The Crown appealed, with leave, a summary conviction appeal judge's decision that set aside a sexual assault conviction and ordered a new trial.
The complainant testified to waking up unconscious during sexual activity with the respondent.
The trial judge found the complainant unable to and did not consent, concluding she was unconscious.
The summary conviction appeal judge (SCAJ) criticized the trial judge's reasons for insufficiency, particularly regarding the timing of unconsciousness, prior consent, and the handling of expert toxicological evidence and post-offence conduct.
The Court of Appeal found the SCAJ unduly critical, reiterating that trial judges are not required to detail every piece of evidence and that expert evidence, while not definitive, supported the complainant's account.
The Court of Appeal rejected the SCAJ's suggestion of drawing an adverse inference against the Crown for perceived deficiencies in expert evidence presentation, deeming it unprecedented.
It also found the trial judge's use of post-offence conduct, though equivocal, was not fatal in a judge-alone trial.
Applying the principle that an unconscious person cannot consent, the Court of Appeal concluded the trial judge was entitled to find an absence of consent.
