Crown appeal from acquittal on three sexual assault charges (different complainants). Trial judge declined to apply cross-count similar fact evidence. All three cases involved complainants who met the accused through a job application, and ultimately engaged in sexual acts with him after consuming alcohol.
Held: Appeal dismissed.
Trial judge found the complainant’s evidence to be unreliable. “The central issue at trial was consent or absence of consent. There are many ways that the Crown could prove absence of consent, but conceptually it is difficult to see how similar fact evidence can be used to prove a state of mind like the absence of consent. What is happening in the mind of one complainant is not evidence of what is happening in the mind of any other. It is noteworthy that the Crown is unable to cite a case where similar fact evidence has been used to prove absence of consent.”
P. Royal – Defence Counsel