R. v. K.D.
(1) Sexual Assault (4x);
(2) Sexual Interference (4x);
(3) Invitation to Sexual Touching (3x);
(4) Threatening Death for the Purpose of Obtaining Sexual Services
The client, K.D., was charged with 12 different sexual offences alleged to have been committed with respect to the daughter of a family friend who was between the ages of 7 and 14 at the time that the sexual offences were alleged to have been committed. The Crown alleged that the client had repeatedly sexually abused the complainant by asking her to kiss him on the lips, luring her to his car where he had her touch his penis, touching her breasts and vagina while the complainant was in his home, and asking her to have sexual intercourse with him.
The trial took place over a period of 5 days in the Superior Court of Justice before a Judge sitting without a jury.
The client’s defence was that the allegations did not occur and that they were concocted by the complainant as a result of her finding out that the client was involved in an affair with her mother over a period of several years. The complainant’s mother denied this affair. The Crown refused to call the complainant’s mother as a witness. Accordingly, the defence was required to call the complainant’s mother as a witness. This posed various difficulties since the cross-examination of one’s own witness is not allowed. The only manner of getting around this rule of evidence is to apply to the trial Judge for an Order finding the witness to be adverse or by applying to the trial Judge to at least permit the defence to cross-examine the witness on specific issues such as previous inconsistent statements.
The Crown alleged that the incident during which the client had the complainant touch his penis occurred in the parking lot of a large store after the client ran into the complainant and the complainant’s mother in the store. The complainant was 8 or 9 years of age when this incident was alleged to have occurred.
The evidence of the complainant and the evidence of the complainant’s mother with respect to the incident in the parking lot of the large store was inconsistent with respect to a major point, in particular, whether the complainant made her mother aware that she was leaving the store with the client. The complainant’s mother also contradicted the complainant with respect to whether the client was in the store at all. The various difficulties with the evidence of the complainant and the complainant’s mother with respect to this incident left the trial Judge with a reasonable doubt regarding whether the incident ever occurred. The trial Judge rejected the complainant’s account of this incident. The trial Judge concluded that the complainant’s evidence with respect to what happened “just did not make sense”. This caused the trial Judge to also have concerns regarding the rest of the complainant’s evidence.
The Crown’s case against the client regarding the client’s opportunity to sexually abuse the complainant in his home also caused the trial Judge serious concern. The trial Judge concluded that there were aspects of the complainant’s evidence that were not credible when viewed in light of the rest of the evidence which included the evidence of the complainant’s mother regarding what opportunity the client might of have had to abuse the complainant.
The trial Judge found the client not guilty of all of the charges that he was facing.
The success in this case was the result of thorough preparation and the effective cross-examination of a young complainant and her reluctant mother.