A Nova Scotia Supreme Court judge has found a Britsh sailor not guilty of sexually assaulting a woman in an alleged gang rape on a military base.
Darren Smalley was accused of sexual assault causing bodily harm and participating in a sexual assault involving one or more people in connection with the incident, which is alleged to have occurred in the barracks at 12 Wing Shearwater on April 10, 2015.
Smalley is one of four sailors who were members of the British Royal Navy hockey team, which was in town for a military tournament in 2015.
He did not testify in his own defence. The woman testified that she went to sleep next to a sailor in a bed in the barracks, and when she woke up, naked and face down, she was being sexually assaulted.
Charges against two of the sailors were eventually dropped. Charges against a third were stayed in September because he was in hospital with a serious infection, but those charges can be reinstituted within one year.
Justice Patrick Duncan was expected to deliver his verdict on Thursday, but “court scheduling issues” prompted him to delay the matter to today.
Complainant’s account rejected
Duncan said he did not accept the woman’s testimony that she lost consciousness, or that she was fearful or panicked.
He also said the evidence does not explain how the men could have been positioned around the bed, as it was up against a wall and there was very little room around it.
He said he can’t accept the woman’s account of what happened, and that the charges have not been proven beyond a reasonable doubt.
“It is impossible to know where the truth begins or ends,” Duncan told the court.
The complainant was accompanied in the courtroom by a large group of supporters, at least one of whom was quietly sobbing as the judge read his verdict.
Judge reviews testimony
Duncan reviewed evidence and testimony in the case before delivering his verdict.
He said the complainant said she had significant gaps in her memory, which she attributed to losing consciousness. Neither the complainant nor her friend, who was with her for most of the night, had consumed enough alcohol or other substances to be significantly impaired, and there was no medical evidence about why she lost consciousness, the judge said.
The woman, her friend and two sailors went on a beer run just before midnight, and afterward, the woman’s friend left with a sailor to have sex. The woman said she panicked, pounded on doors in the barracks and called her friend’s name, but no witnesses corroborated that.
The woman said she found herself in a room with two sailors, crawled into bed with one of the accused, kissed him and then fell asleep. She testified that she lost consciousness and then briefly regained it multiple times, and recalled seeing a camera flash, hearing voices and feeling something warm and wet land on her back.
The judge said the woman testified she heard the voice of Simon Radford, the man whose case has been stayed, telling her to move over because she was taking up the whole bed.
The woman testified her friend arrived in the room, told everyone to get out and helped her get dressed before they left around 1:30 a.m.
The woman went to her doctor the next morning and then had a sexual assault examination done.
Duncan said the friend’s testimony about the woman’s demeanour wasn’t consistent with the complainant’s own testimony that she was panicked. The judge said he found the friend’s evidence more credible than the woman’s.
Two other women testified at the trial, saying there was a party in the barracks in which everyone seemed happy and comfortable. They said a girl was asking “who’s next” and that Smalley said he ejaculated on her buttocks. Duncan told the court the testimony of the two female witnesses appeared consistent and suggested the woman could have been awake and consenting to activity.
Two Royal Marines who were members of the hockey team testified there was noise coming from the room where the complainant was and they asked the occupants to be quiet, but were told by the complainant, “You’re just jealous because you’re not getting any.”
Duncan said this evidence shows the woman was awake and the fact that she didn’t mention the exchange affects her credibility.
The CBC’s Blair Rhodes is live blogging from court. Those on mobile devices can follow along here.