Warning
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
DATE: 2025 04 30
Toronto Region
Ontario Court of Justice
Between:
His Majesty the King
— AND —
A.P.
Before Justice M. Waby
Reasons for Judgment released on April 30, 2025
Ms Brosh — Counsel for the Crown
Ms Khan — Counsel for the Accused
Reasons for Judgment
Waby M:
[1] A.P. is charged with a single count of sexual assault as against J.T. The sexual assault is alleged to have happened on 24th December, 2022 at the family home of the accused and allegedly occurred during the course of a family Christmas gathering where Mr. A.P. is alleged to have laid on top of Ms. T. while she was on a sofa and ground his pelvis into her while attempting to unbuckle her trousers. A.P. pleaded not guilty.
Overview
[2] The case for the Crown is advanced through the testimony of the complainant Ms. T. and her estranged wife, S.L., and is supplemented by a series of photographs that were entered as exhibits which depict the residence and residents and guests in it as well as brief evidence from D.C. Rescigno, the officer in charge of the case.
[3] Mr. A.P. testified in his defence and called three additional witnesses who were guests at his home that evening; his brother J.P. and close friends and neighbours Mr. R.M. and his wife M.M.
[4] It is common ground between the parties that the Crown’s case stands or falls on my findings of credibility and reliability on the whole of the evidence tendered at this trial.
[5] The test that governs the analysis of credibility in this context is proof beyond a reasonable doubt. It was explained by the Supreme Court of Canada in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.) and other case law as follows:
[6] If I believe Mr. A.P.’s evidence, I must acquit him.
[7] Even if I do not believe his evidence but I am left in reasonable doubt by it, or any of the other evidence, I must acquit him.
[8] Finally, even if I am not left in doubt by his evidence, I still must consider it and all of the evidence and ask myself, on the basis of the evidence that I do accept, whether the Crown has proven guilt beyond a reasonable doubt.
[9] Proof beyond a reasonable doubt goes hand in hand with the presumption of innocence which is a fundamental principal of our system of justice.
[10] The burden of proof in a criminal trial always rests with the Crown. The burden of proof is a heavy one. It is proof beyond a reasonable doubt in relation to each of the offence’s essential elements. A reasonable doubt is not an imaginary, far-fetched, or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense.
[11] I may accept some, all or none of a witness’s evidence.
[12] To be clear, it is not sufficient that on the whole of the evidence I am satisfied that A.P. is probably guilty and a criminal trial is not a credibility contest. Even if I believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances a judge must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy the court of the guilt of the accused beyond a reasonable doubt.
[13] In R. v. J.H.S., 2008 SCC 30, the Supreme Court qualified the W(D) instruction with an additional prong, partly in recognition that a trier of fact “may believe some, none, or all of the testimony of any witness, including that of an accused” (para 10). This prong is that where the trier of fact is unable to decide whom to believe, the accused is entitled to an acquittal (paras 11-12).
[14] Put another way, it reflects that the trier of fact must not treat “conflicting testimonial accounts” as a credibility contest, in the sense of deciding whether they accept one or the other. “The main point is that lack of credibility on the part of the accused does not equate to proof of his or her guilt beyond a reasonable doubt”: JHS, ibid at para 13.
[15] The burden never shifts to the accused to establish their own innocence, and the onus always lies with the Crown to prove every essential element (R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 13).
Issues
[16] The central issues in this case before me are those of reliability and credibility.
Summary of Relevant Evidence
Evidence of D.C. Rescigno
[17] D.C. Rescigno testified as to some of the investigative steps he took in respect of the allegations when they were made some 10 months following the alleged incident. The officer testified that this included contacting potential witnesses, only one of whom returned his call and indicated that he did not wish to provide any information to the officer on the basis of legal advice he had apparently received. The officer accepted it was possible he had only reached out to potential witnesses on one occasion and confirmed that the Accused turned himself in when and where requested.
Evidence of J.T.
[18] Ms. T. gave evidence she has known the accused for approximately 13-15 years. She is married but estranged from her wife S.L. who is the step-sister of the accused’s wife. Ms. T. testified on the first day of her evidence with the support of a service dog and briefly testified as to some of the mental health challenges that she has been managing for a number of years, including PTSD for which she had her own service dog. She candidly explained that she is not comfortable in social situations and does not like to be touched in any way or enjoy crowded or busy spaces and she does not drink alcohol.
[19] It was her evidence that she typically only saw the Accused and his family on holidays or other intermittent family gatherings and that she was supportive of attending the Christmas eve gathering as her wife S.L. was keen to try and rebuild her relationship with her family. Prior to the night of the alleged incident she testified that she had experienced no particular issues with the accused prior to the alleged incident although he tended to respect her physical boundaries a little less when he had consumed alcohol but he had not touched her inappropriately before.
[20] On the date of the alleged incident Ms. T. gave evidence that she, S.L. and her service dog Reese arrived at the Accused’s residence some time between 4pm-6pm. Present were the Accused, his wife K.P. and their two young children, S.L.’s father Ja. and his wife Ma., two friends and neighbours R.M. and M.M., their dog and the accused brother J.P.
[21] Ms. T. testified that people were chatting and drinking and socialising prior to the dinner that they all ate together. She described the general level of intoxication at the table among the other adults and her own level of anxiety as increasing throughout the meal.
[22] At the end of the meal a family game of cards was played and after she was eliminated Ms. T. left the table and went to sit on a 3-seater couch in the adjoining sitting room by herself with her dog and her phone. This room was only partially separated from where they had eaten by a wall or large wide doorway and she could not recall whether she could see any of the other family members from where she was located. She identified herself, her dog and the couch and sitting room from photographs that were entered as exhibits.
[23] Ms. T. testified that she was the only one in the sitting room and that after about 10 minutes the Accused walked in to the sitting room, approached her and removed her phone from her hands and tossed it onto the floor. The next thing she recalls was the Accused lying directly on top of her and being stretched out on her back on the couch. She has no recollection of how she came to be lying on the couch and does not recall the accused pushing her back or any part of him touching her at that point.
[24] The next thing Ms. T. recalled was the Accused’s head on her chest and him grunting while grinding his pelvis into hers. She testified that she felt the Accused’s erect penis pressing against her and after refreshing her memory from her police statement she recalled him trying to pull her pants down. It was her evidence that she froze while this was happening and said nothing as she was having flashbacks to a previous similar incident that had traumatised her.
[25] Her evidence was that her dog Reese then leapt up and lunged at the Accused and forced him to move away from her and move to the other end of the couch. She testified that her recollection of what happened afterwards was vague but she recalls hearing her wife S.L. say words to the effect of “[A.P.], that’s my wife, what the hell are you doing?” in a jokey tone.
[26] It was her evidence that she and S.L. then left the residence very shortly afterwards and then as they began to drive away the Accused came running out of the house and briefly clung to their car before they drove away and he stumbled back.
[27] Subsequent to the alleged incident Ms. T. has not seen the Accused or any of the other family members. She accepted that she and S.L. had spoken about the incident but testified that the focus had been more on S.L.’s excessive alcohol consumption and Ms. T.’s view that this contributed to what had happened and her concerns about her wife’s excessive alcohol consumption. She and S.L. have now separated. When asked why she waited 10 months to report this incident Ms. T. testified that she had something similar happen in her own family and it had torn her family apart and she did not wish the same to happen to S.L.’s family as she was trying to build a relationship with them.
[28] Ultimately it was her evidence that she reported the matter because she did not feel she could internalise this incident any longer and was afraid the accused would do the same to someone else.
[29] In cross examination Ms. T. gave evidence that she was confident she had been playing hockey with the Accused outside before the dinner and that she was in goal. She confirmed that some of her memories of the evening were clear and others were not and she confirmed screenshots of some texts messages that she had taken from her phone and sent to S.L.
[30] Ms. T. testified that she did not keep original chain of text messages on her phone as she found this stressful and that she did not want to review messages relating to the alleged incident that she had sent to her friend A. She also testified that she did not like keeping long chains of messages on her phone. Ms. T. also accepted that she may have told the police that she had an issue with not remembering things, including messages that she had sent and received and that this forgetfulness frustrated her.
[31] In cross examination Ms. T. accepted that she suffered from memory gaps in general and on a variety of topics. She accepted that in one of the text messages she has texted that “S.L. looked over at her while she was on the couch during the assault and looked wasted” but testified that she could not remember that having happened.
[32] When asked whether she and S.L. had conflict over this alleged incident Ms. T. gave evidence she didn’t blame S.L. as she believed she was very drunk at the time and confirmed that she did not like S.L.’s drinking. Ms. T. confirmed that S.L. had attended a family meeting some months later about the alleged incident but she did not attend and did not ask her about it as she did not want to know what had happened.
[33] Ms. T. gave evidence that S.L. has apparently recorded the entire family meeting but she did not want to listen to it. She denied the family’s suggestion that she was making up the allegation because she had some significant mental health challenges and had enlisted S.L.’s support.
[34] When it was put to her in cross examination that S.L. had been outside the residence during the alleged incident Ms. T. testified that she did not remember. She also gave evidence that she did not remember whether the Accused brother J.P. was seated on the love seat in the sitting room when she was seated on the sofa and the Accused came into the sitting room or whether R.M. was also seated in a rocking chair next to her. Ms. T. gave evidence “there could have been a pink elephant in the room and I don’t remember” and she didn’t recall whether she had ever been in the sitting room alone or not once she left the other guests.
[35] Ms. T. disagreed with the suggestion that there was no inappropriate physical contact between her and the Accused and that all the accused did at one point was to playfully jostle her shoulder and remove her phone from her hands.
Evidence of S.L.
[36] Ms. S.L.’s evidence can be summarized thus. She testified that she and Ms. T. had been married for a number of years but had been separated since July 2024. There is little significant substantial variation between Ms. L. or Ms. T. and of any of the witnesses as to the general events leading up to the alleged incident which Ms. L. testified that she witnessed.
[37] It was her evidence that the culture of drinking is normal in her family. It was her evidence that as the evening wore on she noticed the effects of alcohol becoming more apparent on the Accused and that he became more touchy-feely, slurred his words and was a little unsteady on his feet and that while she herself had been drinking she had not drunk to excess and was not drunk.
[38] Ms. L. gave evidence Ms. T. left the dinner table during the card game and went to the sitting room. She testified that she did not see anyone else in the room at that time. Subsequently she testified that the Accused got up from the table and went into the adjoining sitting room. It was Ms. L.’s evidence that shortly after this she stood up and turned and had a clear view of the couch that Ms. T. was on and that she saw the accused lying on top of her.
[39] She recalled seeing no other person in the room with them and only their dog was also present who was sitting on the floor. It was her evidence that she stood on the threshold of the two rooms for 3-4 minutes and said nothing and that the Accused seemed oblivious to her presence. She described the Accused as grinding his hips into Ms. T.’s lower section, his face was close to Ms. T.’s and that he was sweating heavily. She described the Accused physical movements as ‘sloppy.’
[40] Ms. L. testified that Ms. T. looked directly at her during the incident and seemed afraid. She gave evidence that she didn’t do or say anything for the 3-4 minutes as she was in shock at what she saw. This incident ended when their dog Reese jumped up and lunged at the accused.
[41] She testified that the accused got up and off Ms. T. and lurched around towards Ms. L. and as he did she said to him in a jokey fashion, “hey what are you doing that’s my wife”. She gave evidence that the Accused then hugged her and pulled her close and that she felt his erection on her leg. She gave evidence that she saw no one else in the room at this point in time but Ma. subsequently came into the room to apparently console Ms. T. but she accepted she couldn’t hear what was said.
[42] Ms. L. gave evidence that she and Ms. T. left shortly afterwards but couldn’t recall if anyone followed them out of the house or where the Accused was located and that no one said anything to them.
[43] In cross examination Ms. L. confirmed after the alleged incident she had gone over to her father’s house at some point in the winter of 2023 to take him to a hockey game and that Ma., his wife had told her she wasn’t welcome in the house. She also testified that she went to a family meeting in October, 2023 to try and iron things out.
[44] When asked what led to the meeting, Ms. L. gave evidence that Ms. T. had been speaking to her care providers and that the incident arose during the course of her therapy and that Ms. L.’s sense was that Ms. T. needed to have the issue addressed and may have wanted to escalate things and she wanted her family to know. She also confirmed sending a text message to K.P., the wife of the accused, requesting a meeting. It was her evidence that she and Ms. T. made the decision to stop attending family functions as they did not feel safe doing so although she still loved her family.
[45] In cross examination Ms. L. accepted that she and her wife had spoken about the incident after it had happened and that Ms. T. had been upset with her. She confirmed that at some point she had been outside the residence smoking and that she had seen Ms. T. playing hockey with the Accused.
[46] Ms. L. could not recall whether the Accused brother was present at the gathering and testified that she drank approximately 3-4 drinks herself that night. She could not recall whether the Accused had latched himself on to their car as they left. It was her evidence that she had a good view of the events she said happened but she could only place the whereabouts of herself, Ja. and Ma. She testified that she believed that R.M. and M.M. had left before the incident.
Evidence of A.P.
[48] A.P.’s evidence can be summarised as follows. He identified the various attendees and family members at his house on the night in question and recounted a broadly similar version of events to that of Ms. T. and Ms. L. leading up to the alleged incident.
[49] It was his evidence that he had been drinking prior to dinner but not to excess and that he didn’t drink during dinner as he didn’t like to mix the taste of food with alcohol and that after dinner he probably moved on to vodka and water as a drink. He described the adults playing cards after the dinner table had been cleared. At some point Ms. T. left the table and after the card game had ended Mr. A.P. testified that people dispersed.
[50] It was his evidence that K.P., M.M. and S.L. all went outside for a cigarette, he went in to the sitting room where R.M. was in the rocking chair, his brother J.P. was on the love seat and Ms. T. was seated on the sofa and her dog was sitting on the floor. He recalled Ma. remaining at the dining table.
[51] A.P. testified that he sat on the arm of the sofa between Ms. T. and R.M. and tried to engage with Ms. T. who was on her phone. He gave evidence that he gently removed the phone from her hands and tossed it onto the far side of the couch. Further to this he then performed what he called a ‘steam roll’. This was a motion that he described as being a brief, friendly, non-sexual movement in which a person physically rolled a part of their body on to that of another person. Effectively a form of ‘jostling.’
[52] A.P. described turning his body to make contact with Ms. T.’s left shoulder and upper back. He denied at any point that Ms. T. was horizontal on the sofa and denied lying on top of her or placing his head on her chest or grinding his pelvis into hers. He further testified that at no point did either Ms. T.’s dog or the dog belonging to the M.’s bark or lunge at him.
[53] When asked whether Ms. L. spoke to him at any point during this ‘steam roll’ incident Mr. P. gave evidence that she had not as she was not present and was outside smoking with his wife and M.M. He denied that there was any obvious physical, verbal or emotional reaction from Ms. T. and that he was certain that R.M. and his brother J.P. were present.
[54] After the ‘steam rolling’ A.P. testified that the party just moved on and that there was more chatting and nothing unusual and that he stood up and spoke with R.M., J.P. and Ma. He recalled S.L., M.M. and his wife coming back in from their cigarette and hanging their jackets up. The party ended when people began to disperse, he recalled that J.T. and S.L. left first as they had the longest drive and that R.M. and M.M. left at around midnight. He denied hugging S.L. as she alleged and testified that the next time he heard from S.L. was on 8th January when she sent him a text wishing him a happy 40th birthday and welcoming him to the ‘40s club’.
[55] Mr. P. testified that he was shocked when he first learned of the allegations once S.L. had initially raised them some time after the party. He described attending the family meeting to discuss the allegations and that S.L. seemed very uncomfortable and that she could barely speak and he formed the impression she was lying about what was said. He testified that prior to this incident he had no hostility to either S.L. or J.T. and that he considered them like sisters and that he did not know or believe that J.T. would have had any issue with being touched by him in the playful steam rolling incident he described.
[56] In cross examination Mr. P. agreed that J.T. had not been drinking that night. He agreed that he did not ask Ms. T.’s permission to remove her phone from her hands as he described nor did he do so with respect to what he described as the playful ‘steam-rolling.’ He denied being ‘sloppy drunk’ or having drunk to excess on the night of the incident. He accepted that he knew Ms. T. had a service dog for emotional support but was unsure of the specifics as to why. He testified that he and J.T. had previously played hockey together and it seemed to make her happy but that they had not played on the day of the incident and that she was confusing this with another occasion.
[57] Mr. P. accepted that he saw Ma. approach Ms. T. at some point after the steam rolling but did not know what was said between them. He denied sexually assaulting Ms. T. as alleged or that S.L. made any comment to him with respect to ”her wife”.
Evidence of R.M.
[58] R.M. is a friend and neighbour of the Accused and has known him for approximately 12 years. He recounted a similar chain of events to other witnesses leading up to the alleged incident and of the various individuals present at the house that night including his own dog Lola who was present.
[59] It was his evidence that after the card game was finished, Ja. went upstairs and he and some others moved into the sitting room and that the television was on. He testified that he sat in the rocking chair for the remainder of the evening and that J.P. was also in the room seated on the love seat after dinner and that Ms. T. was on the couch and they all chatted for a while.
[60] It was R.M.’s evidence that A.P. subsequently came into the sitting room and approached J.T. and said words to the effect of ‘give me a Christmas hug’ and placed his arms around her to hug her but she pulled away and said ‘no.’ It was his evidence that this amounted to the entirety of the physical interaction between the Accused and Ms. T.
[61] He gave evidence that neither dog at any point jumped up and barked and that if Reese had done so his own dog, Lola, would have done likewise and he was sure that this had not happened. He was also sure that S.L., his wife M.M. and K.P. were all outside smoking when the attempted hug occurred. He recalled S.L. and J.T. leaving shortly after S.L. returned from her cigarette and that A.P. said he would walk them to their car.
[62] In cross examination Mr. R.M. agreed that he considered the Accused a good friend and that they had previously spoken about the progress of the case but not his own recollection of the events. He testified that after the women came back in from smoking, extra chairs were brought in the sitting room and everyone chatted for a while before anyone left.
Evidence of M.M.
[63] The evidence of Mrs. M.M. can be summarised as follows. Her evidence broadly aligned with that of the other witnesses prior to the alleged incident occurring after dinner and the card game. She accepted that she and her husband had discussed the allegations and that she had taken the Accused to the police station to turn himself in. She testified that once A.P. retained counsel they stopped talking about the incident.
[64] It was her evidence that after the card game had finished she decided to go outside for a cigarette and that K.P. and S.L. also went outside with her to smoke too. She estimated that they were outside for about 5 minutes as it was quite cold and that once they returned, she and K.P. and S.L. went into the sitting room and she grabbed a drink and sat on the floor and resumed chatting with people. It was her evidence that at no point did she witness any physical interaction between the Accused and J.T.
[65] M.M. testified that she has kept a journal for many years in which she writes daily. She testified that she had also noted nothing of any significance in her journal for the date of the alleged incident and would have written it in there had she done so.
[66] In cross examination M.M. accepted that she may have left the sitting room for short breaks throughout the evening but testified that it would not have been for any significant period of time. She gave evidence that there was nothing unusual about the timing or manner of J.T. and S.L.’s departure from the house and that the Accused escorted them to the car as he always does with any guests. M.M. along with her husband also denied being contacted by the police with respect to the alleged incident.
[67] It was her evidence that she vaguely recalled the Accused sitting on the same sofa as J.T. at some point and that everyone was in and out of the room throughout the balance of the evening and she recalled no physical interaction between the Accused and J.T. at any point. She described the evening as pleasant but unremarkable.
Evidence of J.P.
[68] Mr. J.P. also described the evening as unremarkable as indeed was his general recollection of the events of the night in question. He testified that he had no real recollection of events before dinner and that he had consumed about 5-7 drinks throughout the night. He recalled his brother being on the sofa next to J.T. but did not recall any conversation between them or any physical interaction while he was seated on the love seat in the sitting room. He denied receiving any call from the police about the incident.
Summary
[69] It is abundantly clear that there are very different accounts of what occurred on the Christmas Eve of 2022 at the residence of Mr. A.P. Not only is there a fundamental difference as between the versions provided by Ms. T. and Ms. L. and that of the other witnesses but there are significant differences in the versions provided by the Accused, R.M. and his wife M.M. The Accused brother J.P. may fairly be described as a marginal character in these alleged events. He is one whom several witnesses initially forgot was in attendance and whose evidence is most accurately summarised as “I don’t remember”.
[70] I am mindful that courts should not assume a credibility gap in a complainant, or indeed an accused person, in sexual assault cases because of inconsistencies in their evidence around minor issues which may have a legitimate explanation.
[71] Given the necessarily high standard of proof required in a criminal trial, it is not enough for a judge to find that an accused is probably guilty. As previously indicated, a judge must be satisfied beyond a reasonable doubt of the guilt of the accused. As I have previously indicated a criminal trial is not a credibility contest between the parties and it cannot be reduced to that.
[72] Ms. T. and Ms. L. presented as consistent and credible witnesses who each gave their evidence in a candid, clear and forthright manner. The evidence they recalled was not meaningfully undermined in cross examination. They each made reasonable concessions where appropriate and were open to reasonable suggestions by defence counsel.
[73] Both witnesses were clear and unshaken in the core elements of the allegations as well as their versions of the surrounding circumstances to the extent that they remembered them, although they do differ significantly as to the level of Ms. L.’s intoxication and when R.M. and M.M. departed. I note that these allegations involve an obvious and sustained sexual assault occurring during the course of a family gathering in a room readily open to view and access by nearby family and guests at any point in time and in which Ms. T. concedes others may have been present, although she does not recall.
[74] Ms. T. was open and candid about the considerable memory gaps she suffers from, both generally and in her recollection of specifics of the night of the alleged incident. It is important to note that Ms. T.’s self-declared mental health challenges do not in and of themselves undermine her reliability or credibility and her evidence is to be viewed through the same lens as that of any other witness testifying before a court. It is clear that at times Ms. T. found the experience of testifying a challenging and upsetting experience but it is to her credit that she persevered and was able to deliver her recollection of the events.
[75] Similarly, Ms. L. presented as a consistent witness for whom the experience of testifying was not easy and for whom this incident has had a significant adverse impact on her relationship with both Ms. T. and her own family.
[76] Both Ms. Brosh for the Crown and Ms. Khan for the defence have rightly identified the central issues in this case as being those of credibility and reliability and that the outcome in this case is necessarily guided by the principles in W.D. and other related case law.
[77] Crown and defence had both raised the spectre of collusion on the part of the witnesses each side called. In fairness, and perhaps unremarkably, all witnesses acknowledged discussing the allegations among themselves. It would not have enhanced their credibility had they denied the natural and inevitable inclination to do so. Nevertheless, while there are starkly different versions of what occurred, there is no evidence before me to enable me to conclude any improper collusion occurred as between any of the various witnesses.
[78] Ms. T.’s partial recall describes the accused writhing and moaning on top of her on the sofa in a sitting room adjacent to a kitchen dining area where numerous family members are present and moving around. She is candid that she cannot recall whether other guests were in the room when this was happening or how she went from sitting up to lying down or whether anything was said to her by anyone.
[79] Ms. L. describes standing for 3-4 minutes and observing this encounter from the threshold between the rooms but cannot recall whether she saw anyone else present and described being ‘frozen’ throughout this considerable period of time, unable to speak or move.
[80] R.M. describes sitting in an adjacent chair and seeing the accused attempt to briefly hug Ms. T. and seeing her pull back and say “No” while S.L. and his wife and the accused wife were outside for a cigarette. Mrs. M.M. also testified that S.L. left with her and K.P. to go outside for a cigarette after the card game and that on her return she saw no physical interaction between A.P. and J.T. and subsequently saw nothing untoward at all take place.
[81] The Accused Mr. A.P. described his actions as a ‘steam-roll’ movement. Namely a brief, non-sexual form of friendly jostling that he employed to try and engage Ms. T. in conversation at the party.
[82] Given the necessarily high standard of proof required in a criminal trial, it is not enough for a judge to find that an accused is probably guilty and that A.P. probably did some or all of what is alleged. As previously indicated, a judge must be satisfied beyond a reasonable doubt of the guilt of the accused. As I have previously indicated, a criminal trial is not a credibility contest between the parties and it cannot be reduced to that. Nor does the mere fact one party calls more witnesses than the other imbue those witnesses with more credibility. Quality of evidence and not quantity is determinative.
[83] A reasonable doubt can also co-exist with a credible complainant. There is no doubt that Ms. T. and her partner Ms. L. both presented as credible witnesses. Similarly, the evidence of the accused was consistent and he was similarly unshaken from his evidence in cross examination. He presented as an earnest witness and also made reasonable concessions where appropriate but was clear and unshaken in his recollection of the key events of that night.
[84] While he would have probably have done well to be more circumspect about Ms. T.’s comfort levels and boundaries, on his evidence his contact with her was at worst, boisterous and slightly irritating but certainly not sexual in nature and did not represent the application of anything more than transient and trifling physical contact of an unremarkable kind in this type of family setting.
[85] Similarly R.M. and his wife M.M. presented as down to earth and credible witnesses who presented their evidence in a clear and unembellished manner. They similarly possessed all the hallmarks of honest witnesses. They were clear about their recollection of S.L. exiting for a cigarette and when and with whom she did this. R.M. also testified clearly as to a clumsy attempt at a friendly hug by A.P. on Ms. T. and nothing more.
[86] I accept, as do all the witnesses, that with the exception of Ms. T., all parties had been consuming alcohol to a greater or lesser extent on the night of the alleged incident. I am unable to determine the extent to which, if at all, this may have impacted the accuracy of the evidence of any particular witness. It is also abundantly clear that these allegations and the subsequent trial have had a profoundly significant impact on the relationship between Ms. T. and Ms. L. as well as on the broader family relationships.
[87] Nevertheless, given the various irreconcilable and conflicting versions of events I have before me and the associated evidential issues that exist, on the totality of the evidence, I am unable to conclude that the Crown has proven beyond a reasonable doubt that A.P. sexually assaulted Ms. T. as alleged and accordingly I find him not guilty.
Released: 30th April, 2025
Signed: Justice M. Waby