Q. Did you go out as well then did you?
A. Yeah." (Tr 82-83)
28 The appellant submitted that the version in the first ERISP and in the complainant's evidence at trial, that is, that the complainant fellated the appellant for the first time on the same occasion that he first made sexual contact by touching her breasts, was different from the version recorded in Senior Constable Boulton's statement, where the reference to the first occasion of fellatio was to "another time" after the touching of her breasts. The appellant submitted that it would be expected that a person who had not had prior sexual experience would have a clear recollection, at least of the first time she performed fellatio. He submitted that the different account she gave to Senior Constable Boulton from that recorded in the first ERISP and the account she gave at trial was notable.
29 The appellant also said there was a discrepancy in the various versions as to where the first occasion of fellatio had occurred. According to the statement made by Senior Constable Boulton, the first occasion occurred outside the house, whereas in the first ERISP, the complainant said the incident had occurred inside. It was submitted that these differences were significant and reflected adversely on the complainant's credibility.
30 The Crown submitted that too much emphasis could not be placed on any discrepancies between Senior Constable Boulton's statement and the ERISPs or evidence, as the statement did not purport to be a direct quote of what the complainant told Senior Constable Boulton. The Crown also relied upon the fact that Senior Constable Boulton recorded that the statement had not been taken in detail, because it was only an initial report made for the purposes of forwarding the complaint to the Joint Investigation Response Team. Senior Constable Boulton had also noted that the complainant was obviously embarrassed and shy about revealing details (Appeal book 86).
31 The Crown also submitted that the phrase in Senior Constable Boulton's statement, "another time after this incident" was possibly ambiguous, in that it could have been a reference to another type of conduct that commenced after the first conduct had ended. The Crown reminded the Court that the appellant had obviously made a decision not to call Senior Constable Boulton, to either clarify any ambiguity in those words or, alternatively, to seek to underscore the literal correctness of para 8 of Senior Constable Boulton's statement as meaning 'on a separate and later occasion'. The appellant, for his part, contended that it was for the Crown to have called Senior Constable Boulton if it wanted to clarify any ambiguity in the statement and that it was not for him to require her attendance. The appellant's counsel frankly conceded, however, that the appellant may not have wanted to cross-examine Senior Constable Boulton.
32 Likewise, the reference to "outside" in Senior Constable Boulton's statement might also be ambiguous. On a first reading, it is likely to mean outside the house. But it could have meant 'outside the bedroom'. For example, the information could have been given in response to a question such as, "did this also occur in the bedroom?", in which case there would be no discrepancy, or, at least, any discrepancy would be in the lack of detail, rather than in making two completely different statements. In the absence of evidence from Senior Counsel Boulton definitively stating that the complainant identified a place outside the house, and the complainant having little recollection of what she said, any discrepancy could properly have been treated by the jury as of little relevance to her credibility.
33 Further, there were matters in respect of which there was substantial correspondence between the two versions. In each version, the complainant said the appellant grabbed her hand and put it on his penis; that she commenced fellating the appellant, but stopped because she did not like it; that the appellant asked her to keep going, or "just finish it"; that the appellant gave the complainant a cigarette. There was a difference between the accounts, however, in that Senior Constable Boulton recorded that the appellant offered the complainant a cigarette, whereas in her first ERISP, the complainant said that she asked him for a cigarette); and that the complainant said that after the incident, the appellant went "back down his end" of the house.
34 The Crown finally submitted that the difference between the two versions was the subject of cross-examination and it was, therefore, a matter for the jury to assess.
35 It is possible that there were differences in the accounts given by the complainant as to when the first occasion of fellatio occurred. The appellant was entitled to, and did, highlight those matters to the jury as reflecting on the credibility of the complainant generally and in support of his case that the complainant was fabricating either this particular allegation, or all the allegations she made against the accused. However, it was a matter for the jury whether they accepted the complainant's evidence in respect of the essential elements of this offence. That, in turn, depended upon their assessment of her account, not only in respect of this count, but in respect of each of the charges and of her credibility generally.
36 There were various factors that were relevant to each aspect of that assessment, including her age, the circumstances in which Senior Constable Boulton's interview was conducted, and the fact that the complainant was highly embarrassed and reluctant to reveal details. That may have affected how directed Senior Constable Boulton's questions were, how focussed the complainant was in respect of details, or how clearly she was able to articulate all the circumstances of the offence at that stage. It was the jury's function to determine whether they accepted the complainant's evidence, either in whole or in part. Their overriding function was to determine, in respect of each charge, whether they were satisfied beyond reasonable doubt that the Crown had established all the elements of each offence.