R v AB and CD - Judgment

¶ ```html <table> <tr> <td>1</td> <td>IN THE GRAND COURT OF THE CAYMAN ISLANDS</td> </tr> <tr> <td>2</td> <td>CRIMINAL SIDE</td> </tr> <tr> <td>3</td> <td>INDICTMENT NO：0088 & 86/2015</td> </tr> <tr> <td>REGINA</td> </tr> <tr> <td>v.</td> </tr> <tr> <td>(1) AB</td> </tr> <tr> <td>(2) CD</td> </tr> <tr> <td>Appearances：</td> </tr> <tr> <td>Mr. Scott Wainwright for the Crown</td> </tr> <tr> <td>Mr. Crister Brady for AB</td> </tr> <tr> <td>Mr. Dennis Brady for CD</td> </tr> <tr> <td>Before：</td> </tr> <tr> <td>The Hon. Mr. Justice Timothy Owen Q.C.</td> </tr> <tr> <td>Trial：</td> </tr> <tr> <td>27th & 28th July 2016；1st-4th August 2016</td> </tr> <tr> <td>Delivery of Verdict Decision：</td> </tr> <tr> <td>15th September 2016</td> </tr> <tr> <td>HEADNOTE</td> </tr> <tr> <td>Criminal Law - Indecent Assault and Attempted Rape on a female minor - Verdict Judgment. - Defendants are relatives of the subject minor complainant. - Offences are alleged to have occurred over a protracted period in the home environment. - The case is based on a single witness's unsupported evidence against the adamant denials of two defendants. - The complainant's case is undermined and affected by the features of delay and incompetent investigation，which have hallmarked this case. - Verdict：Not Guilty.</td> </tr> </table> ```
```html <table> <tr> <td>1</td> <td>2</td> </tr> <tr> <td>3</td> </tr> <tr> <td>4</td> <td>1.</td> <td>The two defendants face an Indictment containing a total of 5 counts. In view of</td> </tr> <tr> <td>5</td> <td>the nature of the allegations and the clear need to afford protection by way of</td> </tr> <tr> <td>6</td> <td>anonymity to the single complainant in this case (who is still a child and a relative</td> </tr> <tr> <td>7</td> <td>of the two defendants)，it was agreed by all parties at the outset of the trial that in</td> </tr> <tr> <td>8</td> <td>according with the provisions of s.12 Youth Justice Law (2005 Revision) there</td> </tr> <tr> <td>9</td> <td>should be no reporting of the names of the defendants，the complainant or anyone</td> </tr> <tr> <td>10</td> <td>else whose naming might by implication tend to confirm the complainant's true</td> </tr> <tr> <td>11</td> <td>identity Accordingly，in this Judgment the complainant will be referred to as "X"，</td> </tr> <tr> <td>12</td> <td>the first defendant will be referred to as "AB" and the second defendant as "CD".</td> </tr> <tr> <td>13</td> <td>Any other witness the revelation of whose identity would tend to confirm X's real</td> </tr> <tr> <td>14</td> <td>name will be anonymised as indicated below.</td> </tr> <tr> <td>15</td> <td>2.</td> <td>The five counts on the Indictment are as follows：</td> </tr> <tr> <td>16</td> <td>Count 1：Attempted rape contrary to s.127 of the Penal Code (2010 Revision)：The</td> </tr> <tr> <td>17</td> <td>particulars being that，AB on a date unknown between the 19th August 2011 and</td> </tr> <tr> <td>18</td> <td>11th November 2012 at an address in George Town，Grand Cayman，Cayman</td> </tr> <tr> <td>19</td> <td>Islands attempted to have unlawful sexual intercourse (vaginal) with X without her</td> </tr> <tr> <td>20</td> <td>consent.</td> </tr> <tr> <td>21</td> <td>Count 2：Attempted rape contrary to s.127 of the Penal Code (2010 Revision)：The</td> </tr> <tr> <td>22</td> <td>particulars being that AB on a date unknown between the 19th August 2011 and</td> </tr> <tr> <td>23</td> <td>11th November 2012 at an address in George Town，Grand Cayman，Cayman</td> </tr> <tr> <td>24</td> <td>Islands attempted to have unlawful sexual intercourse (anal) with X without her</td> </tr> <tr> <td>25</td> <td>consent.</td> </tr> <tr> <td>26</td> </tr> </table> ```
```markdown # Verdict Judgment: R v. AB & CD. Ind. 88 and 86 of 2015 Coram: Owen J. (Actg.). Date: 15.09.2016 ## Count 3: Indecent assault contrary to s.132 (1) of the Penal Code (2010 Revision): The particulars being that AB on a date unknown between the 19th August 2011 and the 11th November 2012 at an address in George Town, Grand Cayman, Cayman Islands indecently assaulted X. ## Count 4: Attempted rape contrary to s.127 of the Penal Code (2010 revision): The particulars being that CD on a date unknown between the 19th August 2011 and 11th November 2012 at an address in George Town, Grand Cayman, Cayman Islands attempted to have unlawful sexual intercourse (vaginal) with X without her consent. ## Count 5: Indecent assault contrary to s.132 (1) of the Penal Code (2010 Revision): The particulars being that CD on a date unknown between the 19th August 2011 and the 11th November 2012 at an address in George Town, Grand Cayman, Cayman Islands indecently assaulted X. ### Opening the Case In opening the case, Mr Wainwright made clear that the Crown's position was that, with the exception of count 2 (which was a single allegation of attempted anal rape by AB), the charges were presented as specimen counts against a background of the complainant alleging multiple occasions on dates unknown within the Indictment period when she was the victim of either indecent assault or attempted rape at the hands of one or other defendant. The effect of laying a specimen count is to invite the tribunal of fact to conclude that the single offence of its type was committed during the period identified as the Indictment period. The prosecution relies on the evidence of the complainant to establish that the single specimen offence was committed in that period. The prosecution relies on the evidence of the complainant to establish that the single specimen offence was committed in that period. ```
TRIAL BY JUDGE ALONE The defendants elected trial by judge alone and I have reminded myself of the approach to be taken by a judge in such cases as described by Quin J. in the case of R v. George Dexter Evans Indictment No 18 of 2011 paragraphs 67 to 71. "The Defendant elected to be tried by a Judge Alone, rather than a Judge and Jury, pursuant to s.129 of the Criminal Procedure Code of the Cayman Islands. Our Court of Appeal first dealt with the duties of a Judge in Judge Alone trials in its judgment in K. Richards v. R 2001 CILR 496 when Justice Rowe stated: "When a trial judge sitting alone has advised himself to the applicable principles of law, and given himself any necessary warning, he must indicate clearly in his judgment his reasons for acting as he did, in order to demonstrate that he has acted with the requisite degree of caution in mind and has therefore heeded his own warning. No specific form of words is necessary for this demonstration, what is necessary is that the Judge’s mind upon the matter should be clearly revealed." In R. v. Dave Kennedy Whittaker Cr. App. R. No. 14 of 2006, the Court of Appeal gave some guidelines regarding the duties of a Judge in Judge Alone trials. In the Judgment of Mottley J.A. he adopted the Judgment of the former Lord Chief Justice of Northern Ireland Lord Lowry in R v. Thompson [1977] NI 74 in which he stated at page 83: "While on the subject I might say a word on the duty of the judge when giving judgment in a trial under the 1973 Act. He has no jury to charge and therefore will not err if he does not state every legal proposition and review every fact and argument on either side. His duty is not as in a jury trial to instruct laymen as to every relevant aspect of the law or to give a full and balanced picture of the facts for decision by others. His task is to reach conclusions and to give reasons to support his view and, preferably, to notice any difficult or unusual points of law in order that if there is an Appeal, it may be seen how his view of the law informed his approach to the facts." More recently our Court of Appeal in Randy Martin v. R Crim. App. R. 2 of 2010 delivered their reasons for dismissing the Appeal on the 7th December 2010. Mottley J.A. again adopting R v. Thompson [1977] NI 24 also adopted R v. Thain [1985] NI 457 where Lowry LCJ said at page 478: "Where the trial is conducted and the factual conclusions are reached by the same person, the same person may be expressed to be the tribunal of fact. It can safely be inferred that, when deliberating on a question of fact with many aspects, even more certainly than when tackling a series of connected legal points, a judge who is himself the tribunal of fact will (a) recognize the issues and (b) view in its entirety a case where one issue is interwoven with another." Verdict Judgment. R v. AB & CD. Ind. 88 and 86 of 2015 Coram: Owen J. (Actg.). Date: 15.09.2016 Page 4 of 45
Following Lowry LCJ in R v. Thompson and R v. Thain, Mottley J.A. said in Randy Martin v. R at paragraph 31: > From these cases the following guidance may be discerned. A judge sitting in a criminal case without a jury, in rendering his decision and giving his reasons for so concluding, is not required to review every fact and to detail each argument on which the prosecution and defence rely as if he were summing up to a jury. The judge must set out the conclusion reached and make clear the reasons for arriving at that conclusion. He is required to have regard to any difficult or unusual points of law and to show how those points of law have in anyway impacted the conclusion that he has reached." ### BURDEN AND STANDARD OF PROOF

¶ [5] I have reminded myself that the Crown have brought the case and that they must prove it. The standard of proof that they must achieve is to make me sure of guilt. Nothing less will do. Neither defendant bears any burden of proving anything, and it is not his task to prove his innocence, even in a case where he gives evidence. ### SEPARATE CONSIDERATION

¶ [6] I must give separate consideration to the 5 counts faced by the defendants and accordingly I must decide whether the prosecution has proved its case on each count in respect of each defendant. --- **Verdict Judgment, R v. AB & CD, Ind. 88 and 86 of 2015 Coram: Owen J. (Actg.), Date: 15.09.2016** Page 5 of 45
ELEMENTS OF THE OFFENCE AND THE ABSENCE OF ANY REQUIREMENT FOR CORROBORATION

¶ [7] The law concerning the offences is straightforward and has not been the subject of any dispute. The indecent assault counts allege that X was forced to perform oral sex on one or other defendant over a period of 15 months when she was between 10 and 11 years of age. Plainly, any such conduct, if proved, would constitute unlawful assaults of a sexual, indecent nature. The attempted rape allegations are of forcible efforts to penetrate X’s vagina or anus by the named defendant’s penis in circumstances which make clear that the act in question was done with intent and was more than merely preparatory to the commission of the full offence. No question of consent and *bona fide* belief as to X’s age was raised by way of defence.

¶ [8] There is no requirement in Cayman Islands law for corroboration in cases involving sexual offences and particularly cases involving children\footnote{See s. 41(1) Evidence Law (2011 Revision)}. Accordingly, the fact that, in this case, there is no supporting evidence for X’s allegations, does not therefore mean that, as a matter of law, the prosecution is bound to fail. On the other hand, the fact that there is no independent evidence capable of supporting X’s account is plainly something I must take into account when deciding whether or not the prosecution has discharged the burden of proof in relation to each count. Verdict Judgment. R v. AB & CD. Ind. 88 and 86 of 2015 Coram: Owen J. (Actg.). Date: 15.09.2016 Page 6 of 45
General Directions Appropriate to Sexual Offences ## Chapter 20 of the recently published England and Wales Crown Court Compendium (May 2016) contains important directions for the tribunal of fact (in England and Wales this is invariably a jury) in relation to the trial of sexual offences. These directions address matters such as the danger of stereotypes and assumptions about sexual behavior and reactions to non-consensual sexual conduct as well as the proper approach to dealing with historical allegations. I have reminded myself of these directions but rather than summarise them in general at the outset of my Judgment I will refer to them, as appropriate, when I turn to my findings later on in this Judgment. ### Character

¶ [10] AB is now a man of 38 years of age and with no previous convictions. His good character is of course not a defence to these charges but it is relevant to my consideration in two ways. First, AB has given evidence. His good character is a positive feature which I must take into account when considering whether I accept what he told me in his evidence by way of denial of the charges he faces. Secondly, the fact that he has not offended in the past may make it less likely that he acted as now alleged against him. That is something I must bear in mind when I assess his evidence as a whole.

¶ [11] CD is now aged 21 and is not of good character, having 3 convictions all dating back to 2012. These convictions are for burglary (x2) and theft. The fact that he has a criminal record is to be taken into account when assessing the significance of all of the evidence. Verdict Judgment. R v. AB & CD. Ind. 88 and 86 of 2015 Coram: Owen J. (Actg.). Date: 15.09.2016 Page 7 of 45
I have heard both about and from him and the circumstances in which the relevant allegations are made. CD is entitled to rely on the fact that although he has convictions for dishonesty he has none for violence or for sexual offences of any kind. To that extent it can fairly be said that the allegations made against him by X are out of character. In closing submissions, the issue of character was discussed in view of the different position that each defendant is in on this aspect of the case. I indicated that my view was that AB’s good character was obviously not in any way tainted by the fact that CD is a man of bad character and that CD was not positively assisted by the fact of AB’s good character save that insofar as both men were denying X’s allegations there was bound to be a degree of cross fertilization in terms of my overall assessment of whether the prosecution case was capable of making me sure of the guilt of each defendant. I did not understand any Counsel to dissent from this approach. In any event, as I will make clear when I explain my conclusions, this is not a case where the character of either defendant is decisive in my overall assessment of the proper verdicts. Verdict Judgment. R v. AB & CD, Ind. 88 and 86 of 2015 Coram: Owen J. (Actg.). Date: 15.09.2016 Page 8 of 45
DELAY The issue of delay arises in this case for three reasons. First, as will be clear from my summary of her evidence, X did not make her first complaint about the sexual abuse that she alleges against the defendants until at least 18 months (and possibly 5 years) had elapsed since the first alleged incident. Secondly, there was then a period of, as I find, inexcusable and wholly unexplained delay between the date of X’s first complaint on 16th November 2012 and the arrest and interview of the defendants in July 2014. Thirdly, there was then a further lengthy and wholly unexplained delay before the defendants were charged on 30th October 2015 which meant that the case did not come on for trial in the Grand Court until July 2016. The effect of this cumulative delay is that a period of almost 4 years elapsed between the date of X’s first complaint to the police and the trial before me of these defendants on grave charges of sexual assault. The defendant is now aged 15 but she was describing events which took place a long time ago, possibly when she was as young as 6 or 7 (on one version of her evidence). It is obvious that the memory of witnesses fades with time and it is equally true that, as time passes, lines of inquiry may close down or, as happened in this case with the loss of the notes taken by DC Howell of X’s first account to him of her allegations of sexual abuse, records can be lost which may significantly affect the fairness of the trial process. The truly lamentable quality of the police response to X’s first account of grave sexual abuse meant that potential witnesses who lived in the very house where the abuse was alleged to have taken place over a lengthy period and who were never approached to provide witness statements as taking their own account) were (on X’s present instructions) never approached to provide witness statements as taking their own account) were (on X’s present instructions) never approached to provide witness statements as taking their own account) were (on X’s present instructions) never approached to provide witness statements as taking their own account) were (on X’s present instructions) never approached to provide witness statements as taking their own account) were (on X’s present instructions) never approached to provide witness statements as taking their own account) were (on X’s present instructions) never approached to provide witness statements as taking their own account) were (on X’s present 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```html <table> <tr> <td>1</td> <td>15.</td> <td>Of course, the mere fact of delay is not necessarily fatal to a successful prosecution</td> </tr> <tr> <td>2</td> <td>and it is frequently the case that courts are called upon to try cases where victims of</td> </tr> <tr> <td>3</td> <td>sexual abuse come forward years and sometimes decades after the alleged abuse</td> </tr> <tr> <td>4</td> <td>took place. However delay is always the enemy of fairness and justice and, as I will</td> </tr> <tr> <td>5</td> <td>make clear when I come to my findings, I find that the inexcusable, wholly</td> </tr> <tr> <td>6</td> <td>unexplained delay and grossly incompetent police response to X’s first allegations</td> </tr> <tr> <td>7</td> <td>of abuse have caused prejudice to both X and the defendants and ultimately had a</td> </tr> <tr> <td>8</td> <td>significant impact on my ability to be sure of guilt in relation to both the accused.</td> </tr> <tr> <td>9</td> </tr> <tr> <td>10</td> </tr> <tr> <td>11</td> </tr> <tr> <td>12</td> </tr> <tr> <td>13</td> </tr> <tr> <td>14</td> </tr> <tr> <td>15</td> </tr> <tr> <td>16</td> </tr> <tr> <td>17</td> </tr> <tr> <td>18</td> </tr> <tr> <td>19</td> </tr> <tr> <td>20</td> </tr> <tr> <td>21</td> <td>22</td> </tr> <tr> <td>23</td> </tr> <tr> <td>24</td> </tr> </table> Verdict Judgment. R v. AB & CD. Ind. 88 and 86 of 2015 Coram: Owen J. (Actg.). Date: 15.09.2016 Page 10 of 45 ```
Summary of Prosecution's Evidence ## The Complainant's Evidence

¶ [1] The Crown's main witness was X. She was born on 19th August 2001 and thus was almost 15 years of age when she appeared before me as the Crown's sole witness to the primary facts. The majority of her evidence in chief came in the form of video interviews conducted in purported compliance with the principles of Achieving Best Evidence ("ABE") on Monday 19th November 2012 (when she was 11) together with a follow up ABE interview in May 2014.

¶ [2] Before the initial ABE interviews were recorded, she had first made allegations of sexual abuse to a person in authority in the course of a counselling session at her primary school on Friday 16th November 2012. These allegations against her uncle and cousin were made to Ms. RC who is a volunteer for the Cayman Outreach Association (Extended After School Program) and were soon after repeated to a Ms. AH who is a school counsellor. In light of the training they had received, neither Ms. RC nor Ms. AH sought to question X in detail about the allegations once they were made but, instead, drew them immediately to the attention of the Department of Children and Family Services (DCFS) in the form of an email to a Ms. CC timed at 2.17 p.m. on 16th November 2012. Ms. AH also made contact with X's mother in order to inform her of what X had just told her concerning sexual abuse by her uncle and cousin and an email timed at 2.38 p.m. on 16th November 2011.

¶ [3] N2 sets out M of the conversation she had with X on 16th November 2011. AH's account with X's mother (who was a witness before me) is as follows: "X told me that she had been sexually abused by her uncle and cousin. X said that she had been abused by her uncle and cousin for a long time. X said that she had been abused by her uncle and cousin for a long time. X said that she had been abused by her uncle and cousin for a long time. X said that she had been abused by her uncle and cousin for a long time. X said that she had been abused by her uncle and cousin for a long time. X said that she had been abused by her uncle and cousin for a long time. X said that she had been abused by her uncle and cousin for a long time. X said that she had been abused by her uncle and cousin for a long time. X said that she had been abused by her uncle and cousin for a long time. X said that she had been abused by her uncle and cousin for a long time. 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¶ [18] To complete the sequence of events prior to the ABE interviews, X also made allegations of abuse to Detective Dave Howell, an officer in the Family Support unit of the Royal Cayman Islands Police Force (RCIPS), in the course of a meeting at George Town police station on 17th November 2012. X had attended the police station accompanied by her paternal grandmother and a female friend of the family, in order to make a formal complaint of sexual abuse. That meeting, which lasted "about an hour or so" according to DC Howell, was not video recorded but DC Howell said that he took some two to two and a half pages of notes of the discussion. But he went on to explain that, despite diligent searching, the notes have now been lost and so there exists no contemporaneous record of the first detailed account given by X to an investigating police officer of her allegations of sexual abuse. I will deal with DC Howell's evidence in greater detail when I come to summarise his evidence.

¶ [19] X's ABE 2012 and 2014 interviews were played in court in full in the presence of X. After they were completed, Mr Wainwright asked some supplementary questions in chief before she was cross-examined by counsel for the accused. Since the conclusion of the trial I have viewed the ABE interviews once again from start to finish with the assistance of the transcripts. The interviews last approximately 3.5 hours in all and for obvious reasons some of that time is taken up with the interviewing officer attempting to put X at her ease and seeking answers to questions that are not directly relevant to the allegations against the defendants. What follows therefore is a brief summary of the essence of what X alleged against the defendants and the significance in the context of assessing the reliability of the evidence as a whole. Verdict Judgment. R v. AB & CD. Ind. 88 and 86 of 2015 Coram: Owen J. (Actg.). Date: 15.09.2016 Page 12 of 45
X told the RCIPS officer who conducted the ABE interview on 19^th November 2012, Detective Elizabeth Berns, how she first came to tell Ms. RC that "two boys troubling me". She had been explaining that her mother treated her unfairly compared to her siblings by making her clean the house while her sisters were treated like a princess and her brothers were allowed to play games. She also described how her mother was violent to her. When asked what she meant by boys "troubling her" she replied "they were assaulting me, sex harassment so I call it" and explained that by referring to "the boys" she was referring to her uncle, "AB", and her cousin "CD" and that "both of them want me to suck their penis and they will force me to do things that I don't want to do". She said she had told Ms. AH about this and also that she had told Ms. AH about the fact that, although her parents no longer live in the same house, her father would sometimes visit and that her parents would have sex "lots of times" in the same bed while she, X, was in the same bed and while her brothers were in the same room albeit in a smaller bed. She said this made her feel uncomfortable. X was asked about what had happened after her mother came to pick her up at school following her discussion with Ms. AH. Her evidence was hard to follow on this issue but in essence she described how her mother had become angry with her as a result of discovering what she had told Ms. RC and Ms. AH – shouting at her and telling her she had ruined everything. X said: "she was saying that, she was saying to me that she is the mother of me and I must protect you but then she wing me she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me 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protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me 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protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me 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protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me 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protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me 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protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me 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protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me 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protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and she wasn't protectin' me and
On returning to their home to pick up clothes (because X was going to stay at her paternal grandmother's house), X described how her mother hit her on the head, causing her ear to hit the wall and become numb. At the end of the first ABE interview, Detective Berns asked X when was the last time that something happened with AB or CD, and X referred to an incident on the previous Thursday when CD had lifted up the sheet while X was asleep and "he touch my feet then he was going up my leg to touch my bum and I told him to leave me alone he was giving me money but I never took the money from him". I understood her to be suggesting that CD was offering her money in exchange for sexual favours. In the second ABE interview on 19th November 2012, X told Detective Berns that she had first told her mother about AB and CD's behaviour "a long time ago" when she was 9 or 10 years old but when asked when the abuse had begun she said "a few months ago". She said that when she told her mother about the abuse, her mother did nothing. Detective Berns returned again to the question of what X meant by the boys troubling her and X confirmed that she meant "forcing me to suck their penis always touching me in the way I don't want to be touched". She explained what she meant by forcing her, stating "like when I try to run away they catch me and they always hold me tight they never let go they hold my arm and when I try to go away they asking keep saying please and I always say no they won't let me go force me". At pages 40-44 of the ABE transcripts, X gave a specific example of an occasion when AB dragged her from the bathroom (where she had gone from her grandmother's room) into his bedroom along the corridor and how he "ty head and then he start to hold my head while put my head on his penis. d then that is not me to suck After he walk his then he move my head the part nts leaves me alone I go to the bathroom and rinse out my mouth and go to bed." Verdict Judgment. R v. AB & CD. Ind. 88 and 86 of 2015 Coram: Owen J. (Actg.). Date: 15.09.2016 Page 14 of 45
```html <table> <tr> <td>1</td> <td>23.</td> <td>On page 45, X was asked if any other part of AB's body was touching her and she</td> </tr> <tr> <td>2</td> <td>24.</td> <td>25.</td> <td>26.</td> <td>27.</td> <td>28.</td> <td>29.</td> <td>30.</td> <td>31.</td> <td>32.</td> <td>33.</td> <td>34.</td> <td>35.</td> <td>36.</td> <td>37.</td> <td>38.</td> <td>39.</td> <td>40.</td> <td>41.</td> <td>42.</td> <td>43.</td> <td>44.</td> <td>45.</td> <td>46.</td> <td>47.</td> <td>48.</td> <td>49.</td> <td>50.</td> <td>51.</td> <td>52.</td> <td>53.</td> <td>54.</td> <td>55.</td> <td>56.</td> <td>57.</td> <td>58.</td> <td>59.</td> <td>60.</td> <td>61.</td> <td>62.</td> <td>63.</td> <td>64.</td> <td>65.</td> <td>66.</td> <td>67.</td> <td>68.</td> <td>69.</td> <td>70.</td> <td>71.</td> <td>72.</td> <td>73.</td> <td>74.</td> <td>75.</td> <td>76.</td> <td>77.</td> <td>78.</td> <td>79.</td> <td>80.</td> <td>81.</td> <td>82.</td> <td>83.</td> <td>84.</td> <td>85.</td> <td>86.</td> <td>87.</td> <td>88.</td> 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After initially appearing to be unwilling to say more about CD’s actions, on p.54 of the Transcript X describes an incident one night when CD grabbed her as she walked away from the bathroom, pulled off her pants and tried to put “his private parts into mine but it hurt so I told him no...he stopped”. She explained that by reference to her private parts she meant her vagina and that when he tried to do this to her she was trying to get away from him but that he was holding her tightly by her arms. She said she could not remember how old she was when this incident happened and that she had told no one about it. She was asked if AB and CD ever did things to her when they were both present and she said no. She was then asked if these things ever happened with her brother or sister in the same room. She said no but they did happen with her female cousin (“EF”). When asked how she knew this, she said that on one occasion CD called her into his room and EF was in the room. CD locked the door and she saw EF sucking CD’s penis. Detective Berns asked X if AB or CD had ever done anything to her brothers and she replied “I never saw anything but I know CD was forcing them” because she had asked them. On pages 61-62 Detective Berns is recorded as asking X about whether she had had sex education at school and explained she had. In response to some basic human anatomy questions designed to establish X’s level of understanding, including whether a woman has a penis, X referred to having seen an episode of Law and Order where a little girl was found to have a small penis. I refer to this exchange because Couras to suggested provided X with ideas which she had used to concoct a false accusation of sexual abuse.
When Detective Berns asked whether AB or CD "ever put anything in your bottom" X responded by saying that only AB had done this but she could not remember when he had done it. That concludes my summary of the ABE process on 19th November 2012. More than a year was to pass before any apparent effort was made to progress the police investigation into what were, on any view, very serious allegations of prolonged sexual abuse of a young girl in her own home by her uncle and cousin. AB was finally interviewed on 4th April 2014, some 17 months after X had given her ABE account to the police, and a decision was then taken to interview X once again on 13th May 2014. On this occasion, the interviewing officer was Detective Howell. He explained that the sole purpose was to see if X could give further details concerning dates and others matters to give to the DPP's office and to ensure what she was saying was the same as her account in November 2012. This third interview lasted some 30 minutes and in what was, in my view, a poorly conducted interview X in essence confirmed the basic allegations against both defendants. She was unable to give any further help in terms of the dates when the various assaults occurred but did say in relation to one incident when CD had asked him to sit on his penis that at the time the house was occupied by her grandmother, her two uncles, her mother, her brothers and her sister. She also confirmed her belief that CD had forced his sister, EF, to suck his penis "ten or seven times" but, contrary to her account on 19th November 2012, she said that this had not happened.
```html <table> <tr> <td>1</td> <td>27.</td> <td>After X's ABE interviews had been shown to the Court, Mr Wainwright asked</td> </tr> <tr> <td>2</td> <td>some further questions in chief - no doubt, bearing in mind that it was now almost</td> </tr> <tr> <td>3</td> <td>4 years since her first ABE account and the fact that she was now aged 15.</td> </tr> <tr> <td>4</td> <td>Beginning with AB, he asked how many times AB had made her suck his penis and</td> </tr> <tr> <td>5</td> <td>X said "I can't remember but it was...I can't remember". He then asked how long</td> </tr> <tr> <td>6</td> <td>it had been going on before he spoke to Ms. RC and her answer was "maybe three</td> </tr> <tr> <td>7</td> <td>or four years". Pointing out that he had spoken to Ms. RC in 2012 when she was</td> </tr> <tr> <td>8</td> <td>eleven, Mr Wainwright asked how old she was when "this first started" and she</td> </tr> <tr> <td>9</td> <td>replied "say six or seven". When asked whether there was any reason why she</td> </tr> <tr> <td>10</td> <td>didn't tell anyone before she had told Ms. RC, X said "I'm not sure but at the time</td> </tr> <tr> <td>11</td> <td>I didn't know it was an abuse and it was a wrong thing". Mr Wainwright asked</td> </tr> <tr> <td>12</td> <td>when she found it was wrong and she said "when I told my mom" which she said</td> </tr> <tr> <td>13</td> <td>happened a couple of months before she spoke to Ms. RC. She said that she had</td> </tr> <tr> <td>14</td> <td>not told her mother about AB and CD trying to force their penis into her bum or</td> </tr> <tr> <td>15</td> <td>vagina explaining "I'm not sure but when I speak I can't remember like, stuff at the</td> </tr> <tr> <td>16</td> <td>time, so I just told her what I can remember". She went on to explain that "when I</td> </tr> <tr> <td>17</td> <td>told my mom that AB tried to force his penis into my behind that was like a couple</td> </tr> <tr> <td>18</td> <td>of months after I told her".</td> </tr> <tr> <td>19</td> <td>20</td> <td>28.</td> <td>Later Mr Wainwright returned to the issue of what she had said AB had done,</td> </tr> <tr> <td>21</td> <td>asking "you said in your video to the police that AB tried to put his penis in</td> </tr> <tr> <td>22</td> <td>your bottom? s sir". In rep the house th</td> </tr> <tr> <td>23</td> <td>25</td> <td>assaults would take place and who were "anywhere in the house" and that her grandmother, her brothers and sisters</td> </tr> <tr> <td>24</td> <td>26</td> <td>present in the house at aid, the</td> </tr> <tr> <td>27</td> <td>would be present there also.</td> </tr> <tr> <td>28</td> </tr> </table> Verdict Judgment. R v. AB & CD. Ind. 88 and 86 of 2015 Coram: Owen J. (Actg.). Date: 15.09.2016 Page 18 of 45 ```
When asked whether there was any reason why she didn’t go straightaway and tell someone what was happening, she said “No sir”. Finally, Mr Wainwright asked questions about whether X had seen anything occur with CD and EF. X replied “I did see, that was once” and said “she was sucking his penis” and that when this happened she (X) was 8 or 9 years old. She also confirmed that her brothers had told her that things had happened to them involving CD and that she was 8 or 9 when this happened. X was cross examined with appropriate restraint and moderation by Counsel for AB and CD. While both Mr Crister Brady for AB and Mr Dennis Brady for CD sought to test further various aspects of X’s evidence in chief, in the end both of them ultimately put to X that her allegations of sexual assault were simply untrue. She denied this. In an attempt to explore reasons why X might have made up these allegations against her uncle and cousin, it was suggested to her that as she grew up she had watched a lot of TV including Law & Order and that “a lot of that had to do with sexual offences”. It was also suggested that she had told the police about AB forcing her to suck his penis because she wanted some attention from her mother. Mr Crister Brady spent some time exploring the fact that his client, AB, worked during the day and the night with a view to implying, as I saw it, that there would not have been any opportunity to assault her as she alleged. Mr Dennis Brady for CD adopted a similar line, returning once again to the issue of the TV series Law and Order and a particular episode where a young girl was molested by a man in the house. He also asked X about the possibility that the alleged events could have happened without others in the house being aware of what was going on. Verdict Judgment. R v. AB & CD. Ind. 88 and 86 of 2015 Coram: Owen J. (Actg.). Date: 15.09.2016 Page 19 of 45
```html <table> <tr> <td>1</td> <td>To all the suggestions that she had either imagined being assaulted or made up the</td> </tr> <tr> <td>2</td> <td>allegations, X said this was not true. In anticipation of the fact that EF and one of</td> </tr> <tr> <td>3</td> <td>X's brothers were to be called as defence witnesses, Counsel for CD put to X that</td> </tr> <tr> <td>4</td> <td>what she had said about seeing EF giving oral sex to CD and her claim that her</td> </tr> <tr> <td>5</td> <td>brothers had told her that CD had forced them to suck his penis were all untrue.</td> </tr> <tr> <td>6</td> <td>She denied this. He put to her that she had made up the allegations of sexual abuse</td> </tr> <tr> <td>7</td> <td>because she was unhappy living in the house as a result of her mother's unfair</td> </tr> <tr> <td>8</td> <td>treatment of her (“you were treated like a Cinderella”) and she wished to be</td> </tr> <tr> <td>9</td> <td>removed from the home environment.</td> </tr> <tr> <td>10</td> <td>11</td> <td>RECENT COMPLAINT</td> </tr> <tr> <td>12</td> <td>30.</td> <td>The prosecution called three witnesses whose testimony was admitted (without</td> </tr> <tr> <td>13</td> <td>objection by the defence) on the basis it was evidence of recent complaint which</td> </tr> <tr> <td>14</td> <td>demonstrated consistency on the part of the complainant and which therefore</td> </tr> <tr> <td>15</td> <td>tended to strengthen her credibility.</td> </tr> <tr> <td>16</td> <td>17</td> <td>31.</td> <td>Ms. RC, who is an accountant by training and a volunteer for the Cayman Outreach</td> </tr> <tr> <td>18</td> <td>Association (Extended After School programme), explained that since February</td> </tr> <tr> <td>19</td> <td>2012 she had been providing assistance at X's primary school in a programme</td> </tr> <tr> <td>20</td> <td>focused on children perceived to be at risk. X was one such child and she had</td> </tr> <tr> <td>21</td> <td>attended regularly at the sessions some 2-3 days a week. She described how at one</td> </tr> <tr> <td>22</td> <td>session (which it was clear had taken place on 15th November 2012)</td> <td>24</td> <td>her mother said at her if there should have been a timely</td> </tr> <tr> <td>23</td> <td>called “Aboutally comp</td> <td>25</td> <td>before she became tearful and said that her Uncle had touched her on her “butt and</td> </tr> <tr> <td>26</td> <td>breast”.</td> </tr> </table> Verdict Judgment. R v. AB & CD. Ind. 88 and 86 of 2015 Coram: Owen J. (Actg.). Date: 15.09.2016 Page 20 of 45 ```
```html <table> <tr> <td>1</td> <td>2</td> <td>3</td> <td>4</td> <td>5</td> <td>6</td> <td>7</td> <td>8</td> <td>9</td> <td>10</td> <td>11</td> <td>12</td> <td>13</td> <td>14</td> <td>15</td> <td>16</td> <td>17</td> <td>18</td> <td>19</td> <td>20</td> <td>21</td> <td>22</td> <td>23</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>28</td> <td>29</td> <td>30</td> <td>31</td> <td>32</td> <td>33</td> <td>34</td> </tr> <tr> <td>Ms. RC did not probe the allegation further as she had been trained not to ask the</td> </tr> <tr> <td>“who/what/when/where/why” questions in such circumstances. She said she</td> </tr> <tr> <td>removed X from the group and described her as crying for about an hour. She</td> </tr> <tr> <td>explained that the next day she spoke to Ms. AH， the school counselor， and passed</td> </tr> <tr> <td>on what had happened.</td> </tr> <tr> <td>32.</td> <td>Ms. AH， who is a licensed psychologist gave evidence and confirmed that after</td> </tr> <tr> <td>speaking to Ms. RC about what she had been told the previous day she spoke to X</td> </tr> <tr> <td>herself in a 30-minute meeting in her Counselling office. She took no notes during</td> </tr> <tr> <td>the meeting but， immediately after， she sent an email to Ms. CC at the DCFS，</td> </tr> <tr> <td>summarising what X had just told her. She produced a total of three emails sent at</td> </tr> <tr> <td>2.17 p.m.， 2.38 p.m. and 5.04 p.m. and the first of these said as follows：</td> </tr> <tr> <td>“...X told me that her uncle AB (mother's brother who lives in the same</td> </tr> <tr> <td>house as X， her mother and younger siblings) has been approaching her</td> </tr> <tr> <td>for some time (unclear of exactly how long) and asking her to touch his</td> </tr> <tr> <td>private parts and forcing her to suck his penis. She demonstrated how he</td> </tr> <tr> <td>would grab and pinch her cheeks with his hand. She thought that the last</td> </tr> <tr> <td>time that he did this was in the summer.</td> </tr> <tr> <td>She also indicated that a cousin of hers， CD， visits the home frequently and</td> </tr> <tr> <td>does the same thing. She described CD as being around 18 years of age</td> </tr> <tr> <td>and using drugs. She is very bothered by CD's approaches because they</td> </tr> <tr> <td>are more frequent and more recent than her Uncle....</td> </tr> <tr> <td>X's sense of the sequence of events was not very exact.”</td> </tr> </table> ```
The second email reported on the discussion that Ms. AH had had with X’s mother but as she was never called as a witness, the contents of the email are strictly inadmissible and I will not summarise what was said – save to record the fact that as a result of speaking to X’s mother. Ms. AH understood that she intended to go to the police to report X’s complaints. Ms. AH explained that her role was not to investigate the allegations but to protect the welfare of a child. She did not probe the allegations made but she did speak to a Sergeant Scott of the Family Support Unit (FSU) who confirmed that X’s mother should go straight to the Central police station in George Town. In the context of her observation that X had trouble explaining the sequence of events, she confirmed that X was known to be a child with learning difficulties – having been so diagnosed by an educational psychologist. Under cross examination by Counsel for AB, Ms. AH also confirmed that there had been several previous occasions when she had been involved with X, explaining that X frequently had no food to eat at school and that her parents were neglectful. She would feed X herself and on three or four occasions she had had significant counseling sessions with her although she had not previously mentioned anything about sexual abuse. She felt that X needed more attention from her mother. The third recent complaint witness was X’s paternal grandmother, “GH”. She confirmed that X told her on Saturday 17th November 2012 that both defendants had molested her. X said they forced her to suck their penises and “they tried to put their penises and bottom which on her bottom” but GH could not remember. GH decided to go straight to the police station and took X with her and she was present when X was interviewed by DC Howell. Verdict Judgment. R v. AB & CD. Ind. 88 and 86 of 2015 Coram: Owen J. (Actg.). Date: 15.09.2016 Page 22 of 45
The sole police witness called by the prosecution was Acting Detective Sergeant Dave Howell who is currently attached to the Family Support Unit (FSU) and who was the officer (then a constable) who met X and her grandmother when they attended at George Town police station on the afternoon of Saturday 17th November 2012. He explained that as a result of GH relaying an allegation to him, he spoke to X “who made several disclosures to me”. The discussion with X on the second floor of the police station lasted an hour or so and although no recording was made he took two to two and a half pages of notes on an A4 size pad. When asked where the notes were, Detective Howell said that despite a diligent search for his notebook he has been unable to locate it. When asked whether he was able to recall the general nature of what X disclosed, he said that “X reported that over a period of time two male relatives, AB and CD, being her uncle and cousin, had been forcing her to perform sexual acts on them, naming that they were forcing her to suck their penis and also that they tried to have sex with her vaginally and anally”. He could not recall which one it was that was attempting to have vaginal sex and which one anal. He confirmed that he was present during the ABE interviews conducted by Detective Berns who had his notes with her. He said that DC Berns is still an officer with the RCIPS and he had spoken to her earlier in the day but that she did not have a copy of his notes. Mr Wainwright asked Detective Sergeant Howell to explain what had been happening with the investigation between November 2012 and May 2014 and his answer was as follows: | Verdict Judgment, R v. AB & CD. Ind. 88 and 86 of 2015 Coram: Owen J. (Actg.). Date: 15.09.2016 | | --- |
The investigation was not – whilst I was the on call officer at the time in November, the investigation was not actually assigned to an officer for it to progress and I think inadvertently it stalled and until it was we realised the error nothing was done of significance in terms of bringing the accused to be interviewed."

¶ [36] I was concerned to explore this answer in greater detail myself after cross examination had been completed and asked Detective Howell to explain how the case had been allowed to go to sleep for some 18 months – bearing in mind that by the end of the ABE interviews on 19th November 2012, the police had gathered evidence of grave sexual assaults carried out by two adult men on a young child. I asked Detective Howell whether he was in any doubt about the nature of the allegations and he said that he was not. Bearing in mind he was then a constable, I asked who the head of the FSU was at the time and who made decisions at the time to assign a case to particular officers. He explained that the head was and is an Inspector Burton and that decisions on allocation of cases were made by a Detective Sergeant Morris. Both Officers Burton and Morris were aware of the ABE interviews and he personally informed DS Morris about the evidence and the allegations made by X. Detective Howell said that as far as he was aware, an investigation should automatically have commenced based on the ABE materials. On the basis that neither Inspector Burton nor DS Morris were to be called as prosecution witnesses, I asked him whether he could help the court as to why the case was dormant for some 18 months. His answer was "each officer has, and I think at the time it was not assigned to my case load and so I inadvertently overlooked the investigation." Verdict Judgment. R v. AB & CD. Ind. 88 and 86 of 2015 Coram: Owen J. (Actg.). Date: 15.09.2016 Page 24 of 45
When I asked how he could "inadvertently" overlook such a serious allegation, his answer was "because during that time I dealt with other investigations and whilst this one was not on the workload it went dormant". He said that when he left the meeting with DS Morris after discussing X's allegations he didn't know whether she was planning to assign the case to him. He could not recall what prompted the case springing suddenly into life in April 2014 with the decision to arrest and interview AB. He confirmed that he had retained his original notes of the first interview with X until at least June 2015 as he had been asked for copies of notes in another matter recorded in the same notebook and had access to the notebook then. He went on to say that subsequently he had moved to a new office and the notes had somehow disappeared. | Verdict Judgment. R v. AB & CD. Ind. 88 and 86 of 2015 Coram: Owen J. (Actg.). Date: 15.09.2016 | | --- | --- | | Page 25 of 45 |
THE TAPE RECORDED INTERVIEWS OF THE DEFENDANTS

¶ [37] In the course of Detective Howell’s evidence the tape recorded interviews under caution of each defendant were played to the court.

¶ [38] The first to be interviewed on 4th April 2014 was AB. His interview lasted some 20 minutes and was conducted by Detective Howell. After he was told by Detective Howell that he was investigating a report made in November 2012 that he “had put your penis in X’s mouth asking her to perform oral sex sometime before” AB answered all questions put to him. He denied the allegation as he denied trying to put his penis “in X’s behind”. Further questions were put about his relationship with his sister (X’s mother), why his sister moved out of the house, whether his sister had ever asked him about X’s allegation that he had forced her to perform oral sex on him and whether he had ever been alone in a room with X. He said his sister moved out “because of something between me and X” but said his sister had never asked him about the allegation that he had forced X to perform oral sex and he denied ever being in a room alone with X. When asked why X would make up allegations of sexual abuse against him he replied “I wouldn’t know that bro seriously”.

¶ [39] CD was interviewed for some 17 minutes by Detective Howell on 11th July 2014. After asking background questions concerning various family members and who was living in the house and in which rooms at the time when X was alleging she had been sexually assaulted by AB, Detective Howell put the allegation to him that he had forced his penis on her several occasions. CD replied: “I don’t know what you’re talking about.” Verdict Judgment. R v. AB & CD, Ind. 88 and 86 of 2015 Coram: Owen J. (Actg.). Date: 15.09.2016 Page 26 of 45
```html <table> <tr> <td>1</td> <td>“..I remember that was going around my family about X had told her mommy</td> </tr> <tr> <td>2</td> <td>that I did that but I did not do that but I will admit something that her and her</td> </tr> <tr> <td>3</td> <td>older sister [AA]， they are very weird girls they used to tell me that they like</td> </tr> <tr> <td>4</td> <td>me and they want to be my girlfriend and I tell them I can't do that because we</td> </tr> <tr> <td>5</td> <td>family so yeah stuff used to be like that...it's sort of a weird family.”</td> </tr> <tr> <td>6</td> <td></td> </tr> <tr> <td>7</td> <td>40.</td> <td>When Detective Howell asked why he thought that X would say that he did these</td> </tr> <tr> <td>8</td> <td>things to her， CD said：</td> </tr> <tr> <td>9</td> <td></td> </tr> <tr> <td>10</td> <td>“I have no idea why she is saying these things because she said that my uncle</td> </tr> <tr> <td>11</td> <td>AB did it too and I know my uncle wouldn't do anything like that. I don't know</td> </tr> <tr> <td>12</td> <td>maybe or not but she told these things on me and my uncle and obviously it</td> </tr> <tr> <td>13</td> <td>bothers the family. I have no idea what's going on with this little girl and its</td> </tr> <tr> <td>14</td> <td>been going on like that for years and I really want to get it over with because I</td> </tr> <tr> <td>15</td> <td>got into an argument with my girlfriend this morning because of the same</td> </tr> <tr> <td>16</td> <td>foolishness. My aunt she brought it up with my girlfriend and we got into a big</td> </tr> <tr> <td>17</td> <td>argument that I did this with my cousins.”</td> </tr> <tr> <td>18</td> <td></td> </tr> <tr> <td>19</td> <td>41.</td> <td>In answer to the question whether there were any occasions when he was alone</td> </tr> <tr> <td>20</td> <td>with X， CD said：</td> </tr> <tr> <td>21</td> <td></td> </tr> <tr> <td>22</td> <td>“there's never any occasions when I'm alone with X， there's always cousins</td> </tr> <tr> <td>23</td> <td>running around the house， family running around the house. Friends running</td> </tr> <tr> <td>24</td> <td>around the house， there probably was never a time that me and X was alone</td> </tr> <tr> <td>25</td> <td>for a good 2 minutes in that house and I barely be at that house because I used</td> </tr> <tr> <td>26</td> <td>to do a lot of activities. I used to do about 10 different sports， always had</td> </tr> <tr> <td>27</td> <td>homework， used to go over my friends and stuff so I didn't really see X much or</td> </tr> <tr> <td>28</td> <td>family. So my times when family or her family was around me and he</td> </tr> <tr> <td>29</td> <td>be around here was not r used to get</td> </tr> <tr> <td>30</td> <td>along and and her fam</td> </tr> <tr> <td>31</td> <td>of family problems where there was stealing going on around the house so</td> </tr> <tr> <td>32</td> <td>most of the family used to keep their corners and I never really used to hang</td> </tr> <tr> <td>33</td> <td>out much with the kids.”</td> </tr> </table> Verdict Judgment. R v. AB & CD. Ind. 88 and 86 of 2015 Coram: Owen J. (Actg.). Date: 15.09.2016 Page 27 of 45 ```
```html <table> <tr> <td>1</td> <td>42.</td> <td>When specifically asked if he had ever forced X to suck his penis or tried to push</td> </tr> <tr> <td>2</td> <td>his penis into her behind or anything like that, he said “I never tried to do nothing</td> </tr> <tr> <td>3</td> <td>sexual with X or any of my family or any of my cousins.”</td> </tr> <tr> <td>4</td> </tr> <tr> <td>5</td> <td>43.</td> <td>At the invitation of Mr Dennis Brady on behalf of CD, I was invited to view the</td> </tr> <tr> <td>6</td> <td>house where X alleged all the sexual assaults had taken place. Accordingly, a view</td> </tr> <tr> <td>7</td> <td>of the house was organised and I was able to walk through the entire building and</td> </tr> <tr> <td>8</td> <td>view the lay out of the various bedrooms which were multi-occupied by three</td> </tr> <tr> <td>9</td> <td>generations of X’s family.</td> </tr> <tr> <td>10</td> </tr> <tr> <td>11</td> <td>12</td> </tr> <tr> <td>13</td> <td>44.</td> <td>Both the defendants gave evidence. In dealing with their evidence in brief terms, I</td> </tr> <tr> <td>14</td> <td>make clear that this is not because I regarded their evidence as less worthy of</td> </tr> <tr> <td>15</td> <td>detailed scrutiny. Rather it is a reflection of the fact that, in light of the nature of</td> </tr> <tr> <td>16</td> <td>the prosecution evidence, neither their own Counsel nor Mr Wainwright had</td> </tr> <tr> <td>17</td> <td>anything specific and relevant which could be put to them beyond the bare</td> </tr> <tr> <td>18</td> <td>allegations of forcible oral sex and attempted anal and/or vaginal penetration of X</td> </tr> <tr> <td>19</td> <td>on unspecified occasions over a period of months or years - all of which</td> </tr> <tr> <td>20</td> <td>allegations were vehemently denied on the basis they simply never occurred.</td> </tr> <tr> <td>21</td> </tr> <tr> <td>22</td> <td>23</td> <td>45.</td> <td>AB, who was 38 at the date of trial and 34 when X made the allegations of sexual</td> </tr> <tr> <td>24</td> <td>abuse against his employee house owner</td> </tr> <tr> <td>25</td> <td>it is alleged tured, the</td> </tr> <tr> <td>26</td> <td>observations of his sister (X’s rd X</td> </tr> <tr> <td>27</td> <td>28</td> </tr> </table> Verdict Judgment. R v. AB & CD. Ind. 88 and 86 of 2015 Coram: Owen J. (Actg.). Date: 15.09.2016 Page 28 of 45 ```
In cross examination, Mr. Wainwright sought to explore whether AB had a girlfriend in 2012 when the allegations of abuse were made and, after some delay for thought, AB gave the name of an American woman who he claimed was his girlfriend until September 2012. He was challenged about his working hours in the two jobs he claimed to have been doing at the time on the basis that he was dishonestly minimising the opportunities he had to abuse X in the house where they both lived. He was also challenged about an answer he had given in examination in chief to the effect that he had installed a lock on his bedroom door to "keep the kids out" when he wanted to sleep in the afternoon and it was suggested that he had changed his answer about whether the lock was installed before or after X's allegations were made because he realized that if he stuck with his answer "before" that would demonstrate that it was possible that he could have locked X into his bedroom in order to assault her sexually behind a locked door. Having been asked in chief whether he had ever forced X to suck his penis or tried to penetrate her vaginally and denied both allegations, CD responded to questions about how many people were living in the house where the abuse allegedly occurred in 2012 and before – explaining that at any one time there were always at least 5 people present and sometimes 25. He said that he and his family had moved out of the house in April 2010 but that he would return there regularly. He confirmed his account in interview in 2014 that X and her sister had wanted to be "because I'd I'm funny" and stuff like "Wen about 14 is girlfriend looked good that". CD and "I've been aid and X wouldbot blood re 21 could have se cannot be ed he because what he l bovfiene're. Use... We're family and that can't happen." When asked what their reaction to this was he said "they seemed to feel bad because I rejected them." Verdict Judgment, R v. AB & CD. Ind. 88 and 86 of 2015 Coram: Owen J. (Actg.). Date: 15.09.2016 Page 29 of 45
```html <table> <tr> <td>1</td> <td>47.</td> <td>Mr Dennis Brady asked CD a number of questions designed, it would seem, to suggest that CD had no real opportunity to assault X as she had alleged. When I intervened to suggest that in light of the nature of the allegations it was not realistic, given the vast, unspecific time span when the assaults were alleged, to suggest that CD had no opportunity to attack X, CD said the following:</td> </tr> <tr> <td>6</td> <td>7</td> <td>“I would be 100% honest. Living in that house if I wanted to rape X of course there would be occasions. Of course there would be...but the problem would be raping someone in that house would be getting away with it because there’s a lot of people in that house, that lives in that house”</td> </tr> <tr> <td>12</td> <td>48.</td> <td>When it was put to him that X had said that she saw EF sucking his penis as well, CD said:</td> </tr> <tr> <td>14</td> <td>15</td> <td>“I would say that’s impossible. That would never happen. I would never do that to my sister. I love my sister with all my heart.”</td> </tr> <tr> <td>17</td> <td>49.</td> <td>In response to the allegation that X had said that CD had forced her brothers to suck his penis, CD said that the allegation made him feel horrible and especially so because of all the times that he and his father had cooked food for X and her brothers so they wouldn’t go to sleep hungry “because their Dad is a piece of shit that rarely comes and brings them food”. He also described how X’s mother would use extreme violence against X, slamming her against walls and striking her hard. He said X was a girl who most of the time looked sad “and it’s because of her parents”.</td> </tr> </table> ```
```html <table> <tr> <td>1</td> <td>50.</td> <td>Before he began his cross examination of CD, Mr Wainwright applied to adduce</td> </tr> <tr> <td>2</td> <td>evidence of CD’s bad character on the basis that CD had accused X of making up</td> </tr> <tr> <td>3</td> <td>false allegations against him. After initial objection, Mr Brady abandoned his</td> </tr> <tr> <td>4</td> <td>stance and so the Court learned that in 2012 CD was convicted of two counts of</td> </tr> <tr> <td>5</td> <td>burglary and one charge of theft, to all of which he pleaded guilty. In the course of</td> </tr> <tr> <td>6</td> <td>cross-examination one particular issue stands out. In anticipation that EF was to be</td> </tr> <tr> <td>7</td> <td>called as a defence witness, Mr Wainwright asked CD if he had ever been in a</td> </tr> <tr> <td>8</td> <td>locked room on his own with X in the house where she lived. He said he was very</td> </tr> <tr> <td>9</td> <td>sure that that had never happened and maintained that denial when Mr Wainwright</td> </tr> <tr> <td>10</td> <td>put to him that his own sister, EF, had caught him in a locked room with X.</td> </tr> <tr> <td>11</td> <td>He further maintained his denials that he had ever subjected X to systematic sexual</td> </tr> <tr> <td>12</td> <td>abuse, replying that “I would rather rape my dog”. He also said that at the relevant</td> </tr> <tr> <td>13</td> <td>time he had several girlfriends and was sexually active, commenting “It’s all</td> </tr> <tr> <td>14</td> <td>because of the face...you don’t need lyrics if you have a face like this.”</td> </tr> <tr> <td>15</td> </tr> <tr> <td>16</td> <td>THE EVIDENCE OF EF</td> </tr> <tr> <td>17</td> </tr> <tr> <td>18</td> <td>51.</td> <td>CD’s sister, EF, was called as a defence witness. The clear purpose of her evidence</td> </tr> <tr> <td>19</td> <td>was to undermine the complainant’s evidence to the effect that she had, on one</td> </tr> <tr> <td>20</td> <td>occasion, seen EF performing oral sex on her own brother. EF is some 2 years</td> </tr> <tr> <td>21</td> <td>older than X and thus 17 when she appeared before me. EF recalled that there was</td> </tr> <tr> <td>22</td> <td>a time when she and CD all lived together in her grandmother’s house with X and</td> </tr> <tr> <td>23</td> <td>her family n said that she they would</td> </tr> <tr> <td>24</td> <td>ang out together that she om</td> </tr> <tr> <td>25</td> <td>that CD had made her (X) suck his penis but that she had not heard that herself</td> </tr> <tr> <td>26</td> <td>from X.</td> </tr> </table> ```
In examination in chief she said that she did not recall a time when she saw her brother and X go into a locked bedroom together in the house nor an occasion when she was with them in a room. She denied that CD had ever asked her to perform oral sex on him commenting that it was “weird” that someone would say such a thing and that “I would never suck my brother”. In cross examination it was put to EF that she had signed a witness statement in the presence of her mother on 16th September 2014 and that she understood that it was important that the statement contained the truth. She agreed. In that statement she had said that she had moved from her grandmother’s house about four years ago (i.e. in 2010) but that when they were living there X had come to her one day and said that “CD had been troubling her and telling her to suck his penis and things...I cannot remember if X told me that that she did it but I believed that CD had been asking her to do it. I can’t explain why I believe that CD was doing it but I did. X did not tell me that anyone else had troubled her.” The statement also included the following recollection: “I remember there was an occasion when I was at my grandmother’s home and CD and X were also there. I saw CD and X got into my aunt’s room locked the door. I went around the window of the bedroom where there is an AC unit to see if I could see into the room to find out what was going on but I couldn’t get the window open to see. I then went back into the house where I knocked on the bedroom that X and CD were in in. I tried to open the door but it was locked. I knocked again on the door and they still did not open the door. I had to knock the door on the third occasion before one of them opened the door. Both of them were fully clothed. X did not mention to me that anything had happened.” Verdict Judgment. R v. AB & CD. Ind. 88 and 86 of 2015 Coram: Owen J. (Actg.). Date: 15.09.2016 Page 32 of 45
The statement ended with the following: "No one from my family has ever touched me in a sexual way or asked me to do any sexual favours to them." EF explained that when she said that she believed that CD had been asking X to suck his penis this was because "I didn't want to think she is lying". Nothing else, she said, made her believe that what X had said was true. As for X's allegation that she, EF, had herself performed oral sex on her brother when X was present, EF said that was not true. THE EVIDENCE OF JJ JJ is the younger brother of X and was 13 when he gave evidence. He recalled being interviewed by the police in November 2012 and he confirmed that he had sex education lessons at school and understood that "men not supposed to be with men and women with women". He said that his relationship with CD was good and that he and his baby brother played a lot together with CD and had fun. He said he couldn't remember if CD ever touched him in a way he didn't like, but, that if anyone had ever asked him to suck their penis "I'd defend myself. I'd fight him." If CD had ever asked him to suck his penis "I think I'd remember that." Verdict Judgment. R v. AB & CD. Ind. 88 and 86 of 2015 Coram: Owen J. (Actg.). Date: 15.09.2016 Page 33 of 45
CLOSING SUBMISSIONS

¶ [56] Written submissions were lodged by all parties at the conclusion of the evidence. Unsurprisingly in light of the extraordinary history of the proceedings and the absence of any supporting evidence for X’s allegations, closing submissions focused on the strength of the evidence, the impact of the delay and incompetent investigation on the fairness of the trial process and the basic credibility of the various witnesses’ accounts.

¶ [57] Mr. Wainwright conceded on behalf of the Crown that “there had been unacceptable delays in the investigation of these alleged offences however notwithstanding such delays, the Court can be sure of the truthfulness of the account given by the complainant.” He submitted that the complainant had been essentially consistent in the accounts she gave to the police and that what she told recent complaint witnesses was supporting evidence capable of bolstering her credibility. He relied on specific details in X’s ABE interviews as adding weight to her account and suggested that “this level of detail could not be made up”. As for the defendants, he submitted that “the Court cannot place any reliance upon the evidence of either defendant” and suggested that they had each attempted to limit, artificially, windows of opportunity to assault X as she had alleged. He relied on what he said were lies/evasions by both defendants which were hallmarks of dishonesty and which would require me to direct myself as to the impact of any lies told in accordance with the Lucas principles. He rejected the idea that the delay had caused any unfairness to the defence whereas he accepted that X had sufficient age as a fifteen year old being asked to recall events when she was eleven and a half years old. Verdict Judgment: R v. AB & CD. Ind. 88 and 86 of 2015 Coram: Owen J. (Actg.). Date: 15.09.2016 Page 34 of 45
The ABE interviews, he said, meant that there was no loss of quality in terms of her evidence as of 2012 although he agreed in oral argument that there was a demonstrable loss of quality in X’s evidence before me in comparison with her 2012 ABE interviews. Mr. Wainwright accepted that two adult witnesses – X’s other Uncle who also lived in the house throughout the time that the abuse was allegedly occurring and indeed shared a room with AB together with X’s grandmother who lived in the house at all times and indeed was there all day as she was bedridden – should have been asked to provide witness statements. But he denied that this failure meant that an acquittal was justified. He also referred me to the English Court of Appeal ruling in *R v. JVG*² in which approval was given to a direction given by a trial Judge in a sexual abuse case to the effect that when a child is as young as 6 she may well not be able to see clearly or understand that sexual activity is wrong or inappropriate, especially with an adult, but that when the child is 12 or 13 and having learned more about the world, feelings that things are wrong may well come to dominate and allegations may explode forth where there was previously silence and no suspicion of them.

¶ [58] The defendants’ closing submissions focused on weaknesses in X’s evidence – arguing that she was less than confident in some answers, forgetful and confused, caused, no doubt, in part, by the passage of time. She was, it was argued, unsure about crucial aspects of her evidence and examples were given of specific instances where her evidence was inconsistent. Strong criticisms were made of the conduct of the investigation and, in particular, of the fact that the interview with X had been lost. The notes of his interview with X had been lost. The was unexplained to the court. --- ² [2015] EWCA Crim 1630 Verdict Judgment. R v. AB & CD. Ind. 88 and 86 of 2015 Coram: Owen J. (Actg.). Date: 15.09.2016 Page 35 of 45
In short it was submitted that the case for the Crown is “littered with uncertainty” so that the Court cannot feel sure of guilt. There is no reliable way, it was argued, that the Court could be sure whether any witness – including the defendants – was lying or just have poor recall. Counsel for CD also sought to persuade me that the evidence of any medical evidence showing that X had sustained physical trauma from the assaults was a significant factor in assessing the strength of the case (although I made clear that I regarded this as a weak point in circumstances where X’s evidence did not tend to suggest that any significant trauma would have been caused to her). Reliance was placed on the observations of Lord Woolf CJ in *R v. B*³ (an authority I had myself drawn to the attention of all Counsel) in which a conviction for sexual abuse alleged to have occurred some 30 years previously, was quashed, notwithstanding the Court of Appeal’s finding that the trial process itself could not be faulted. --- **GRAND COURT - ISLANDS** --- ³ [2003] 2 Cr App R 13 --- **Verdict Judgment. R v. AB & CD. Ind. 88 and 86 of 2015 Coram: Owen J. (Actg.). Date: 15.09.2016** Page 36 of 45
```markdown # MY CONCLUSIONS

¶ [59] At the conclusion of the evidence, I was faced with a situation in which the sole evidence capable of proving the Crown’s case came from X in circumstances where she had first made allegations of grave sexual abuse against two close family members when she was 11 years of age in November 2012. Taking her evidence both in her 2012 ABE interviews and before the court in July 2016 into account, she has alleged that this abuse took place regularly over a period of at least 18 months and possibly as long as five years from when she was 6 years of age in a relatively small 5 bedroom house, multi-occupied by three generations of the same family who lived cheek by jowl. She was unable to be precise as to when the assaults had taken place and, accordingly, the specimen charges were framed by reference to an 18-month period between August 2011 and November 2012. She explained that in addition to physical violence at the hands of her mother, her mother and father (despite being separated) would often have sex in her presence while she was in the same bed as them and while her younger brothers were also in the bedroom. None of the adult occupants of the house during that period – X’s mother, her grandmother or the uncle who shared a bedroom with AB and against whom no allegation of abuse has ever been made – gave evidence for the prosecution either because they were never asked to provide witness statements or, in the case of X’s mother, because she herself was suspected of assaulting her daughter and had been interviewed under caution in 2012. Nor was any prompt effort made to take a witness statement from X’s older sister AA, despite the obvious potential of her testimony. ```
```html <table> <tr> <td>1</td> <td>60.</td> <td>Having recorded X's serious allegations of abuse in George Town police station in</td> </tr> <tr> <td>2</td> <td>November 2012, it is clear that no investigative action whatsoever was taken by the</td> </tr> <tr> <td>3</td> <td>Cayman Islands police force until, for no reason disclosed to the court, a decision</td> </tr> <tr> <td>4</td> <td>was taken to interview AB in a frankly desultory manner in April 2014. CD was</td> </tr> <tr> <td>5</td> <td>then interviewed for a mere 17 minutes under caution in July 2014. Even then,</td> </tr> <tr> <td>6</td> <td>obviously relevant witnesses were never approached to see if they were able to</td> </tr> <tr> <td>7</td> <td>assist the enquiry. Detective Sergeant Howell's explanation that the investigation</td> </tr> <tr> <td>8</td> <td>of this case "inadvertently stalled" for some 18 months is one that I find impossible</td> </tr> <tr> <td>9</td> <td>to understand albeit that I do accept that the decision on how to progress the</td> </tr> <tr> <td>10</td> <td>investigation was not one for Detective Howell but for his superiors. Neither</td> </tr> <tr> <td>11</td> <td>defendant sought to pursue an abuse-of-process submission on the basis of the</td> </tr> <tr> <td>12</td> <td>unexplained and inexcusable delay, and, the loss of Detective Howell's notes of</td> </tr> <tr> <td>13</td> <td>X's first detailed account to a police officer. Accordingly, no senior officer was</td> </tr> <tr> <td>14</td> <td>called before me to give evidence on the question of how it was that very grave</td> </tr> <tr> <td>15</td> <td>allegations of sexual abuse by two adults on a young child came to be</td> </tr> <tr> <td>16</td> <td>"inadvertently stalled" from November 2012 until April 2014 and then</td> </tr> <tr> <td>17</td> <td>investigated in a manner that failed to approach obviously relevant witnesses.</td> </tr> <tr> <td>18</td> <td>19</td> <td>61.</td> <td>As I stated at the outset of this judgment, criminal courts are well used to trying</td> </tr> <tr> <td>20</td> <td>cases of what have become known as allegations of historic sexual abuse, meaning</td> </tr> <tr> <td>21</td> <td>allegations which are made many years, and sometimes decades, after the abuse</td> </tr> <tr> <td>22</td> <td>allegedly took place. And I have borne well in mind that any tribunal of fact-</td> </tr> <tr> <td>23</td> <td>jury or judgment be alert to vs that people</td> </tr> <tr> <td>24</td> <td>react differently while others feel shame and shock and do not complain for some time</td> </tr> <tr> <td>25</td> <td>immediately to the traumatic sexual assault. Some people complain for some</td> </tr> <tr> <td>26</td> <td>- maybe years or decades.</td> </tr> <tr> <td>27</td> </tr> </table> Verdict Judgment. Rv. AB & CD. Ind. 88 and 86 of 2015 Coram: Owen J. (Actg.). Date: 15.09.2016 Page 38 of 45 ```
```html <table> <tr> <td>1</td> <td>Accordingly, the mere fact that a complaint of this nature is late, does not mean</td> </tr> <tr> <td>2</td> <td>that it is false. I also fully acknowledge that particular feelings of confusion,</td> </tr> <tr> <td>3</td> <td>shame, anxiety and embarrassment may arise where the abuse is being inflicted not</td> </tr> <tr> <td>4</td> <td>by a stranger but by a close family member (see the guidance in Rv.Miller*). I am</td> </tr> <tr> <td>5</td> <td>particularly conscious of the guidance in the judgment in Rv.JVG which I have</td> </tr> <tr> <td>6</td> <td>cited above.</td> </tr> <tr> <td>7</td> <td>62.</td> <td>The effect that any lapse of time has on the fairness of the trial process will always</td> </tr> <tr> <td>8</td> <td>depend on the facts of each case. The length of delay in any given case is nothing</td> </tr> <tr> <td>9</td> <td>more than a statement of fact. What matters is not how long it is since the alleged</td> </tr> <tr> <td>10</td> <td>offence but whether the delay has an effect on the fairness of the trial and the</td> </tr> <tr> <td>11</td> <td>ability of a court ultimately to be sure of guilt</td> </tr> <tr> <td>12</td> <td>. Delay can place a defendant at a</td> </tr> <tr> <td>13</td> <td>material disadvantage in challenging allegations arising out of events that occurred</td> </tr> <tr> <td>14</td> <td>many years before and this is especially so where the defence is, as in this case, a</td> </tr> <tr> <td>15</td> <td>simple denial of acting in the manner alleged. In this case, I accept that such delay</td> </tr> <tr> <td>16</td> <td>as has occurred between the making of the allegations by X in 2012 and the trial</td> </tr> <tr> <td>17</td> <td>before me cannot be said to have caused particular prejudice to either defendant in</td> </tr> <tr> <td>18</td> <td>terms of their own ability simply to deny X’s allegations. Whether an adult male</td> </tr> <tr> <td>19</td> <td>has sexually abused his young female niece or cousin is not a matter which is liable</td> </tr> <tr> <td>20</td> <td>to be forgotten as time passes and in the end, whenever the allegation was put, the</td> </tr> <tr> <td>21</td> <td>defendants were going to utter simple denials that they had acted as alleged by X.</td> </tr> <tr> <td>22</td> <td>Absent any detail from the complainant as to when precisely the assaults occurred</td> </tr> <tr> <td>23</td> <td>he beyond unspecified times and dates over an 18 month period - no defendant</td> </tr> <tr> <td>24</td> <td>could advance alibi nor</td> </tr> <tr> <td>25</td> <td>time or day.</td> </tr> </table> <sup>4</sup>[2010] EWCA Crim 1578 <sup>5</sup>See the guidance in Rv.PS[2013] EWCA Crim 992. <sup>Verdict Judgment. Rv.AB&CD. Ind.88and86of2015Coram:OwenJ.(Actg.).Date:15.09.2016</sup> <sup>Page 39 of 45</sup> ```
```html <table> <tr> <td>1</td> <td>63.</td> <td>There is however one obvious prejudice to the defendants flowing from the delay</td> </tr> <tr> <td>2</td> <td>in this case and that is the loss of Detective Howell's notes of his interview with X</td> </tr> <tr> <td>3</td> <td>at George Town police station on the afternoon of 17th November 2012. While Mr</td> </tr> <tr> <td>4</td> <td>Howell claimed to recall in broad outline the allegations that X made in terms</td> </tr> <tr> <td>5</td> <td>which accorded with her eventual ABE interviews two days later, the fact remains</td> </tr> <tr> <td>6</td> <td>that, without access to the notes it was impossible for defence Counsel to examine</td> </tr> <tr> <td>7</td> <td>the extent to which X's account was consistent in potentially important respects in</td> </tr> <tr> <td>8</td> <td>terms of who was alleged to have done what to her and over what period of time</td> </tr> <tr> <td>9</td> <td>and in what circumstances. It is of course pure speculation whether access to the</td> </tr> <tr> <td>10</td> <td>notes would in fact have assisted the defence in their efforts to undermine X's</td> </tr> <tr> <td>11</td> <td>credibility. But just as the loss of a first description given by an identification</td> </tr> <tr> <td>12</td> <td>witness to a crime would always be regarded as creating unfairness to an accused</td> </tr> <tr> <td>13</td> <td>person (and undermine the reliability of the identification evidence as a whole) so</td> </tr> <tr> <td>14</td> <td>too is the loss of what were clearly reasonably detailed notes of what a person</td> </tr> <tr> <td>15</td> <td>alleging sexual abuse first said to an investigating police officer during an</td> </tr> <tr> <td>16</td> <td>interview lasting an hour or more.</td> </tr> <tr> <td>17</td> <td>18</td> <td>64.</td> <td>When considering the central question of whether the prosecution has proved the</td> </tr> <tr> <td>19</td> <td>defendants' guilt, I have borne in mind the prejudice caused to them by the loss of</td> </tr> <tr> <td>20</td> <td>Detective Howell's notes as well as the generally incompetent quality of the</td> </tr> <tr> <td>21</td> <td>investigation into these grave allegations; which means that the case turns purely</td> </tr> <tr> <td>22</td> <td>and simply on X's unsupported evidence. Bearing in mind that X was alleging that</td> </tr> <tr> <td>23</td> <td>she had been used by not over a period</td> </tr> <tr> <td>24</td> <td>potentially as time the absence of any evidence from other a aunt occupants of the</td> </tr> <tr> <td>25</td> <td>people at a time, the absence of any evidence from other a aunt occupants of the</td> </tr> <tr> <td>26</td> <td>house meant that X cut a lonely figure in the course of the trial process.</td> </tr> <tr> <td>27</td> </tr> </table> Verdict Judgment. R v. AB & CD. Ind. 88 and 86 of 2015 Coram: Owen J. (Actg.). Date: 15.09.2016 Page 40 of 45 ```
That reality did not itself mean that X’s evidence was unreliable but it plainly meant that the strength of the prosecution case depended on her and her alone. I also find that the delay that has occurred, combined with the poor quality of the police investigation has potentially harmed X and has done her an injustice. While I accept that her account of sexual abuse at the hands of the defendants has been broadly consistent – both in the ABE interviews and before me in evidence as well as in the form of her accounts to the recent complaint witnesses - I was also struck by the contrast between her evidence in the ABE interviews and her evidence before me. In oral argument at the close of the evidence, I expressed the view that it seemed to me that X’s evidence on video in 2012 was better in quality than before me and commented that there may be a number of reasons for this (nervousness, public nature of the proceedings and so on) but that I was faced with the difficulty that, for whatever reason, the quality of her evidence had clearly diminished and there were contradictions in her accounts. I refer in particular to the matters that emerged when Mr Wainwright asked questions in chief after the ABE interviews and which I have summarised in paragraphs 27-28 above. Mr Wainwright’s response was to observe that there is a world of difference between a girl, just approaching her 15th birthday at the trial stage, who is thinking back to events when she was ten or eleven, as compared with a defendant such as B aged 38 thinking back to common sense, events that AB testified to in court about is a 14 year old now. Verdict Judgment, R v. AB & CD, Ind. 88 and 86 of 2015 Coram: Owen J. (Actg.), Date: 15.09.2016 Page 41 of 45
```html <table> <tr> <td>1</td> <td>An adult recalling events when he was already well into adulthood causes him less</td> </tr> <tr> <td>2</td> <td>difficulty than it would with a 14 year old girl being asked to recollect events when</td> </tr> <tr> <td>3</td> <td>she was eleven or possibly as young as 6.</td> </tr> <tr> <td>4</td> <td></td> </tr> <tr> <td>5</td> <td>67.</td> <td>I do not consider that Mr Wainwright's response properly meets the point I was</td> </tr> <tr> <td>6</td> <td>seeking to make in circumstances where the burden of proof is on the Crown to</td> </tr> <tr> <td>7</td> <td>make me sure of guilt and where the case depends solely on the evidence of a</td> </tr> <tr> <td>8</td> <td>single complainant the quality of whose evidence has, in my view, plainly been</td> </tr> <tr> <td>9</td> <td>affected by the passage of time and for reasons which the court simply cannot</td> </tr> <tr> <td>10</td> <td>assess with any degree of reliability.</td> </tr> <tr> <td>11</td> <td>12</td> <td>68.</td> <td>I also must take into account the evidence of EF and JJ who were called as defence</td> </tr> <tr> <td>13</td> <td>witnesses and whose evidence plainly did undermine X in important respects</td> </tr> <tr> <td>14</td> <td>insofar as they denied that they had suffered any form of sexual abuse at the hands</td> </tr> <tr> <td>15</td> <td>of CD. Mr Wainwright's approach to EF's evidence was to rely heavily on the fact</td> </tr> <tr> <td>16</td> <td>that she gave a compelling account (which I accept as true) of an occasion when</td> </tr> <tr> <td>17</td> <td>she found X and her brother in a locked bedroom (albeit that she observed no</td> </tr> <tr> <td>18</td> <td>sexual contact between them) on the basis that this demonstrated CD to have lied</td> </tr> <tr> <td>19</td> <td>on a highly significant matter. But the fact remains that EF was clear both in her</td> </tr> <tr> <td>20</td> <td>original witness statement and in her evidence before me that at no time had her</td> </tr> <tr> <td>21</td> <td>brother ever forced her to perform oral sex on him notwithstanding X's evidence</td> </tr> <tr> <td>22</td> <td>that she had observed this happening. Unless I were to adopt reasoning to the effect</td> </tr> <tr> <td>23</td> <td>that EF would be bound to deny ever being sexually abused by her brother, it would</td> </tr> <tr> <td>24</td> <td>be obvious that a finding of sexual abuse by CD would be a finding of sexual abuse</td> </tr> <tr> <td>25</td> <td>by CD of EF. The whole does not for me touch the impact of circumstances which</td> </tr> <tr> <td>26</td> <td>sole evidence for the prosecution comes from X.</td> </tr> <tr> <td>27</td> <td></td> </tr> </table> ```
```html <table> <tr> <td>1</td> <td>69.</td> <td>As for my assessment of the defendants and the evidence they gave, there was a</td> </tr> <tr> <td>2</td> <td>stark difference between them. I find that AB was a man of low intelligence and</td> </tr> <tr> <td>3</td> <td>agree with Mr Wainwright that his account of his movements and working hours at</td> </tr> <tr> <td>4</td> <td>the time seemed to be artificially designed to restrict the opportunity he may have</td> </tr> <tr> <td>5</td> <td>had to assault X. I was unable however to be sure that his reason for seeking to</td> </tr> <tr> <td>6</td> <td>minimise his opportunity to assault X was because he was guilty as opposed to a</td> </tr> <tr> <td>7</td> <td>concern that any admission of an opportunity to assault X would be regarded as</td> </tr> <tr> <td>8</td> <td>proof of guilt. As I pointed out in the course of oral argument, bearing in mind the</td> </tr> <tr> <td>9</td> <td>unspecified nature of the charges and the long period during which the offences</td> </tr> <tr> <td>10</td> <td>were alleged to have taken place, it was plainly absurd to suggest that neither</td> </tr> <tr> <td>11</td> <td>defendant had any opportunity to commit sexual assaults on X if they were so</td> </tr> <tr> <td>12</td> <td>inclined. In the circumstances, I did not attach significant weight to AB’s answers</td> </tr> <tr> <td>13</td> <td>on this aspect of the case.</td> </tr> <tr> <td>14</td> </tr> <tr> <td>15</td> <td>70.</td> <td>CD struck me as an intelligent and arrogant young man who responded</td> </tr> <tr> <td>16</td> <td>aggressively to Mr Wainwright’s forceful cross examination to the effect that he</td> </tr> <tr> <td>17</td> <td>was lying in his denials of persistent sexual assault on his young cousin. But as I</td> </tr> <tr> <td>18</td> <td>pointed out to Mr Wainwright at the time, this aggressive response in itself told me</td> </tr> <tr> <td>19</td> <td>little-bearing in mind the fact that being accused of a grave sexual assault when</td> </tr> <tr> <td>20</td> <td>one is innocent might be expected to produce an aggressive response. Accordingly</td> </tr> <tr> <td>21</td> <td>his demeanour in itself was of little assistance to my overall assessment of the</td> </tr> <tr> <td>22</td> <td>strength of the prosecution case. I find that CD did lie to me about whether the</td> </tr> <tr> <td>23</td> <td>“om” incident and X</td> </tr> <tr> <td>24</td> <td>beim and XI b</td> </tr> <tr> <td>25</td> <td>imately I was as</td> </tr> <tr> <td>26</td> <td>CD’s guilt, not least because EF herself observed no sexual contact between her</td> </tr> <tr> <td>27</td> <td>brother and X on this occasion.</td> </tr> </table> ```
```html <table> <tr> <td>1</td> <td>As for CD’s bad character, I was equally unable to be sure that the fact that CD has</td> </tr> <tr> <td>2</td> <td>a record for burglary and theft was in itself sufficiently relevant to my overall</td> </tr> <tr> <td>3</td> <td>assessment of the strength of the prosecution case as to tip the scales in favour of a</td> </tr> <tr> <td>4</td> <td>finding of guilt against CD. Ultimately my decision on the proper verdicts in this</td> </tr> <tr> <td>5</td> <td>case turned on my assessment of inherent weaknesses in the prosecution’s evidence</td> </tr> <tr> <td>6</td> <td>rather than the credibility of the defendants.</td> </tr> <tr> <td>7</td> <td></td> </tr> <tr> <td>8</td> <td>71.</td> <td>In concluding that the verdict on all five counts must be one of Not Guilty, I wish</td> </tr> <tr> <td>9</td> <td>to make it absolutely clear that I do so not because I find as a fact that X has lied</td> </tr> <tr> <td>10</td> <td>either in her ABE interviews or in her evidence before me and I reject the</td> </tr> <tr> <td>11</td> <td>suggested motives advanced by the defence as to why X invented all the</td> </tr> <tr> <td>12</td> <td>allegations against them. Ultimately however, and for the reasons I have</td> </tr> <tr> <td>13</td> <td>endeavoured to explain above, I have concluded that the prosecution evidence as a</td> </tr> <tr> <td>14</td> <td>whole is simply not capable of satisfying me so that I can be sure of guilt. It is not</td> </tr> <tr> <td>15</td> <td>enough in my view to approach X’s evidence simply by asking “well why would</td> </tr> <tr> <td>16</td> <td>she have made the allegations unless they were true?”</td> </tr> <tr> <td>17</td> <td></td> </tr> <tr> <td>18</td> <td>72.</td> <td>The exercise of being sure of guilt in a case such as this, where a single witness’s</td> </tr> <tr> <td>19</td> <td>unsupported evidence is posed against the adamant denials of two defendants and</td> </tr> <tr> <td>20</td> <td>is undermined by the evidence of two defence witnesses, calls for a more careful</td> </tr> <tr> <td>21</td> <td>assessment of the evidence taken as a whole and affected, as it is, by the features of</td> </tr> <tr> <td>22</td> <td>delay and incompetent investigation which have hallmarked this case. In reaching</td> </tr> <tr> <td>23</td> <td>this conclusion heavily</td> <td>24</td> <td>R v. B when of Appea c</td> <td>er vations If C</td> <td>for</td> <td>on I have borr</td> <td>1 q mind the of l</td> <td>a step fat</td> </tr> <tr> <td>24</td> <td>R v. B when of Appea</td> <td>in</td> <td>ashed th of Lord Woo</td> <td>in</td> <td>the Court obs</td> <td>onviction ther J in</td> </tr> <tr> <td>25</td> <td>sexually abusing his step daughter some 30 years before his trial notwithstanding</td> </tr> <tr> <td>26</td> <td>the Court’s view that nothing had gone wrong with the trial process:</td> </tr> </table> ``` ```latex \begin{equation} \text{Verdict Judgment. R v. AB & CD. Ind. 88 and 86 of 2015 Coram: Owen J. (Actg.). Date: 15.09.2016} \end{equation} \text{Page 44 of 45} ```
```html <table> <tr> <td>1</td> <td>2</td> <td>3</td> <td>4</td> <td>5</td> <td>6</td> <td>7</td> <td>8</td> <td>9</td> <td>10</td> <td>11</td> <td>12</td> <td>13</td> <td>14</td> <td>15</td> <td>16</td> <td>17</td> <td>18</td> </tr> <tr> <td>However there remains in this Court a residual discretion to set aside a</td> <td>conviction if we feel it is unsafe or unfair to allow it to stand. This is so even</td> </tr> <tr> <td>where the trial process itself cannot be faulted. It is a discretion which must be</td> </tr> <tr> <td>exercised in limited circumstances and with caution. When we exercise that</td> </tr> <tr> <td>discretion we must be conscious that we are not only involved in deciding</td> </tr> <tr> <td>where justice lies for the appellant. We must do justice to the prosecution</td> </tr> <tr> <td>whose task it is to see that the guilty are brought to justice. We must also do</td> </tr> <tr> <td>justice to the victim. If she is right, she was treated in a most disgraceful way</td> </tr> <tr> <td>by someone whom she should have been entitled to trust：her stepfather. For</td> </tr> <tr> <td>years, for understandable reasons, as we have already indicated, she felt</td> </tr> <tr> <td>unable to make public what happened. She is entitled to justice as well. But</td> </tr> <tr> <td>we also have to do justice to the appellant. At the heart of our criminal justice</td> </tr> <tr> <td>system is the principle that while it is important that justice is done to the</td> </tr> <tr> <td>prosecution and justice is done to the victim, in the final analysis the fact</td> </tr> <tr> <td>remains that it is even more important that an injustice is not done to the</td> </tr> <tr> <td>defendant. It is central to the way we administer justice in this country that</td> </tr> <tr> <td>although it may mean that some guilty people go unpunished, it is more</td> </tr> <tr> <td>important that the innocent are not wrongly convicted."</td> </tr> <tr> <td>19</td> </tr> <tr> <td>73.</td> <td>What Lord Woolf had to say was of course an explanation of the role of an</td> </tr> <tr> <td>appellate court in exercising the "lurking doubt" discretion when deciding whether</td> </tr> <tr> <td>a conviction is safe. But it seems to me that his approach is equally relevant to a</td> </tr> <tr> <td>first instance Judge sitting as the tribunal of fact in a case such as this one. This</td> </tr> <tr> <td>has been a very troubling case to try, not least because of the still unexplained</td> </tr> <tr> <td>conduct of the police investigation after X first made her allegations of abuse in</td> </tr> <tr> <td>November 2012. In the end, I have concluded that on each count alleged against</td> </tr> <tr> <td>AB and CD, the only proper verdict I can return is one of Not Guilty.</td> </tr> <tr> <td>28</td> </tr> <tr> <td>29</td> <td>Dated this the 15th day of September 2016</td> </tr> <tr> <td>30</td> </tr> <tr> <td>31</td> <td>Honourable Mr. Justice Timothy Owen Q.C. (Actg.)</td> </tr> <tr> <td>32</td> <td>Acting Judge of the Grand Court</td> </tr> </table>