R -v- E (Warwick)
E was accused by the daughter of his partner (aged under 13) of sexually assaulting her on two occasions on one evening.
E admitted that he had drunk a lot of alcohol that evening and that the girl’s mother was so drunk that she had retired to bed sometime earlier than the time of the alleged incident.
The girl said that she had told her brother what had happened in-between the first and second part of the incident yet the Prosecution suggested that the brother’s evidence was “incapable of belief” and did not call him.
The original jury could not reach a decision and therefore the Prosecution decided to retry E.
In the second trial the Prosecution considered calling the brother but we successfully persuaded them not to having shown them their own correspondence to the effect that they believed the brother was “incapable of belief”.
When we initially asked for disclosure of any social media traffic between the girl and her friends from the evening in question and the following morning (the day she told school teachers), we initially expected to obtain information showing that she was discussing such matters with her friends.
The lead police officer in the case (the OIC) said, via the CPS, that he had considered all relevant telephone material and there was nothing to disclose.
One of the original points in the instructions given by our client was to the effect that she had been using social media all night long and we felt certain that there was traffic between her and her friends.
We insisted that further forensic examination of the telephone was undertaken by the OIC which resulted in him confirming that there was indeed social media traffic however it was with the girl’s grandmother and not her friends.
The information showed that the girl was having a traumatic time, especially as her mother was always drunk and she considered that her mother was drunk more often and more excessively when she was with E.
This information served to show that she had motive to remove E from the family home so that her mother would hopefully drink less often and in less copious amounts.
Although we cannot say what persuaded the jury to reach the position where once again they could not decide upon a guilty or not guilty verdict, we believe that the tenacious attitude that we showed towards pressing the Crown for further disclosure, resulting in the disclosure of the social media information that passed between the girl and her grandmother was sufficient to show that she had motive to lie about the circumstances that she complained of.
The jury were “hung” once more. The Prosecution offered no evidence and therefore formal not guilty verdicts were entered in relation to E.
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