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R. v. D.H. | Examples Of Favourable Verdicts

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CLOSING ADDRESS

“Good afternoon Ladies and Gentlemen,

It now becomes my duty as well as my privilege to address you on behalf of David Henrige. As the defence has elected to call evidence, therefore I am obliged to speak with you first. When I sit down, you will hear no more from the defence – the prosecution will have the last word. Now, there may be things the prosecution says that I would like to answer or that should have reply. Please know that I cannot reply. I am not permitted to do so by our rules. Therefore, I must attempt, as best I can, to anticipate the Crown’s arguments. If I fail to anticipate her arguments, that is because of my own shortcomings. I trust that your recollection and interpretation of the evidence will provide the answer.

You all are the judges of fact. Nothing is a fact unless you find it to be so. And, while I might comment on the evidence as I recall it, as might the prosecution and His Honour, if your findings of fact or recollection are different than what we state, rely on your own findings – it’s your ultimate role.

His Honour is the judge of the law. You must accept the law from him as given to you. If what I or the prosecution says about the law conflicts with His Honour, you must accept the law as stated by His Honour.

It is your ultimate function to decide whether the prosecution has proven beyond a reasonable doubt that David Henrige is guilty of offences of sexual assault and sexual interference against Jason Pierce and Gregory Coldwell. That is, did he, during the period of time between January 1, 1977 and December 31, 1979 sexually touch Jason Pierce and Gregory Coldwell in the manner they have described? Has Crown proven this beyond a reasonable doubt?

In making your determination, you start with the presumption of innocence. Ladies and Gentlemen, this is not a law to shield guilty but one to protect the innocent – for there is no greater nightmare in a free society than the wrongful conviction of an innocent person. To avoid this nightmare, the law affords each and every citizen the presumption of innocence. The law says the prosecution points finger; the prosecution asks you to jeopardize the accused man’s liberty; therefore, it is required to prove guilt beyond a reasonable doubt and do it beginning with the presumption of innocence. What this means is that David Henrige is innocent now; he is innocent while the judge is charging you with the law; and he is innocent while you are deliberating. Unless and until you are convinced of his guilt beyond a reasonable doubt, the presumption of innocence continues.

Now, let’s talk briefly about the concept of reasonable doubt. What does guilt beyond reasonable doubt mean? Let’s take an example: “I suspect the accused person is guilty.” This, Ladies and Gentlemen, is not guilt beyond a reasonable doubt. “I believe the accused person is guilty.” Again, this is not guilt beyond a reasonable doubt. “By the majority of the evidence I think he is guilty.” Even this is not guilt beyond reasonable doubt. Guilt beyond a reasonable doubt is when you are “driven irresistibly to a point of moral certainty to say this man is guilty of all of the elements of the offence charged.” You cannot act on speculation: You cannot act on conjecture: You cannot act on suspicion or 100 suspicions piled on top of one another. You can only act on moral certainty – and unless you reach that level of moral certainty, you are duty bound by your oath to acquit.

To determine the facts of this case, you must examine the evidence. So, let’s look at what we have here:

This, ladies and gentlemen, is a story that goes back three decades and starts with a boy named Jason Pierce. Jason grew up in a household with three other siblings. One day, Jason sees that Shaun, his older brother, is consistently getting more attention than anyone else; that he is getting special treatment. Mom is spending extra time with him and going places with him. Jason becomes jealous of Shaun and wants some of that special attention as well. He wants Mom to focus on him too. He would like Mom to spend time with him just by himself.

He knows that Shaun is getting this attention and he started getting it right after he said that he was sexually assaulted by the man of the house (at the time – Gary Coldwell – the husband of Cristina Coldwell at the time and the father of Cody Coldwell and Gregory Coldwell.) That’s all it would take to get some of that special attention. He decides that he is going to do the same and so, he comes up with a similar story.

He says that David Henrige (the man his mother happened to be living with at the time) has touched him inappropriately. He reveals this to Lucas O’Connor – the same boy that Shaun revealed his sexual abuse to: A boy who is, in fact, the same age as Shaun, not Jason. You see, it’s a formula – “Just do what Shaun did and I’ll get what he got.” Jason sets the wheels in motion by telling Lucas and it seems at first that things are working fine. It looks like he’ll be getting that special attention (the joint counseling sessions, the understanding, the sympathy) in no time. Lucas O’Connor has sympathy and understanding. He takes Jason to the school social worker. It all seems to be falling into place. Things seem to be going well. Going well, that is, until Jason and his mother get home.

That’s when it all starts to fall apart. In the privacy of home, Mother tells Jason Pierce that she doesn’t believe him. Jason insists that it’s true but his mother doesn’t believe him. But Jason Pierce has already set the wheels in motion. The police get involved. Jason Pierce sticks to his story but it backfires on him – it completely backfires.

When Shaun revealed that he had been sexually assaulted to Cristina Coldwell, Cristina Coldwell kicked the perpetrator out of the house. She kicked out Gary Coldwell and terminated her relationship with a man who was her husband and the biological father of two of her children. Cristina Coldwell then started attended counseling with Shaun and doing what was right for Shaun. But this time around it’s completely different. Cristina Coldwell completely disbelieves Jason and at one point she even calls her own son a “fucking, lying, little bastard”.

Does she kick David Henrige out of the house? NO. She kicks Jason, her own son, out of the house. She sides with a man who’s only her boyfriend: He’s not married to her; he has no children with her. Ultimately, when she does part ways with David Henrige, it’s not because she believes Jason,but because she has found herself a new mate. Does she attend counseling sessions with Jason? Not even one. When she does finally let Jason back into the house, she begs him to please drop the charges against David so that “we can be a family again at Christmas.” Ultimately, Jason doesn’t show up in court and the charge is dropped.

But that doesn’t end the story because Jason remembers. He remembers how he was disbelieved and treated by his mother and it festers. All he wanted was some attention from his mother and look what he got. His mom doesn’t believe him and his older brother, Shaun doesn’t believe him – the two of them side against him and the resentment and anger festers for years. It eats him up on the inside until finally in 2002, it all comes to a head.

Jason has a conversation with his mother, and his mother tells Jason that she still doesn’t believe him. Despite all these years having past, despite David Henrige being ancient history, she still doesn’t believe Jason, her son. She still believes Jason Pierce was and is lying. They end up having an argument about it and Jason ends up in tears. It’s been building up all of these years and he can’t take it anymore. He is going to show his mother. He’s gonna make his mother believe. But this time – but this time, Ladies and Gentlemen, he’s going to tell the story in a way that no one could possibly ignore him or disbelieve him. It will be much bigger this time. This time, he’s not going to go it alone.

The first thing he does is recruits his younger brother, Gregory. Now, Gregory Coldwell has never mentioned to anyone before that he was sexually assaulted by David Henrige: Not to Jason Pierce, not to his mother, not to anyone including himself. Even Jason hasn’t ever claimed that Gregory Coldwell was touched by David Henrige. But he gets on the phone and sets out to convince Gregory Coldwell that he has. And after a while, Gregory believes that he has. Gregory Coldwell, who was previously completely unaware that any of this had happened, now suddenly recalls the details of over 100 incidents spanning three years or more. And off they go to the police to tell their story.

At a glance, from a distance, it appears to be a compelling story: That over the span of three years, they were inappropriately touched by David Henrige over 100 times on the living room couch, in the bed, and for Jason, at the hardware store. But what happens if we take a closer look at that story? What happens if we apply common sense and logic? Let’s see.

123 Oxford Street is a house with two bedrooms upstairs, where Jason and Gregory slept; a private bedroom downstairs where Cody slept; another room in that bedroom where Shaun slept. The layout of the main floor of the house is such that David and Cristina’s bedroom are connected to the kitchen, which is connected to the living room. The three rooms are connected without any doors between them – only open entrances.

Cristina Coldwell works the ‘graveyard’ shift. She puts the kids to bed and heads off to work. She works every Sunday, Monday, Wednesday, Thursday, and Friday. The kids are asleep in their beds and only David Henrige is at home. Apparently, he doesn’t do anything during this time. He doesn’t go up to their rooms. He doesn’t wake them up. He doesn’t approach them then.

According to Jason Pierce and Gregory Coldwell, he waits until Saturday morning – Saturday morning when everyone is home and all the kids are up. David Coldwell chooses to lie on the couch with Jason Pierce and Gregory Coldwell and molest them right there in front of their two other siblings, Cody and Shaun – one who himself has been sexually molested before – and with Cristina Coldwell only two rooms away – two rooms away with no doors in between them. He does this over 100 times and numerous times in front of Shaun and Cody with no apparent reaction from them. Where he could have done it secretly, David Henrige chooses to do it out in the open when there’s the greatest risk of him getting caught. He doesn’t even need to tell them to not tell or keep it a secret. Yet, supposedly he does it over 100 times and never does get caught.

Ladies and Gentlemen, I ask you to apply your common sense. Is this plausible? Does this type of behaviour make sense?

Let’s take a closer look at the story. Jason Pierce says David Henrige would come into the living room, to engage in the tickle-rub game, yet his hand would go straight for his penis. David Henrige wouldn’t even bother to pretend that there was any tickling involved. Gregory Coldwell, on the other hand, tells different story. He claims that he would, at the same time he’s on the couch with Jason, be tickled by David and then he would eventually work his way down to his penis. With a boy on either side of him, David Henrige is blatantly sexually assaulting one while he’s pretending to play a tickling game with other one. This, I suggest, is not consistent.

Gregory Coldwell says that he would come into the room, and say it’s time for the tickle game or let’s play the tickle-rub game and the three of them would lie down on the couch. Now, if you’ve ever lain down on a couch, your own experience will tell you that a couch is only wide enough so that one adult can lie down on it. It is narrower than a twin-size bed. If you had two baby infants, you would not lie down on a couch and place one on either side of you for fear that you would either crush one or the other one would fall off. Yet the three of them – a fully grown adult, an 11-year old, and a 6-year old are lying down on the couch together. David Henrige is in the middle. Jason Pierce is on one side. Gregory Coldwell is on the other. In this position, David Henrige is working his hands as described by the boys. I suggest to you it doesn’t make sense – it’s an improbable scenario.

So, the bout of sexual assault finishes on the couch. Then, the boys just pick up and go about their business: They continue to watch cartoons, go upstairs, and so forth. David Henrige doesn’t threaten either of them. He doesn’t tell either of them that this is just their little secret. He doesn’t warn them that if they reveal any of this then it will break up the family. Apparently he’s not concerned about anyone finding out.

Jason Pierce claims he didn’t like David Henrige touching him. Gregory Coldwell claims he was scared of him touching him and that he felt gross and very bitter when he did. Yet, after it’s done with they just get up and go about their business. And the following weekend, they find themselves back on the couch waiting for David Henrige. He doesn’t have to go and get them from their rooms. They’re already there on the couch waiting for him. Doesn’t this type of behaviour defy human experience?

Jason Pierce claims to have been sexually assaulted by David Henrige at the hardware store. Let’s look at the manner in which he claims this took place. He and David Henrige would go into the basement. He would tell him to remove his pants. He would touch his penis with his hand. He would put his pants back on. They would resume working. He wouldn’t say anything to him before the incident other than “Remove your pants and underwear.” There was no pretext of a tickle-rub game here. He wouldn’t say anything to him after the incident – not even “Don’t tell anyone.” or “This is our secret.” According to Jason Pierce and Gregory Coldwell’s testimony, there were times when David Henrige took just the two of them. David Henridge is supposedly regularly and openly molesting the two of them together in each other’s presence on the couch.
David Henrige has the two of them with him all alone in the hardware store – no one else is there to see. But why does he do it in a secretive manner to Jason Pierce in a room downstairs when the only other person present is Gregory Coldwell, whom he is supposedly molesting openly along with Jason Pierce anyways?
Why doesn’t he molest Gregory as well? It’s inconsistent and it doesn’t make sense. It’s also something never mentioned in Jason Pierce’s typewritten statement to the police in 1979. Why not? How could it possibly have been to his benefit to leave this information out?

Both men claim to have been molested by David Henrige in his own bed. Of course, how they got there or why they were there, neither could explain. Neither of them wanted to be touched by David yet, there they are in his bed.

Jason Pierce claims to inexplicably be lying in his bed one morning while he’s fondling his penis. His mother may or may not be somewhere in the house. He claimed, in court, two days ago that this is the one incident he can remember. This is in direct conflict, I suggest, with his videotaped statement of 2002, where he talks about being in David Henrige’s bed and refers to how he would touch “us”. “Us” and “we” were words that he uses several times and is obviously a reference to both him and Gregory. “It was always the same, he would call it a game”, he said on that videotape. But how did it go from “us” to “me”? First, he was talking about both of them being molested together in the bed and now he claims it was him alone. The story changes – but Ladies and Gentleman this is not an inconsistency that you can ignore. Again, why didn’t he mention this in his 1979-statement to the police? There was no apparent reason not to. This too is a fact that cannot be ignored.

Gregory Coldwell claims to have been in David Henrige’s bed on numerous occasions yet he cannot account for a single time as to how he got there or why he was there. He claims that on two occasions he woke up to find David Henrige’s hand just lying on his penis as he slept. Even if you were to accept this, Ladies and Gentleman, I suggest to you that it doesn’t constitute a sexual assault or sexual interference – if the man is sleeping, his actions are not voluntary. But back to the details: Gregory described feeling terrified, yet he kept finding himself inexplicably sleeping with David Henrige – not a word of protest from him. On one occasion he even claims to have been sleeping beside him while he is supposedly touching his penis while Cristina Coldwell is lying right there in the bed. A woman who has already had one child sexually molested is lying right there and David Henrige decides that that time and place is as good as any to molest one of her other sons. Wouldn’t you expect this to be secretive behaviour? Wouldn’t you expect to hear evidence of some attempts on David Henrige’s part to make sure that these men kept this thing a secret and no one found out? I suggest to you that this type of behaviour is highly improbable and offends one’s common sense. And again, there’s no mention of any bedroom incidents in Jason Pierce’s 1979-statement to the police.

Let’s talk about that 1979-statement. Jason Pierce admitted to making a statement to the police in 1979. He admitted that much of what he stated was not the truth. In fact he agreed with me that he lied to the police. But this wasn’t just a little white lie. It was a detailed and elaborate lie. He admitted that he made up an incident that never took place. Yet he was careful to include numerous details carefully crafted and designed to deceive even an experienced police officer. “David slipped his hand under my pyjamas and beneath my underwear.” – A lie. “I ran upstairs.” – A lie.
“He gave me a dirty look, like not to tell your mother.” – Yet another lie.

He refers to only one incident and makes no mention of a tickle-rub game; no mention of anything happening in the bedroom; no mention of anything happening in the pharmacy; no mention of anything happening to Gregory. How could all these omissions possibly have benefitted her back in 1979? The answer is that they couldn’t. He left them out because they never happened. He claims them now because he knew that he needed to beef up his story.

Of course, the Crown did also present the evidence of Lucas O’Connor. That was done to help you understand how these matters unfolded. Lucas O’Connor seemed to recall a particular walk with Jason Pierce and a conversation they had wherein Jason Pierce told him that David Henrige had molested him only and that ultimately lead to the first charge back in 1979. He recalls a conversation, while Jason testified that he wrote Lucas O’Connor a letter. We heard no testimony from Lucas O’Connor regarding any letter. I suggest to you that much of his memory has been affected by time. He couldn’t recall what time of year it was that this conversation took place – whether it was the beginning or ending of school. He claims that he was 11 years old at the time but that would’ve made Jason 10 at the time and we’ve heard that the allegations here didn’t surface until Jason was 11. He claimed to be in grade 4 at the time and therefore would’ve been in a split-class with Jason. When I suggested to him that that would only be true if he were in grade 4 at 11 years of age, he agreed. By school standards here, an 11-year old would normally be in grade 6 – not grade 4. If that’s true, then they wouldn’t have been in the same class. Lucas O’Connor also testified that he remembered Shaun, the older brother, as Don, up until this week when he came to testify in court. These are all factors that affect the reliability of his evidence.

Remember, though, he did also testify that Shaun revealed his own sexual assault to him, Lucas O’Connor. Also, he did admit in cross-examination to noticing that Shaun appeared to have better things than Jason and there appeared to be some favouritism by the mother towards Shaun.

So how long did all of this supposedly go on for? Jason Pierce testified that they lived at 123 Oxford for up to three years or maybe more; that it happened every weekend. He estimated it to be over 100 times. Gregory Coldwell testified that they lived at 123 Oxford for three years, perhaps more. He too testified that it happened every weekend. That would make the number of incidents well over 100.

David Henrige himself testified that he lived in 123 Oxford at most one year. He testified that he moved in during October of 1978 and he remembers that because he had an asthma attack then and was in the hospital and couldn’t help with the move – his boss had to help with the move. He testified that he moved out during October of 1979 on the advice of his lawyer, after the allegations arose. Now, at times, he did refer to his relationship with Cristina coldwell as a two-year relationship. But he did also testify that he wasn’t good with numbers and he justified calling it a two-year relationship because part of it was in 78 and part of it was in 79. In his mind that’s two years.

I suggest to you that Jason Pierce and Gregory Coldwell are wrong on this major point of living in the house for 3 years or more. David Henrige claims he didn’t even meet Cristina Coldwell until 1978, yet Jason Pierce and Gregory Coldwell claim the incidents started in 1977. Remember, Jason has previously inconsistently stated in his 1979 typed and signed statement to the police that he had been living at 123 Oxford for the last year. Why would he have misrepresented that? I suggest to you that he didn’t. Yet, curiously, both men now claim that they lived at 123 Oxford for three years. Both say 3 years despite Gregory Coldwell having testified that they didn’t discuss the details with each other. Is this just a coincidence? What are the odds that they would both independently remember living in a house for three years when, in fact, it was only one year that they lived there?

The more likely explanation is that they did discuss the details of their stories – that they did put their heads together before going to the police in order to get the story straight. Why didn’t they want you to know that they discussed the details with each other? Why did they keep this fact from you? The answer, I suggest, is that they wanted it to appear that they both independently remembered the details of what happened. What other explanation can there be?

Jason Pierce testified that sometime in 2001 or 2002, he brought the topic up with Gregory Coldwell; that Gregory didn’t remember immediately; that some 6 months later, Gregory recalled being molested by David Henrige. When pressed in cross-examination as to whether they had discussed the details, Jason Pierce finally admitted to discussing the couch incidents, but conveniently was uncertain as to whether they had discussed the bedroom incidents, or the pharmacy incidents or other such details. He stated that they discussed the matter on several occasions.

Gregory Coldwell testified that the first time he spoke to Jason Pierce about these occurrences was near the Christmas of 2001. He later changed that to closer to the Christmas of 2002 – maybe a month or so before they went to the police and gave those videotaped statements. For his part, he claimed to recall it all right away and vehemently denied ever discussing any of the details with his brother, Jason.

What other evidence tends to confirm that they did discuss the details? Both claim there was a ‘no underwear allowed at bed time’ rule made by David but neither can recall any conversation with David about the rule. Yet both claim it applied to only Jason and Gregory. When I pressed both on how they knew it applied to the other, neither could answer that question. I asked both of them, “How do you know it applied to the other if you cannot recall a conversation with David where the other was present?” The answer, I suggest, is that they discussed it with each other – but they wouldn’t tell you that. They wouldn’t admit to that in court.

Gregory claims nothing ever happened to him at the hardware store with David Henrige. He gave very little detail of the hardware store or anything happening there. Yet, he was sure to point out that he recalled seeing Jason go into that room in the basement with David Henrige. Nothing happened to him at the hardware store; he can’t recall much of anything about the hardware store; he claims he never discussed the details of the incidents with Jason; but he remembers that one point. How convenient is that? Why did he make it a point to mention that one specific fact? The answer, I suggest, is that he and Jason discussed ALL the details of ALL the allegations.

When pressed about his conversation with Jason in either 2001 or 2002, he couldn’t recall much detail. He couldn’t even recall when it occurred. Yet, he described having these memories come back and it was “shocking”. I suggest to you that if such a conversation had taken place, where Jason Pierce had brought it up and suddenly everything came back to Gregory Coldwell, it would be a moment he would not forget. One would expect all the details of such a conversation to be etched into one’s memory. Yet, Gregory Coldwell can’t even remember if it was 2001 or 2002 – we’re not talking ancient history here.

So, why don’t they want you to know that they did discuss the details? For Jason’s part, I suggest that he needs you all to believe that Gregory has an independent recollection of the events and that he remembered it all on his own – that Gregory Coldwell was there and that this did happen.

For Gregory’s part, he may, in fact, believe that he was molested by David Henrige. The only problem is that he has no independent recollection of it. And he doesn’t because it never happened with David Henrige. But he doesn’t want you to know that. He’s simply going on what he has been told over and over and over again. Either way, it’s collusion to make you believe it happened.

Think about the timing of the conversation. Both brothers say they’re close and have kept in touch throughout the years. Jason never claimed to have any memory lapse. So, why wasn’t the abuse discussed until 2002? I suggest to you that the triggering event for Jason Pierce was that argument he had with his mother in 2002.

Now, Ladies and Gentlemen, if you want to convict on this evidence, you have to – YOU HAVE TO: accept the evidence of an admitted liar; ignore all the internal inconsistencies; the contradictions; the improbabilities; and the vagaries. You have to look past all of that and say to yourselves that you are convinced based on this evidence to a point of moral certainty.

Let’s look at David Henrige’s evidence.

I suggest the truth is what David Henrige has told you in his own words under oath. Now, as I said before, an accused citizen is presumed to be innocent and the Crown must prove that he is guilty beyond a reasonable doubt from this starting point. This means that an accused person may sit silent throughout his trial and he is not obliged to offer any explanation whatsoever. Despite these rights, however, David Henrige chose to testify on his own behalf and tell you that what has been alleged against him is simply not true – he does not hide in weakness of Crown’s case.

I ask you to accept David Henrige’s evidence as a straightforward and sincere attempt to provide as many details as possible regarding his involvement with these people. By choosing to testify, David Henrige has exposed himself to the skillful cross-examination of a very capable prosecutor.

Now, in assessing his evidence, you may be thinking that David Henrige did not make a great witness. He is not articulate. He is not well spoken. He is a man with a grade 7 education. He is a career delivery man. I do not say these things to demean or belittle him. But please remember some of us are good speakers and present well, sometimes naturally and sometimes by training. I ask you to accept him for who he is – with his inarticulate manner and limited speaking skills – and assess him and his evidence in that light.

David Henrige has told you in no uncertain terms that he did not commit the acts that he has been accused of. He did not assault those boys on the couch; he did not assault those boys in the bedroom; he did not assault Jason Pierce in the hardware store; there was never a ‘no-underwear’ rule.

Now, the Crown may suggest to you that he is lying. But I ask you, if he is lying, then why admit at all that he was ever on the couch or in the hardware store with those boys? Because other than Jason Pierce and Gregory Coldwell, who has come forward to say that he was ever there? He denies the assaults ever occurred. He could’ve also denied being in those locations altogether, but he didn’t. He didn’t because I suggest to you that he’s telling the truth. After all, wouldn’t he be safer saying he was never on the couch or in the hardware store with the boys? Why risk putting himself there? The answer is because he cannot tailor his evidence; he cannot conveniently change it to make it sound better.

He denies ever sleeping in his bed with either Jason Pierce or Gregory Coldwell. Logically speaking, if he were doing what they are claiming he did in that bed, why wouldn’t he just go up to their rooms in the middle of the night?

David Henrige not only told you that he did not commit these crimes, he also told you that he would not engage in this type of behaviour. In fact, he pointed out specific instances, in similar situations, where he had been left alone with the care of children. Nothing untoward ever happened. Nothing untoward was ever alleged. By saying these things, David Henrige placed his own character into issue. You should know, Ladies and Gentlemen, that under our laws the Crown is not normally allowed to attack a man’s character. However, if an accused person raises his own character, then his character becomes fair game. By speaking of these other instances, David Henrige voluntarily opened up his character to attack. He did so because he has nothing to hide.

He testified about Carol Moucio – a woman and mother he knew at the time he lived at 123 Oxford Street. He looked after her children, Edward and Elizabeth Moucio, without the presence of other adults. Now, those children are aged 21 and 18 years, respectively. Carol Moucio and Edward both came forward and testified on behalf of David Henrige. They testified that he has a positive reputation for honesty, integrity, morality, and peaceable behaviour.

He testified about the Kasem family, whom he knew in the early ‘70s and lived two doors down from. He babysat their small kids from toddler to teen years. One of those children was Carl Kasem. Carl Kasem also came forward and testified about David Henrige’s positive reputation for honesty, integrity, morality, and peaceable behaviour.

In his current relationship, David is married to Sara, who is in body of the court. He has lived with her two children, Megan (now Megan Shore) and
Ryan since they were 11 years and 13 years respectively. Megan also came forward and testified on David’s behalf as to his positive reputation in the community for honesty, integrity, morality, and peaceable behaviour.

The evidence of these, witnesses, I suggest, is evidence that you can use to conclude that (a) David Henrige is not likely to have committed the crimes alleged against him and (b) that he is telling the truth.

Now, as judges of the facts you must decide whether the prosecution has proven David Henrige to be guilty of the offences of sexual assault and sexual interference beyond a reasonable doubt. His Honour will charge you on the law relating to sexual assault and sexual interference. In a case like this, it is tempting to ask yourself who’s version you prefer. His Honour will tell you that this is not the approach to take. Remember, the Crown must prove each element of offence beyond a reasonable doubt.

Now, obviously if you believe David Henrige, you must acquit. But even if you don’t believe David Henrige but his testimony raises a reasonable doubt, you must acquit. If you cannot decide who to believe you must acquit. If you believe that either both sides are worthy of belief or both sides are unworthy of belief again, you must acquit. In each of these cases guilt will not have been proven beyond a reasonable doubt, leaving you with one and only one verdict – ‘Not guilty’.

The last point I wish to raise with you is that each one of you is a judge. Each of you has a separate obligation. Before you can convict each one of you must, separately and individually, and all of you together, be convinced beyond a reasonable doubt to the point of moral certainty. It is your sworn duty to disagree with your fellow jurors if you, as an individual, cannot share that feeling of moral certainty – that feeling of total satisfaction that you must have before you can be a party to the conviction of this man who is accused of these crimes.

Again, please remember that not a word of what I have said constitutes evidence. What I have done, though, is provided you with a lens through which you can view the evidence that has been presented. I urge you to look through the lens and you will get a clear picture and there will be only one verdict you can come to: ‘Not guilty’.

Thank you.”

Click to read D.H.’s testimonial

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