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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
R. v. Sampson, 2025 ONCJ 411
COURT FILE No. Toronto Region
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
LEE SAMPSON
Before Justice Michael Waby
Reasons for Judgment released on 28th July, 2025
Ms. Sengupta-Murray................................................................................................ for the Crown
Ms Gensey............................................................................................................... for the Accused
Waby M.
1Lee Sampson is charged with a single count of sexual Assault as against Y.S. The sexual assault is alleged to have happened on 2nd June, 2024. It is alleged that Ms S. met the Accused while she was on a night out with friends in Toronto. That she and Mr Sampson, who was previously unknown to her, encountered each other outside a night club, chatted and subsequently went together to Mr Sampson’s parked car where it is alleged non-consensual sexual intercourse subsequently occurred.
2Mr. Sampson pleaded not guilty.
Overview
3The case for the Crown is advanced through the testimony of the complainant Ms. S. and an Agreed Statement of Facts (ASF). Mr. Sampson testified in his defence and defence counsel Ms Gensey, also entered various video footage and a photograph as exhibit.
4It 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.
5The 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), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.) and other case law as follows.
6If I believe Mr. Sampson’s evidence, I must acquit him.
7Even 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.
8Finally, 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.
9Proof beyond a reasonable doubt goes hand-in-hand with the presumption of innocence which is a fundamental principal of our system of justice.
10The 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 and is logically derived from the evidence or the absence of evidence. R v Lifchus 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, 118 C.C.C. (3d) 1, at para 39
11I may accept some, all, or none of a witness’ evidence.
12To be clear, it is not sufficient that on the whole of the evidence that I am satisfied that Mr. Sampson 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.
13In 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).
14Put 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”: J.H.S., ibid at para 13.
15The 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
16The central issues in this case before me are those of reliability and credibility and the related issue of consent
Summary of Relevant Evidence
Viva voce Evidence
Evidence of Y.S.
17Ms. S.’s evidence can be summarised as follows. She and several friends rented an Air B n B in Toronto for a night out to celebrate her cousin’s birthday. Having consumed 10 shots of alcohol she and her friends left their rented apartment at approximately 10.30 p.m. and went to a club downtown on King Street by car. While at the Club Ms S. consumed further alcohol and spent time with her friends. She left the club at around 2 a.m. when it closed.
18Ms S. testified in Chief that while standing on the sidewalk outside the club on King Street she encountered the Accused who she says “grabbed her” and began chatting. He talked to her for several minutes. She described herself as being very intoxicated. She testified that she could not recall exactly how they started interacting and were getting to know each other and exchanging personal details.
19She gave evidence Mr. Sampson gave her his phone number she texted him her cell number from her phone. Her evidence was that the Accused offered to give her a ride home when her friends said that they were leaving and she decided to go with the Accused rather than her friends following his offer of a ride.
20When asked about her impressions of the Accused she sent he seemed fine and they were having a nice conversation but she described herself as being in a vulnerable state and being very intoxicated.
21She testified that she and the Accused walked together to the parking garage where his car was located. She estimated the walk to take about 5 minutes and that when they arrived at the parking garage they went through a door and she walked up some stairs to where the car was parked. She and the Accused got into his car and very shortly afterwards began making out by what she described as “lips to lips kissing”. She testified that this was consensual and she wanted to do this with the Accused. She also testified that very shortly after she got into the car with the Accused she received a phone call from her cousin who was checking up on her and she advised her cousin that she was fine.
22She described that she was sitting in the front passenger seat of the vehicle and the Accused was in the driver's seat. They kissed for some 2 to 3 minutes and she gave evidence that the Accused said he wanted to reposition his car to give them more privacy.
23Ms S. could not remember what her response was when the Accused suggested this and the Accused moved his car and parked it such that the windscreen was facing a wall in the car park. Ms S. testified that having done this they continued making out and although the Accused told her he wanted to go further she said no. She gave evidence that there wasn't a specific conversation about consent and that subsequently the Accused began to start kissing and sucking on her breasts and showed her a piercing on his penis. Ms S. testified that once the Accused had done his pants back up she climbed on top of him in the driver’s seat of the vehicle and straddled him. She gave evidence he was stimulating her with his penis and ‘teasing’ her. At some point she testified that she became uncomfortable and moved back to the front passenger seat.
24When asked by Crown counsel if she told the Accused what she did not want to do she testified that she told him she did not want to have intercourse, however, she agreed that she consented to him kissing her breasts and testified” if that's what it took to get me home for a drive I was fine with that as long as we didn't have sex. When asked how she communicated her consent to this she replied by not stopping it. She testified that she did not want to get on top of the Accused and sit on him whilst his penis was out of his pants but was willing to do so once he had pulled his pants up.
25She described the clothing that she was wearing as that night as a one-piece dress with no bra but underwear and testified that when she moved back to the front passenger seat she and the Accused continued to kiss consensually. After that the Accused reclined her seat and it was her evidence that the Accused asked to have intercourse and she said no.
26Ms S. gave evidence a conversation then took place about whether he had a condom she testified that occurred when the Accused was physically on top of her. She gave evidence that she kept gently pushing him on his chest a number of times and the Accused said to her “I'm not going to put it in” and “why are you pushing me”. She gave evidence but they continued with what she described as foreplay with the Accused face to face on top of her in the front passenger seat with her seat partially reclined and that the Accused the “humped her three times” and on the third time he put his penis inside her. She subsequently agreed that this was after the conversation they had had regarding use of a condom.
27Ms S. testified in Chief that she did not want to have intercourse but the Accused said he had a condom and he “kind of persuaded me to let him use it” and “in my head I thought it would be fine” She gave evidence that she had said no to intercourse several times and although they discussed the use of a condom she described feeling anxious and vulnerable at this time and so intoxicated that she was seeing double. However, she testified that that she could not remember her specific response to the Accused using a condom for intercourse.
28Her evidence was that at this point all she wanted to do was to go home as the Accused had promised to give her a ride. When asked by Crown counsel if she wanted to have sex with the Accused even if he was wearing a condom Ms S. testified that she did not.
29She gave evidence that she had pushed the Accused multiple times when he was on top of her but once his penis was inside her she “kind of froze”. It was her evidence that the intercourse lasted for approximately 3 to 5 minutes. She testified in Chief that she could not remember whether the Accused had used a condom but she knows she saw the packaging for a condom in the car. It was her evidence that she did not know how to react at the moment the intercourse was happening and that she was afraid of the Accused and what else he might do after intercourse had happened.
30After intercourse was over she testified that she was scared and wanted to change the subject so she asked the Accused about his cologne and shortly after this the Accused cousin called him on his cell phone asking where he was and when he was coming back.
31Ms S. testified that after this phone call she realized the Accused was never going to take her home but he had “just got what he wanted”. She and the Accused got out of the vehicle and walked back together to where they had first met on King Street. She testified that they walked back in silence and it took about 5 minutes to get back outside Ruby Soho.
32It was her evidence that her phone had totally died at some point whilst she was in the Accused’s car and that when she go back to King Street with the Accused she asked him to put the location of her Airbnb in his phone so she could see the directions and walk back there. It was her evidence she had no way of communicating with any of her friends as her phone was dead. She testified that she did not remain with the Accused on King Street outside Ruby Soho for more than two minutes as she was scared of him. She hugged him goodbye and went on her way to walk home and still felt very intoxicated.
33When asked how police became involved, Ms S. gave evidence that she became lost on her way back to her Airbnb and asked for help from two random strangers she met and that after she spoke to the second stranger about directions she saw two police cars and approached them and asked them to take her home.
34It was her evidence that when she was asked questions about her night by the officers she became emotional broke down in tears and couldn't talk for about 5 minutes she testified that she couldn't remember exactly what had happened as she had blacked out in her interaction with the officers but that the officers had “made me” tell them what had happened.
35After she disclosed the alleged sexual assault, she and the officers drove around King Street to see if they could locate Mr. Sampson. At some point she suggested that she get out of the police car to walk around to see if it would trigger her memory. She testified that while she was in the police car, officers charged her phone and she then texted her friends to tell them everything was fine because she planned to tell them what had happened later.. It was her evidence that when she got to King Street and was outside of the scout car she heard someone say words to the effect of “Yo, are you good” and when she turned she saw and recognized the Accused and his cousin who were with a third male she did not recognize.
36Ms S. described feeling scared when she saw the Accused and typed on her phone the message “That's him” and showed this to one of the officers. She gave evidence that she was also extremely tired at this point having been up for some 30 to 40 hours without sleep and she was also trying to sober up. She subsequently provided a statement to police at 14 division after the completion of a medical examination.
37In cross examination Ms S. agreed that it was possible that she had initiated the first contact with the Accused but she could not remember. When asked if she told the police that when she first saw the Accused they were both attracted to each other she testified that this was not the case. Ms S. also testified that she could not remember whether she had initiated physical contact with the Accused on first seeing him. Defence counsel showed a photograph in which the Accused was standing behind her with his arms wrapped around her and in which they were both smiling. Ms S. agreed photo showed her and the Accused but couldn't remember how the photo came about but it was her evidence she would never ask for such a photo to be taken.
38In cross examination she agreed that that their initial conversation was light -hearted and she and the Accused were friendly but she denied the suggestion that she had asked the Accused and his cousin to come back to her Airbnb and party with her. She testified that the Accused stopped her when she was going to leave with her friends and said he would drive her home it was her evidence that “I trusted his words.”
39In cross examination she denied asking the Accused whether he had any weed on him and testified that she did not ask to go back to his car with him to smoke some weed. She gave evidence did not does not smoke weed. However, when asked again by defence counsel whether it is possible that this did in fact happen, Ms S. testified “ it may have but I can't recall.”
40When asked if she had any difficulty walking to the Accused car from King Street Ms S. gave evidence “ I can't remember because I was intoxicated.” She agreed that she and the Accused were talking and the mood was friendly on their walk to the garage. She accepted the relevant video footage recorded by the Accused on his phone and entered as an exhibit accurately captured her and the Accused walking together on the way to the garage.
41When defence counsel put a section of her police statement to her that she had given she agreed that she had told the police that “they were each giving a look, the kind of look you give when you're both into each other.” Miss S. also agreed that she had told the police she was physically attracted to the Accused she also agreed that she had told the police that she had spaced out the ten shots of alcohol she had drunk at the Airbnb over the course of two to three hours rather than drinking them in quick succession before she left the Airbnb that night as she had earlier testified. Ms S. denied the defence suggestion that she was attempting to exaggerate her level of intoxication on the night of the alleged incident.
42Her evidence that she was confident that she and the Accused had to walk upstairs to get to his car but agreed but a section of video footage recorded by the Accused appeared to show her walking downstairs in the underground car park with the Accused filming it. When it was put to her that she appeared to have no obvious difficulty maintaining her balance or walking she testified that while that may appear to be the case she was holding a handrail of the staircase. She testified she could not remember if it was the staircase she used to get to the Accused’s car.
43Ms S. accepted in cross examination that the Accused may have pulled out a small bag of weed when they got into the car but she can't remember. She did however deny taking any weed from the Accused and placing it in her cleavage for later consumption. She accepted she may have spoken to the Accused about his cologne and it's pleasant smell before any sexual activity occurred although she could not remember.
44Ms S. agreed in cross examination that she had previously told the police in her statement that she “at least” wanted to make out with the Accused but rejected the defence suggestion that “at least” meant that she was open to further activity occurring because she “had boundaries like everyone else. She accepted however that further consensual activity had occurred beyond kissing that included the Accused kissing and sucking on her breasts and her straddling him.
45In cross examination Ms S. testified that although she consented to the foreplay and the kissing and sucking on her breasts this was at the point just before the Accused crossed her boundaries. She gave evidence she told him “I'm celibate” and did not want sex. In cross examination Ms S. agreed that intercourse was a very firm line she would not cross. She testified that she could not now remember who whose idea it was to move the car when they were making out.
46When asked in cross examination whether she moved her positioning at one point because the steering wheel was in her back and that was making her uncomfortable she gave evidence she did not think it was for that reason but because the Accused was trying to touch her. Ms S. testified that she couldn't remember if the Accused reclined her seat or not and when defence counsel asked whether she had performed oral sex on the Accused Ms S. testified “ that's false, I don't have a recollection of that.” She also rejected the defence suggestion that when she was engaged in foreplay with the Accused she had asked him if he had a condom.
47When defence counsel put it to Ms S. that full intercourse with Mr Sampson was something she would not consider Ms S. testified agreed. However she agreed with defence counsel's suggestion that she had told the police that if the Accused wore a condom she might be willing to have sex with him. Her evidence was “yes I told that to the police, what else was I going to do?” When it was suggested to her by defence counsel but this was inconsistent with her repeatedly saying that she would not consent to sex under any circumstances Ms S. testified that that she agreed but that she only did so because the Accused kept pressuring her. When asked if she had told the Accused that she would consider having sex if he had a condom Ms S. testified “ I can't remember saying that.”
48In cross examination Ms S. agreed that she had seen a condom wrapper and agreed with defence counsel that she the Accused may have put the condom but she was lying down and could not see. However, she subsequently testified that she accepted it was possible the Accused had worn a condom when they had intercourse although she did not know what about the Accused ejaculated or not.
49Ms S. described herself as still being very tipsy. It was her evidence that she had her underwear on throughout the entirety of the intercourse. She could not recall whether the Accused had given her any Kleenex to clean up with after intercourse but Ms S. repeated that the Mr Sampson had put his penis inside her against her wishes.
50Ms S. agreed in cross examination that a piece of video footage showed her and the Accused both walking back from the garage where they opposed both appeared to be smiling, she was making a peace sign to the camera and apparently dancing to some music that was playing on the street. She testified that although she appeared to be using her cell phone while walking back from the parking garage she did not have any recollection of that happening because she was so drunk.
51When a further section of her video statement to the police was put to her by defence counsel she accepted that she had told the police “if he wore a condom I might let him do it.” She testified that that meant she only said she might have let him do it not that she would although Ms S. disagreed that this conversation with the Accused occurred before he was on top of her. It was her evidence that this only occurred when the Accused was on top of her attempting to put his penis inside and that he pressured her into allowing it to happen.
52When defence counsel put to her that the video segments of her and the Accused did not appear to show any mobility issues or obvious signs of intoxication on her part she replied “one video doesn't prove what my walking was like and that's only what you see.” She accepted in further cross examination that she could not remember whether she had provided the Accused with her number and details when they first met or after they had returned from the car park and she agreed that the Accused had offered to walk her back to her Airbnb after they left his car.
53When it was suggested to her that her phone was not dead upon their return to King Street but it was simply a lack of data on her phone she testified “that's false, I mean it was both , I didn't have data but my phone was also dead.” Ms S. agreed that she hugged the Accused goodbye and that they went their separate ways and she accepted there was a gap of some 90 minutes to 2 hours before she met the Accused again with the police.
54When it was put to her that the video footage of her and the Accused returning from the car showed her smiling and laughing Ms S. testified that this was only a result of the alcohol she'd consumed at the Airbnb, as well as whisky she said she had also consumed in the club. When defence counsel asked whether she was able to interact with her friends at the bar Ms S. testified “I didn't say I could carry on a conversation, I was all over the place” and she again denied exaggerating her levels of intoxication.
Ms S. denied the suggestion put to her by defence counsel that all the active all the sexual activity she engaged in with Mr. Samson was consensual.
Evidence of Lee Sampson
55Mr. Sampsons evidence can be summarized thus. While it contains a number of similarities with the evidence of Ms S. it also contains some very fundamental differences.
56Mr. Sampson testified that he and his cousin had arranged to go out for the night on the date in question the Accused drove them in his car and parked underground at a garage located at King Street and Portland street in Toronto. By this time they had planned to go to a club on King Street but the lineup was so long they changed their minds and tried to get into an establishment called Ruby soho.
57He testified that whilst he was standing on King Street waiting to gain entry to Ruby soho he felt someone pulling on his dreadlocks from behind him and heard a female voice say words to the effect of “Oh my God your hair is so long” and when he turned around he saw it was Ms S. . He gave evidence that they chatted for a few minutes about their plans, she talked about his hair and was hugging and caressing him and taking pictures of them both. Mr Sampson testified that at her request he gave his phone number to her and his cousin took a picture of them outside Ruby Soho at Ms S.’s request and identified this as Exhibit 1.
58It was Mr Sampson’s evidence that up to this point in the evening he had not been drinking or taken any drugs and for him and his cousin the night had just started and they had only just arrived at King Street. He testified that whilst he was talking with Ms S., she asked him for any weed. He told her he didn't walk around with cannabis but he had some in his car and he offered to give her some.
59After this conversation they left to walk to his car to get the weed. When asked how Ms S. seemed Mr. Sampson replied she seemed fine and normal and that she did not seem obviously intoxicated. He testified that whilst they were walking to his car they were “doing videos” and when they arrived at the garage they walked downstairs to his car. He estimated the walk to be about approximately 2 minutes and whilst they were walking there Ms S. invited him and his cousin to come over to his Airbnb to party with them but he declined.
60It was his evidence that when they got to his car he opened the door for her and she got into the front passenger seat he got into the driver's seat. He located a bag of weed and gave Ms S. a few buds which he wrapped in a Kleenex and which she put in her cleavage. When shown the video of Ms S. wearing the same clothes as shown in the other video footage walking down a set of concrete stairs Mr. Sampson identified this as the staircase they took on the walk to his car in the parking garage on the night of the alleged incident.
61It was his evidence that although he looked for some rolling papers in his car he was unable to locate any and so he and Ms S. were unable to smoke any weed. After he had given her the cannabis buds Mr Sampson gave evidence she commented on his cologne and sprayed some of it on herself when he showed her the bottle.
62He testified that they were talking normally and then began to make out passionately kissing in their seats and touching each other intimately. He testified that she then unbuckled his pants and performed oral sex on him from her seat as she leant over the console. He estimated they were in the car for some 4-5 minutes before things turned physical. It was his evidence that after she had performed oral sex she “hopped over” the console then began riding on his private area and kissing him while telling him how good he smelled.
63Mr Sampson testified that he kissed her breasts and body and the while doing this she looked out of the car window and saw another vehicle and became paranoid and said “what if someone sees us, you have to move the car.” Mr. Sampson repositioned the car so that the windscreen faced a wall of the garage and that while he did this Ms S. returned to the passenger seat. After this, they resumed kissing and he testified that she asked him if he had a condom. It was his evidence he told her he did not know if he had one but subsequently located one. He gave evidence Ms S. appeared to have difficulty reclining her seat so he helped her and as he did so she removed her underwear and placed it on the dashboard.
64Mr Sampson gave evidence that during the course of Ms S. straddling him she had moved back to her side of the car because she said the steering wheel was uncomfortable in her back. He testified that when she removed her underwear Ms S. told him she hadn't had sex for some time and had been celibate after a rocky breakup. This is when he said she asked him if he had a condom. Mr Sampson gave evidence Ms S. said to him “the only way you get to put it in is with a condom.”
65He testified that she watched him put the condom on and she put her hand on his penis to make sure the condom was on. He testified that his pants were only partially down and his penis was exposed following oral sex and Ms S. remained clothed apart from her white underwear she had placed on his dash.
66Mr. Sampson testified he climbed on top of Ms S. had consensual intercourse that lasted 2 or 3 minutes and it ended when he ejaculated. It was his evidence he offered her some napkins to clean up and she did so and testified that they walked upstairs from his car where he disposed of the napkins in a bin
67When asked by defence counsel how Ms S. seemed after intercourse, he testified that she was good, that they chatted in the car for a short while afterwards and then walked back to Ruby Soho. He identified him and Ms S. form the video exhibit in which she is dancing and smiling and making a peace sign to the camera. When asked weather Ms S. had indicated at any point that she did not want sex Mr. Sampson denied that this was the case and testified “no I would have stopped if she had. I'm not a forceful guy. I have a daughter and a sister. No means no stop means stop.”
68He denied at any point that Ms S. had tried to push him off her or that at any point she had indicated she was uncomfortable with any of the sexual activity that was occurring. When asked whether Ms S. appeared intoxicated to him at any point Mr. Sampson testified that was not the case and that to him her words and speech were clear she was not stumbling she was not being physically sick and said that had she appeared to be like that there is no way he would have let her into his car.
69He also testified that that she did not appear intoxicated on their way back from car park. Mr. Sampson testified that on the way back he believes Ms S. tried to call her cousin using her phone as he saw her phone light up although he accepted he did not know who she was calling. He testified that whilst they were walking back to Ruby Soho she asked him for his number and messaged him her details from her phone.
70He also testified when they got back to Ruby Soho she asked Mr. Sampson's cousin if he knew where her friends were and complained about not having any data on her phone and Mr. Sampson offered to let her use his phone and she put her address in and accessed his Google Maps for directions
71Mr. Sampson testified that they did not have any conversation about him ever offering a lift back to her address. He testified that once again Ms S. asked him to return to the Airbnb with her but he did not want to. It was his evidence that after she had the directions from his phone she hugged him and kissed him and said “text me” and he told her to “walk home safe”.
72The next relevant encounter happened some time later when Mr. Sampson saw two police scout cars and Ms S. on King Street. He gave evidence that he was worried about what was going on and whether something had happened to her and he crossed the road and asked her if she was all right and if she was lost. It was his uncontradicted evidence that whilst he was speaking with Ms S. in the company of the officers she was giggling and laughing with him he testified that he offered to call her an Uber. Shortly after this one of the officers ask him if he knew Ms S. and Mr. Sampson told the officer he did and that she was with him a few hours ago. Subsequent to this Mr. Sampson was arrested shortly afterwards for sexual assault.
73In cross examination Mr Sampson testified that he could not recall whether Ms S. was wearing a bra and testified and that that she had no difficulty reaching over from her seat once they were in the car too for oral sex. He rejected the crowns suggestion that Ms S. had only gone with him because he had offered to give her a ride. It was his evidence they never discussed him providing a ride for her.
74Mr. Sampson testified that he and Ms S. never had a conversation in which she said she was not interested in intercourse but she had told him she'd been celibate for a while. He repeated his evidence that after oral sex she had said to them “the only way we have sex is if you have a condom. I usually don't do stuff like this
75Mr. Sampson rejected the Crown's suggestion that Ms S. kept trying to push his hands away from her and rejected the Crown's suggestion that she did not perform oral sex on him and he rejected the suggestion that the only time the use of a condom was raised was when he was already on top of her. He similarly rejected the suggestion but the only reason the condom was discussed was because he was pressuring with Ms S. into sex.
76It was his evidence he put the condom on did not force her in any way to have intercourse and Mr. Sampson also denied the Crowns suggestion that Ms S. had seemed tense at any point during or after intercourse.
77Mr Sampson testified that it was about two hours since he had last seen Ms S. when he next saw her with the police officers on King Street
Law and Analysis
78There is not an issue in this case that sexual intercourse took place between Ms S. and Mr. Sampson on the date of the alleged incident. Forensic testing as well as the evidence before me supports this fact.
79As previously indicated the central issues in this case are those all credibility and reliability particularly as they relate to issues of consent with respect to the sexual intercourse that occurred.
80While the central allegation is keenly contested there is inevitably some overlap in the versions of events provided. Ms Sengupta-Murray for the Crown fairly acknowledges that the Accused was not meaningfully undermined during the course of his cross examination and was consistent in the evidence that he provided.
81Both Crown and Defence counsel rightly acknowledge that there are also no standard responses on the part of the victim’s of sexual assault to their experience and that the behaviour of sexual assault victims can vary considerably dependent upon a wide variety of factors relevant to both the individual and the circumstances of the particular incident. The court has rightly long since rejected any of the discredited tropes that surround such outmoded thinking.
82Ms Gensey submits that there are significant issues of credibility and reliability with the evidence of Ms S. and inconsistencies in the evidence she has provided. It is the submission of defence counsel that while the evidence of Mr Sampson should be believed , at the very least his should raise a reasonable doubt in the mind of the court.
83I accept that Mr Sampson presented as a credible and reliable witness and was not undermined in his core version of events. He was forthright and candid and consistent. His evidence is bolstered by the 3 separate pieces of video footage that were entered as exhibits in which he is seen walking with Ms S. to and from his car and in which she is filmed walking down the stairs at what I am satisfied is the parking garage where the alleged incident occurred.
84It is to Ms S.’s credit that she allowed for a considerable number of alternate possibilities in the course of her evidence and also conceded that there were issues of significance that she accepted she was unable to recall. Although at times in cross examination Ms S. appeared to be less forthcoming and occasionally combative. It is perhaps fair to describe her evidence at times , in the words of Ms Sengupta-Murray as “cautious” although at other times this may be a rather charitable description. Nevertheless, the Court must acknowledge that complainant’s in cases of sexual assault often, unsurprisingly, do not find it an easy experience.
85It is also trite to state that consent by any person to one form of sexual activity does not equate in to consent to other forms of sexual activity. Simply because Ms S. accepts that she consented to a range of other sexual activity does not lead to the conclusion that she willingly engaged in sexual intercourse with Mr Sampson.
86Nevertheless, the evidence given Ms S. presents a number of significant inconsistencies as well as raising issues that I find, inevitably, impact upon my overall assessment of her credibility.
87It is clear that Ms S. consistently portrayed herself as significantly intoxicated throughout the entirety of the evening and events leading up to and beyond the alleged sexual assault. He evidence o the quantity of what she drank and over what time frame differed significantly in her evidence as well as in what she reported to the police. I accept that alcohol may impact people, or the same person, in different ways subject to a number of variables. Nevertheless, Ms S. describes drinking a prodigious amount of hard alcohol over a short period of time and supplementing this in the club she was in with friends. She describes herself as severely intoxicated and seeing double.
88The video footage of her going to and from the car park is unarguably at variance with this evidence. The footage of her and Mr Sampson walking to and from the garage shows Ms S. walking briskly and without any apparent difficulty while simultaneously smiling and laughing at the camera, navigating kerbs and street furniture, making controlled motions with her hands and dancing along with music laying on the street. There is no discernable impact on her motor skills and demeanour that is consistent with the level of intoxication she describes,
89I also do not find that she relied to any meaningful or observable extent on the handrail I the garage for support as she descended that staircase. I do find that this creates the spectre of Ms S. significantly exaggerated the extent of her intoxication and this inevitably impacts her credibility.
90I also find the footage undermines Ms S.’s evidence that she was afraid of the Accused on their way back from his car. The footage belies her evidence that they returned in silence and without engaging. That is plainly not the case. It is also apparent that Ms S. presents in the relevant video footage afterwards as smiling and relaxed and in the same manner as the is shown when travelling to the Accused’ car. The lack of credibility around her being fearful is reinforced by the uncontradicted evidence that she was smiling and friendly with the Accused when she later encounters him in the presence of the Accused.
91In all observable regards Ms S.’s demeanour is at variance with the level of intoxication and fear that she described. This aligns with the evidence of Mr Sampson. I reject her evidence that at any observable point in the evening she was afraid of or intimidated by Mr Sampson and this inevitably impacts her credibility with respect to her evidence of feeling this way in the car with Mr Sampson.
92I allow for reasonable and inconsequential inconsistences in a witnesses evidence. However, it is also apparent that Ms S. was inconsistent on her evidence of whether there was any credible boundary communicated to Mr Sampson with respect to intercourse. Her evidence in chief and cross examination was inconsistent on this point and also contrasted with the evidence she gave to police in her statement. Clearly discussions about the possibility of intercourse had taken place between Ms S. and Mr Sampson with Ms S. stipulating that the must wear a condom if this was to occur. I find Mr Sampson did wear a condom as he testified and Ms S. herself subsequently allowed this may have happened. I cannot accept the portions of her evidence where she testified this was not the case.
93The video footage as well as Ms S.’s own evidence also demonstrates inconsistencies as to whether , when and how her phone ceased to function as well as who first initiated contact between her and the Accused and how, whether she had discussed marijuana with Mr Sampson and her equivocal answer with respect to whether she had given him oral sex, in which she testified “ I have no recollection of that.”
94I also find that Mr Sampson’s evidence is further bolstered by his behaviour upon seeing Ms S. return to the scene in the company of police officers. While it is seldom appropriate to generalise any pattern of behaviour from a given set of facts, on the facts of this particular case I find Mr Sampson’s actions as described and not contradicted support his evidence that he acted in a manner consistent with someone who believed all the sexual activity that occurred between him and Ms S. was consensual and that he had no reason to believe otherwise and that he approached Ms S. out of concern for her and not in a contrived act of self-preservation.
95The burden of proof in a criminal case is necessarily a high one. As I have previously indicated I am mindful that a criminal trial is not a credibility contest. Nevertheless, following my consideration of the totality of the evidence and absence of evidence in this case, for the foregoing reasons I find that the evidence of Mr Sampson raises a reasonable doubt as to his guilt. As a consequence of this the Crown has not established his guilt beyond a reasonable doubt and I find Mr Sampson not guilty of sexual assault.
Released: 28th July, 2025 ____________________________
Justice Michael Waby