R v B I C [2009] VSCA 155

R v B I C [2009] VSCA 155 - VSCA 2009 case summary — Zoe

[15]

That she [was] seven years old, her birthday being 23 April 1999.

A lie is something that [was] not true.

That she was only going to tell the truth.

That her dad touched her rude part with a flannel and put his rude part on her rude part and that it felt a bit yucky.

That he said that his rude part [was] called a penis. He told her to make her legs go apart and he was touching the middle of her rude part. He used the flannel to wash her rude part. He was doing it hard. That's all he did to her.

It happened at their house at Reservoir. She had known her dad ... since June 2005. That he [was] actually her stepdad.

That he touched her rude spot when they were in the sitting room. She was sitting on a black couch. Her brother, aged 7 months, was also at home. Her mum had gone to get her baby brother some 'Huggies' (nappies). It was a Sunday afternoon.

Her brother was on the carpet in the sitting room. Her stepdad was watching TV and then started to touch her rude part. She was wearing a t-shirt and pants.

The news ended and he got the flannel from the bathroom. She pointed to her groin area as being her 'rude part'.

He took her pants off and put them on the table. He touched her rude part with the flannel. He wiped on her rude part for about a minute and a half. It was a bit hard.

He stopped because she was moving backwards. She wanted to get away but he was holding her legs really hard. He held them spread apart. Then he put her pants back on and watched some rugby. He told her not to tell her Mum, but she did anyway.

While he was touching her, her baby brother was crying but he didn't care. She thought he wiped her rude spot with a flannel on one occasion. The other name for her rude spot is her vagina.

The second time he touched her, her dad put his rude part on her rude part.

It was on the same day. They were in the sitting room. It was straight after he touched her with the flannel.

His rude part was called a penis and it looked disgusting. She saw him zipping down his shorts and she closed her eyes. She was lying down on the couch. His penis was hanging down. He was wearing an orange coloured shirt and a blue and black jumper.

He put his penis on top of her rude part, in between her legs. He told her it was called a penis. He kneeled in front of her. It touched her skin. She tried to move away but he was holding her legs really hard.

He put his penis on her rude part once.

[17]

That she was 8 years of age.

That she understood that it was important to tell the truth and what really happened.

That her stepdad wiped her vagina with a flannel. He put his penis on her vagina. And he touched her vagina with his fingers.

She was in the sitting room on a mattress on the carpet in the house in Reservoir. He took her pants off and told her to open her legs. He had a flannel. He took her undies off and started to wipe her vagina. He did it for 10 or 20 minutes.

Her little brother [D] was not far away. He was five or seven months old. Her mum went out to get nappies and it took a long time. It was a Sunday afternoon.

He told her to get the flannel. Then he told her to lie down and took off her pants and her undies and started to wipe her vagina.

The time when he put his penis on her vagina was on a chair in the sitting room. He told her to lie down again and told her to take her pants and undies off. Then he untied his shorts and showed her his penis. He told her it was called a penis and put it on her vagina. He moved it a little on her vagina. He told her that her rude part was called a vagina. Then he closed his pants again and tied it. She put her undies and pants back on.

The chair had a sheet on top of it. It was like a big couch.

She could not remember what his penis looked like. It looked sort of like a tube, a cylinder. His penis was facing her vagina. He was in front of her. Her legs were apart like last time.

He held his penis with his hand and moved it on her skin.

She thought it was another Sunday as her mum went somewhere. She thought it was around 3 weeks after the day with the flannel. ... [D] was on the mattress in the room.

Another time he touched her vagina with his fingers. She was on the mattress in the sitting room, as he told her to lie down. He took her pants off and her undies. He started touching the inside of her vagina and then smelled his fingers. Then he touched her vagina again.

She could not remember how many fingers he used. He was touching it a lot, hard. He smelled his fingers and then he said that she should shower better. He touched her vagina more, she thought for about 10 or 20 minutes.

She thought her Mum went to the gym and bought some more nappies. It was on a weekend. It made her feel yucky.

When he put his penis on her vagina he was in front of her, kneeling.

[37]

[HER HONOUR]: You have come to court today, do you know why you've come to court today, [L]?

[WITNESS]: Yes.

[HER HONOUR]: Why do you think you've come to court?

[WITNESS]: To give evidence of what my step dad did to me.

[HER HONOUR]: I want to talk to you about something that's important and that's the rules that we have in court. I suppose you know about rules because I think that if you're - you're eight now aren't you?

[WITNESS]: Yes.

[HER HONOUR]: You must go to school?

[WITNESS]: Yes.

[HER HONOUR]: What grade are you in at school?

[WITNESS]: Grade 3.

[HER HONOUR]: Did you finish Grade 3 this year?

[WITNESS]: Yes.

[HER HONOUR]: I bet there are some rules at school, are there?

[WITNESS]: Yes.

[HER HONOUR]: You have to obey the rules?

[WITNESS]: Yes.

[HER HONOUR]: We have some rules at court as well and the most important rule is that you tell the truth?

[WITNESS]: M'mm.

[HER HONOUR]: Do you know the difference between saying something that is true and telling a lie?

[WITNESS]: Yes.

[HER HONOUR]: What do you think the difference is, if I said to you, [L] you're wearing a pink top with elephants all over it, would that be the truth?

[WITNESS]: No.

[HER HONOUR]: Why?

[WITNESS]: Because I'm wearing a blue top.

[HER HONOUR]: You are wearing a very pretty blue top. If you told me that it was a pink top with elephants you'd be telling a what?

[WITNESS]:A lie.

[HER HONOUR]: When you tell us what you're going to tell us today, do you think it's important that you tell the truth?

[WITNESS]: Yes.

[HER HONOUR]: What do you think might happen if you didn't tell the truth?

[WITNESS]: I would get in trouble.

[HER HONOUR]: You understand that it's important that if you don't know the answer to the question, if you just say, I don't know. What will you say if you don't know the answer?

[WITNESS]: I don't know.

[HER HONOUR]: Sometimes lawyers ask questions that are hard to understand, sometimes I can't understand them. If they ask you a question that you can't understand you just say, I can't understand. Then the lawyers will have to ask you a different question, I'll ask them to ask it a different way?

[WITNESS] Yes.

[HER HONOUR]: You know sometimes that someone asks you a question and you think, I don't know what they mean, but then when they ask it in a different way then you can understand?

[WITNESS]: Yes.

[HER HONOUR]: If that happens you just say, I don't know, and don't feel embarrassed about saying I don't know because I've said to you, sometimes the lawyers ask questions and I don't know what they mean, all right?

[WITNESS]: Yes.

[HER HONOUR]: If you don't remember just say, I don't remember, that's fine?

[WITNESS]: Yes.

[HER HONOUR]: It is important that you don't say things that you sort of remember or anything like that, only say things that are true and if you don't remember you just say, I don't remember. What will you say if you don't remember?

[WITNESS] I don't remember.

[HER HONOUR]: If you don't understand what will you say?

[WITNESS] I don't understand.

[HER HONOUR]: If you don't know what will you say?

[WITNESS] I don't know.[5]

[45]

In considering the evidence of complaint, in considering the evidence of the conversation with Rachel May, you should bear in mind that of course it springs from the same source as the evidence of the crime. That source being [L]. It may or may not demonstrate consistency, but it is not to be regarded as evidence independent of [L] giving additional support to the probability that the crime happened. It is only effect, the only effect of this evidence, is upon the credibility - is upon your assessment of the credibility of [L] as a witness. The credibility of her version of events. The conversation with Rachel May is not led as to the truth of the allegations [L] then made. It is not direct evidence of the alleged offending in the way that the other evidence that she gave is direct evidence of it.[8]

...

You may not use Rachel May's evidence that [L] said that the last occasion, to Rachel May, was the previous Sunday. That would be using this conversation as to the truth of what was said within it, and you cannot do that. So you are left with the inexact evidence of what period of time passed. However, the issue here, I direct you, is not so much an issue of precise time. Rather, whether the timing of the conversation and all of the other relevant circumstances, including the circumstances of the conversation itself, do show consistency. Whether those things do show consistency and, therefore, support for the credibility of [L].

So that is how you approach it. You do not trouble yourself with whether it was so many weeks or not. You look at all of the circumstances, and that would include the age and circumstances of the complainant and the circumstances of the conversation itself and what circumstances surrounded it. You use those things, the timing of the conversation, the conversation and its circumstances to the question of whether or not, in your mind, those things, this evidence shows consistency and, therefore, supports the credibility of [L] in her version of what she said happened to her. This evidence, this conversation on 6 September with Rachel May may only be used for that purpose. It may only be used for that limited purpose. As stated, it is a matter for you as to whether or not this evidence does show that consistency or whether it does not.[9]

...

As I have said, you may use the conversation of 6 September in relation to the question of whether it supports the credibility of [L]. If you find it was made at a time and in circumstances that you assess shows consistency. Now, you may also use the conversation and the circumstances as to consistency and, therefore, credibility even if you do not find that it was made at the first reasonable opportunity. That is irrespective of the timing of it. Now, if you do not find that it was made at the first reasonable opportunity or at a time that shows consistency or tends to show consistency, the evidence from the Crown's point of view may lack the added support of timeliness or timing of the allegations, but it still may be used by you as to the question of [L's] credibility. For example, you may consider its circumstances and compare what was said to Rachel May with what was said in the VATEs about the alleged offending, and you can do that to assess the consistency or inconsistency of [L's] conduct.

The Crown says it evidences, it shows consistency. The defence says that that consideration shows inconsistency, and I have already put some of the arguments to you about the conversation in that slightly different context a moment ago. I remind you that what was said to Rachel May may not be used as to the truth of the allegations made. It is not to be used as direct evidence of the allegations, not to be used as direct evidence of the alleged offences. Therefore, for example, it is not evidence that the last occasion of offending was the previous Sunday. It is not evidence that there were six or seven occasions of offending. That is not the Crown case. The Crown alleges three specific occasions, three specific offences and no more than that.[10]

At a glance

Court

Decision date

Before

Source

Judgment (64 paragraphs)

Parties

Cases Cited (1)