that the point raised in the appeal might be decided 29 in favour of the appellant, dismiss the appeal if the court considers that no substantial 30 miscarriage of justice has actually occurred.” 31 32 33 240830 Richard Wellington Dunn v R: SCA 37 of 2022. Coram Richards J, KC – Judgment Page 5 of 16 THE CASE FOR THE PROSECUTION 1 2

¶ [14] The prosecution’s case at trial was in summary as follows. In June 2021, the complainant was 3 eleven years old. She resided with the Appellant and her mother. The Appellant is married to her 4 mother and is thus her stepfather. Her mother was absent from the home on some evenings 5 because of work. The complainant alleges that while her mother was away from home on two 6 occasions, on the 12th June and 16th June 2021, the Appellant touched her indecently. 7 8

¶ [15] The complainant stated that on the 12th June 2021, whilst she was seated on the sofa the Appellant 9 reached over her and placed his hand under her clothing. He touched her left breast and the front 10 of her vagina over her underwear. She pushed him off and went to her room where she remained 11 until her mother came home. She did not report it and gave the reason as fearing that her mother 12 would not believe her and would believe the Appellant. 13 14

¶ [16] The complainant said that on the second occasion, on the 16th June 2021, in the course of play 15 fighting with the Appellant, he touched her on her breasts under her bra and put his hand down 16 her pants where he touched her on her vagina over her underwear. He pushed her down on to the 17 couch and was on top of her. He was moving up and down on her and she could feel his penis on 18 her vagina. She hit him on the shoulder and told him to stop. When he did and came off her, she 19 went to her room and hid in the closet. She called her stepmother and told her what had happened. 20 She remained there until her mother arrived home with the police. 21 22

¶ [17] The Appellant was represented at trial by Counsel Mr. Greg Burke. The Appellant chose to give 23 evidence in his own defence. He called his wife, the mother of the complainant in his defence. 24 His defence was a denial, that he had never touched the complainant indecently and that the 25 complainant had fabricated the allegations for a number of reasons. He testified that nothing 26 happened between them on the 13th June 2021. He said that on the 16th June, they were both at 27 home. The complainant came into the room while he was watching television and began hitting 28 him on his leg. She did so twice. He told her to stop. She did not. On the second occasion he 29 grabbed her arm, pushed her to the sofa and told her to stop. She appeared angry and went to her 30 room. Later the Police and his wife came and removed the complainant from the home. 31 32 33 240830 Richard Wellington Dunn v R: SCA 37 of 2022. Coram Richards J, KC – Judgment Page 6 of 16 THE MAGISTRATE’S FINDINGS 1 2

¶ [18] The learned Magistrate (“the Magistrate”) conducted a ground rules hearing and pre-trial meeting 3 with the complainant prior to the start of the trial. The conclusion from the assessment conducted 4 at the meeting was that the complainant was competent and capable of giving oral evidence. This 5 was based on the findings that the complainant was capable of understanding the questions put 6 to her, the difference between telling a lie and the truth and that the proceedings required her to 7 tell the truth. The Magistrate also found that the witness provided clear answers in response to 8 questions and was well able to cope with questioning. 9 10

¶ [19] In addition to the evidence of this witness, the statements of three witnesses were read by 11 agreement, PC Sarah Beckley, PS Laura Hicks and Carol Robinson. 12 13

¶ [20] In coming to a decision, the Magistrate reminded herself of the relevant directions with respect 14 to the age of the complainant, delay in reporting and good character. Under assessment of the 15 evidence, the Magistrate adverted to the burden and standard of proof. In accepting the evidence 16 of the complainant, the Magistrate considered the reason that the complainant had not reported 17 the incident on the 13th June and the possible motives for concoction of the allegations. 18 19 THE SUBMISSIONS 20 21

¶ [21] In summary, the submission on behalf of the Appellant is that he did not receive a fair trial. It is 22 said that there was material which was not before the Summary Court because either it was not 23 obtained by the Police or it was not obtained by defence Counsel who represented the Appellant 24 in the Summary Court. Secondly, it is said that the Magistrate ought to have allowed more 25 detailed background evidence to be given by the complainant’s mother as to the behaviour of the 26 complainant in the weeks leading up to the alleged incident. It is said that this may have assisted 27 with a determination as to the complainant’s credibility. The resulting effect says the Appellant 28 is that his conviction is unsafe, and this appeal should be allowed. 29 30

¶ [22] The Respondent submits in reply that there has been no substantial miscarriage of justice such 31 that this appeal should succeed. 32 240830 Richard Wellington Dunn v R: SCA 37 of 2022. Coram Richards J, KC – Judgment Page 7 of 16 GROUND 1 – FAILURE TO PROPERLY INVESTIGATE 1 2

¶ [23] Counsel for the Appellant submitted that on the 16th June 2021 in the immediate aftermath of the 3 report, the Police failed to take the clothing of the Appellant and of the complainant for 4 examination. The Police failed to obtain a proper account from the first Officer on the scene, PC 5 Coleman and a proper account from the complainant’s stepmother as to everything that had 6 actually been said to her. In addition, no statement was obtained from the complainant’s father 7 and stepmother. 8 9

¶ [24] Counsel submitted that as the evidence of the complainant was that she had been touched 10 underneath her clothing, the underside of that clothing may have yielded forensic opportunities. 11 12

¶ [25] Counsel for the Respondent submits in response that given the nature of the touching and the fact 13 that the two parties resided in the same home, there would have been no forensic merit in seizing 14 any of the clothing. 15 16

¶ [26] Counsel also notes that the complainant’s stepmother provided an account to the 911 operator on 17 reporting the incident. The record of what she said was disclosed to the Appellant as part of the 18 Police Record Management System report. Attempts were made to take a statement from her 19 stepmother which were not successful. PC Coleman did not provide a statement but made a note 20 of his dealings on the 16th June 2021, which note was disclosed to the Appellant. 21 22

¶ [27] Counsel also said that the witness’s stepmother and father were spoken to but cannot be forced 23 to provide witness statements. 24 25

¶ [28] This Court notes that defence Counsel Mr. Burke, raised the issue of the absence of DNA testing 26 before the Magistrate. Counsel in written closing submissions submitted that it was unfortunate 27 that the Police did not invoke standard procedure in dealing with allegations of sexual assault. 28 Counsel said that the complainant’s underwear could have been seized and possibly may have 29 provided DNA evidence that may either have corroborated the complainant’s account or 30 exonerated the Appellant. 31 32 240830 Richard Wellington Dunn v R: SCA 37 of 2022. Coram Richards J, KC – Judgment Page 8 of 16

¶ [29] This is an issue of absence of evidence. It could neither exculpate nor inculpate. It would be 1 speculative to say otherwise. What the Magsiatre had to bear in mind was that there was an 2 absence of evidence in support of the complainant. 3 4

¶ [30] As to the failure to take witness statements, Counsel for the Appellant in submissions noted the 5 animosity between the father and the Appellant which meant that there was an unwillingness to 6 try to co-operate with the Appellant’s wife when she tried to find out what happened. The 7 submission is that the Police ought to have obtained these statements. Counsel gave the example 8 that no one asked the complainant why it was that after the second incident she went off and 9 slammed her door. No one asked her what she said about that. 10 11

¶ [31] My view is that the failure to obtain these statements cannot be said to be a serious miscarriage 12 of justice. These persons were not witnesses to the alleged events. Their evidence would be 13 limited to the complaints made and what was said by the complainant. The first person called by 14 the complainant was her stepmother who then called the Police. The defence were in possession 15 of the notes of what was said in that call. Secondly there is no property in a witness. The defence 16 were aware of them and could have sought the issue of summonses for their attendance if they 17 considered that they had material evidence. 18 19 GROUND 2 – FAILURE TO BRING EVIDENCE TO CHALLENGE CREDIBILITY 20 21

¶ [32] The Appellant’s submission is that the credibility of the complainant was not properly explored. 22 It is said that the Police documentation records that there was an allegation of inappropriate 23 touching in 2020. The complainant said that she had been touched by a thirteen-year-old cousin 24 when he was visiting the Cayman Islands from another country. The record from the Child Abuse 25 report is that it happened when the complainant resided in another country. 26 27

¶ [33] Counsel submits that the information from the child’ s mother is that this could not have happened 28 as no relative who was visiting would have been aged thirteen years. Defence Counsel’s 29 submission is that this means that the complainant fabricated the previous incident. 30 31 32 240830 Richard Wellington Dunn v R: SCA 37 of 2022. Coram Richards J, KC – Judgment Page 9 of 16

¶ [34] In addition, Counsel submits that the complainant’s full school and medical records were not 1 properly disclosed to the defence and that it is understood from her mother that there are a number 2 of other incidents which would have assisted the Court in a determination as to her credibility. 3 4

¶ [35] Four incidents are detailed by Counsel as follows: - 5 6

¶ [1] 8th February 2021 - complainant told father an untruth about having after school 7 classes. 8

¶ [2] 12th February 2021 - complainant was suspended for taking a razor blade to school and 9 trying to influence others to cut themselves. 10

¶ [3] 16th February 2021 - complainant was taken to hospital for having suicidal thoughts. 11

¶ [4] 18th February 2021 - complainant taken for mental health counselling and other 12 appointments. 13 14

¶ [36] Counsel said that on the complainant’s account almost everyone was abusive to her including her 15 grandmother and the helper. All this behaviour happened shortly before the allegations were made 16 against the Appellant. The behaviour showed a pattern where the complainant would lie to get 17 herself out of situations. 18 19

¶ [37] Counsel argues that there is a question whether the Court should have had access to all the 20 available information about the complainant in order to properly consider her credibility. Counsel 21 said that without looking at the significant background and without allowing the complainant’s 22 mother to give evidence about these issues, the Court fell into error. This is material which is 23 capable of placing the allegations in the context of the recent behaviour of the complainant. 24 25

¶ [38] Counsel said that there is information that the home was visited by a Social Worker on the 15th 26 May 2021 which raises the question whether or not any other professionals visited and spoke 27 with the complainant between the 13th June and 16th June 2021. Counsel submits: - 28 29 “ There is no evidence as to why a social worker was even appointed or whether or not 30 these reports might contain anything which is capable of explaining if there may be alternate 31 reasons for this complainant making allegations she did against [mother].” 32 33 240830 Richard Wellington Dunn v R: SCA 37 of 2022. Coram Richards J, KC – Judgment Page 10 of 16

¶ [39] Counsel said that there was a pattern where the complainant makes up allegations of abuse to 1 obtain the outcome which she wants. The complainant did not have a good relationship with the 2 Appellant and wanted her mother to herself. 3 4

¶ [40] Counsel said that all that the Summary Court had was an outline of the issues and not the full 5 picture. There would have been significantly more. 6 7

¶ [41] In response to an inquiry from this Court, Counsel said that the issue of incompetence of Counsel 8 is not being raised. Defence Counsel did what he could with the material which he had. 9 10

¶ [42] Counsel for the Respondent in reply submitted that the issue of the complainant’s credibility was 11 before the Summary Court. All the matters raised by the Appellant’s Counsel were brought to 12 the attention of the Court and the Magistrate summarised these. Counsel said that the ruling of 13 the Magistrate contained vital pieces of evidence on the issues when considering the credibility 14 of the witness. There was nothing to suggest that the witness had any motive for concocting the 15 allegation against the Appellant. 16 17

¶ [43] Counsel also notes that Defence Counsel Mr. Burke made extensive written submissions about 18 the previous complaints made by the witness and her behaviour. 19 20

¶ [44] The Police record as to the earlier allegations about a thirteen-year-old cousin does not give a 21 timeline as to when that allegedly occurred. 22 23

¶ [45] In response to the assertion that there was further material which was not provided, Counsel also 24 advises that: - 25 26 • The complainant’s school reports were obtained and disclosed. 27 • The Multi Safeguarding Hub (“MASH”) referral document was disclosed. 28 • There were no disclosure requests from the defence which were ignored. 29 • The mother of the complainant gave evidence on behalf of the Appellant and could and 30 did speak to other matters such as events in 2021. 31 32 33 34 240830 Richard Wellington Dunn v R: SCA 37 of 2022. Coram Richards J, KC – Judgment Page 11 of 16 GROUND 3 FAILURE TO ALLOW EVIDENCE 1 2

¶ [46] The submission on this ground is that the Court failed to allow the mother of the complainant to 3 give evidence as to the issues leading up to the complainant’s behaviour in the months and weeks 4 prior to the complaint. This meant that the Magistrate failed to hear evidence which was capable 5 of undermining the credibility of the complainant on this particular issue. Counsel says that the 6 end result of this failure is that the Appellant did not have a fair trial. 7 8

¶ [47] The Respondent submits in reply that the Magistrate did not fail to allow evidence of previous 9 complaints and conduct to be given. This evidence was allowed and considered. 10 11 ANALYSIS 12 13

¶ [48] Given the issues raised on this appeal I have to assess whether there is material which the 14 Magistrate ought to have considered or allowed into evidence, the absence of which would make 15 the conviction unsafe. In summary, that had this material been heard or considered it cannot be 16 said with any certainty that the same conclusion would have been reached. 17 18

¶ [49] It is of note that this is not a case where fresh or new evidence is said to exist of which the defence 19 was unaware. In some respects what is being said is that the unused material disclosed by the 20 prosecution should have been further explored because it might have revealed other material 21 which might impact the complainant’s credibility. 22 23

¶ [50] It is said that the complainant’s report as to the earlier allegation against a thirteen-year-old cousin 24 could not be true because according to her mother no person of that age visited in 2020. Even 25 putting aside that no timeframe is given in the report or the possibility of mistakes as to age and 26 time, this is material which appears to have been disclosed to the defence as part of the trial 27 process. Mother was called as a witness for the defence. 28 29 30 240830 Richard Wellington Dunn v R: SCA 37 of 2022. Coram Richards J, KC – Judgment Page 12 of 16

¶ [51] It is also clear from the written submissions made by defence Counsel at trial, Mr. Burke that this 1 evidence was in fact given by mother1. 2 3

¶ [52] Had the Magistrate heard evidence about this there would have been an obligation to give the 4 appropriate direction that this did not necessarily mean that the complainant was telling lies about 5 the instant offending. 6 7

¶ [53] I consider that many of the issues with the complainant which are raised by Counsel on this 8 appeal were fully before the Summary Court. 9 10

¶ [54] In Mr. Burke’s written submissions, paragraph 22 to 28 is under the heading, previous complaints 11 of the complainant. He details therein the allegations made by the complainant against her mother 12 and the helper. Counsel submitted that they provided examples of manipulation on the part of the 13 complainant to undermine her mother in setting behaviour boundaries. 14 15

¶ [55] Paragraphs 28 to 31 state: - 16 17 “28. Whilst also being away from the family home, [X] was excluded from school in 18 February 2021 for carrying a razor blade to school, leading to another student 19 cutting herself. (Tab 1) 20 21

¶ [29] After [X] had been removed from the family home, following D’s charge, in October 22 2021, [X] was again excluded for causing emotional distress to a fellow student and 23 bullying a new student. 24 25

¶ [30] This behaviour are examples of [Xs] behaviour when not under the direct guidance 26 of her mother, … 27 28

¶ [31] It is also worthy of note that in her ABE [X] was asked at p2, why might we make up 29 a lie up, do you think: [X] answered, “To get what we want”.” 30 31 1 Appellant’s Bundle page 148 – Submissions dated 14th April 2021 240830 Richard Wellington Dunn v R: SCA 37 of 2022. Coram Richards J, KC – Judgment Page 13 of 16

¶ [56] Counsel highlighted that there was no evidence from stepmother as to what had been said by the 1 complainant to her on the call on the 16th June 2021, (paragraph 44). 2 3

¶ [57] Counsel noted that: - 4 5 “46. [X]accepted in cross examination that she had complained to her social worker 6 regarding a 13-year-old cousin visiting from …, who touched her sexually. [X] 7 accepted she did not tell her mother, father or stepmother. 8 9

¶ [47] We know from [Mother] that no such visitor has ever been in the family home. 10 11

¶ [58] Also highlighted was what was said to be the complainant’s bizarre behaviour. 12 13 “48. D gave evidence in his police interview (p12) regarding a bizarre discussion with 14 [X] about a week before these allegations. D explained a conversation of a girl 15 following [X] with hair in her face, telling [X] to do stuff and liked seeing people in 16 pain.” 17 18

¶ [59] It is evident from all of this that much evidence was led and highlighted as to the complainant’s 19 behaviour prior to the allegations and that her credibility was being strongly challenged as a result 20 of this. 21 22

¶ [60] The Ruling of the Magistrate indicates that this was very much a focus of consideration. 23 24 25

¶ [61] In summarising the defence case, the Magistrate said this: - 26 27 “The Defendant surmises, that [X] is fabricating the allegations as she is “a troubled 28 child”, who, he says, lies against her parents to the other, and has had trouble at school. 29 This trouble he says, includes being suspended for carrying a razor blade to school and 30 threatening to kill herself. He also proffered a basis for his position that [X] is a “troubled 31 child”, by indicating that she is also under the care of Counsellors. It is against this 32 240830 Richard Wellington Dunn v R: SCA 37 of 2022. Coram Richards J, KC – Judgment Page 14 of 16 background that the Defendant, (who gave oral evidence) says that [X] is not to be 1 believed. 2 3 The Defendant’s wife (X’s mother) was called as a witness in support of her husband. This 4 witness gave evidence that X is “troubled”, and is seeing counsellors, and has been 5 suspended from school. She indicated that she was unable to speak directly to the 6 allegations made against the Defendant, as she was not there.” 7 8

¶ [62] Importantly the Magistrate adverted to the burden and standard of proof and directed herself as 9 follows: - 10 11 “19. I remind myself that my job is not to speculate about anything not presented in 12 evidence. I must assess only the evidence presented, and form my own judgment on the 13 matter and the issues of fact. If after considering all the evidence presented, I am satisfied, 14 such that I have no reasonable doubt and I am sure of the Defendant’s guilt I must find that 15 the Crown has proved its case and that he is guilty. If I have any reasonable doubt, I must 16 resolve that doubt in favour of the Defendant, and find him not guilty.” 17 18

¶ [63] There was consideration as to whether the conduct of the complainant created doubt. The 19 Magistrate stated: - 20 21 “I also bore in mind whether doubt was created by the evidence of [X] getting into 22 difficulties at school, and being under the care of counsellors and medical professionals. 23 Whilst there is evidence to support the view that [X] was suspended on two occasions in 24 2021 (in February and then in October), I made note that the October suspensions was 25 after the allegations surfaced in June 2021. I considered therefore, that this suspension 26 was of no relevance to the allegations which had been made several months prior. With 27 regards to the February suspension, in cross-examination when the matter was put to her, 28 [X] without hesitation, agreed with the suggestion that she had been “excluded from 29 school’ previously. She did not deflect nor seek to hide from this fact. Just the opposite, she 30 openly accepted that she was suspended as suggested to her. 31 32 240830 Richard Wellington Dunn v R: SCA 37 of 2022. Coram Richards J, KC – Judgment Page 15 of 16 … 1 2 (f) Like the June 13th incident, I had to consider whether her description was a made-up 3 story and that she was attempting to “pit her parents against each other” or whether her 4 troubles at school caused me to have doubt about the accuracy and reliability of her 5 description. I concluded that they did not. She may be a child who has been expelled from 6 school and who is under the care of a School Counsellor, but that does not mean that she 7 is a child who lied about this description.” 8 9

¶ [64] The Magistrate considered each offence separately and gave detailed reasons in each case for 10 finding the complainant to be a truthful witness. These included the detailed and specific nature 11 of the account which she provided, clear and cogent reason for not reporting the earlier incident, 12 the fact that there were no difficulties in the relationship between the two before the allegations 13 surfaced and her demeanor, among others. 14 15

¶ [65] The Magistrate did not believe the Appellant in material respects and rejected his account. 16 17

¶ [66] The conclusion was that the Magistrate was satisfied so that she was sure that the prosecution 18 had proven its case beyond a reasonable doubt. 19 20

¶ [67] Matters of the credibility of a witness are for the tribunal of fact. There is the opportunity to see 21 and hear the witnesses. There is nothing to suggest in this case, that the Magistrate failed to 22 consider all of the issues touching and concerning the complainant’s behaviour. There is every 23 indication that there was careful and detailed consideration of these matters. There is no evidence 24 that the wife of the Appellant was prevented from giving evidence which she sought to give in 25 support of her husband. In fact, there is every indication that she did such evidence. The 26 Appellant was represented at trial by competent and experienced Counsel. There is everything to 27 suggest that the Appellants’ case was put with vigor. 28 29

¶ [68] There is no basis to conclude that the conviction is unsafe. 30 31 32 33 240830 Richard Wellington Dunn v R: SCA 37 of 2022. Coram Richards J, KC – Judgment Page 16 of 16

¶ [69] No arguments were raised, or grounds advanced on this appeal as to sentence. In any event given 1 the nature of the offending, the sentence does not appear to be manifestly excessive or wrong in 2 principle. 3 4

¶ [70] The appeal against conviction is dismissed and the sentence is affirmed. 5 6 Dated this the 30th August 2024 7 8 The Hon. Justice Cheryll Richards KC 9 Judge of the Grand Court 10