COURT FILE NO.: CR-09-3878

DATE: 2012 03 19

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

C. Lynch, for the Crown

• and -

AGILIGA AKPU

E. Brown, for the Accused

HEARD: January 26 – 30, 2012

REASONS FOR JUDGMENT

K.M. van RENSBURG J.

Introduction

[1] Agiliga Akpu is charged with one count of sexual assault. It is alleged that Mr. Akpu sexually assaulted S.B. on July 20, 2008 in the home of his friend Henry Osunde. The allegation is of forced intercourse and digital penetration.

[2] The following facts are not in dispute:

1. The evening of July 19, 2008 Mr. Akpu went to a club in Mississauga, Sugar Daddy’s, with his friend Mr. Osunde. In the course of the evening, Mr. Osunde ran into his friend S.B.. There was little or no interaction between Ms S.B. and Mr. Akpu. Ms S.B. left the club before the two men. While the men were driving home, Mr. Osunde received a call on his cell phone from Ms S.B., a result of which he picked her up at her home, and took her to Mr. Akpu’s place.

2. Mr. Osunde and Ms S.B. were in the bedroom, intending to have sexual intercourse; in fact Mr. Osunde put on a condom, however no intercourse took place. Mr. Osunde left the house, to assist some friends who had been pulled over by the police, and Ms S.B. expected him to return later.

3. When Mr. Osunde did not return, Ms S.B. roused Mr. Akpu from where he was sleeping on the couch in the living room. There was a dispute between the two of them, following which Ms S.B. left Mr. Akpu’s home in the rain in a distressed state, and walked home.

[3] I will address the evidence of the trial witnesses in greater detail in these reasons. By way of overview of the two conflicting accounts, Ms S.B. asserts that Mr. Akpu attempted to have sexual intercourse with her, penetrating her vagina with his penis, and then, as she was trying to escape his apartment, he digitally penetrated her.

[4] Mr. Akpu denies any sexual contact at all with Ms S.B.. He asserts that he awoke to find water all over the floor of the apartment, and out of concern that his girlfriend might come home and find Ms S.B. there, he argued with her and pushed her as he forced her to leave.

[5] In this case there was some physical evidence. When Ms. S.B. went to the hospital and spoke with the police, it was observed that she was missing two artificial fingernails. There was damage to the bathroom door and doorframe that was not present before Ms S.B. was at the apartment. A condom was found in the bathroom waste basket, with Ms S.B.’s blood on it, and Mr. Akpu’s DNA. Mr. Akpu had an injured lip and a cut on his forehead.

[6] Mr. Akpu contends that all of the physical evidence is consistent with the account he provided of the conflict between the two of them, and that there are other reasonable explanations for the presence of his DNA on the condom.

[7] The Crown evidence consisted of the testimony of Ms S.B., the evidence of four witnesses who were at the relevant time Peel Regional Police officers, a nurse from Trillium Hospital, and an expert witness. Three reports from the Centre for Forensic Science (“CFS”) were filed. With the consent of defence counsel, forensic biologist Lee Hulse-Smith testified and presented all three reports, including one authored by Trevor Claxton, who was unavailable for trial. Mr. Hulse-Smith had reviewed the underlying data and confirmed that he shared the opinion of Mr. Claxton in respect of the matters contained in Mr. Claxton’s report.

[8] Mr. Akpu and Mr. Osunde testified for the defence.

Crown Evidence

A. Evidence of the Police Officers

[9] I will briefly summarize the evidence of the police officers. Their testimony was directed to a certain extent to the continuity of certain exhibits, which ultimately was not seriously challenged by the defence.

[10] The first Crown witness was Constable Laura Barnhart. She was the Peel Regional police officer in charge of this case, and has been a police officer for 21 years. She interviewed the complainant on July 20at Chantel’s Place. She observed that Ms S.B. was missing two artificial fingernails on one of her hands. She believed from what she said that Ms S.B. had been drinking the previous evening, but she was not apparently under the influence of alcohol when she was interviewed. Constable Barnhart received physical evidence in the form of a sexual assault kit from the nurse, as well as the complainant’s bagged clothing. She described the chain of custody for these items.

[11] Constable Barnhart conducted a second interview of the complainant on August 27, 2008. At the first interview she had appeared tired and a little confused, and she took time to process what she wanted to say. On August 27 she was more alert.

[12] Constable Barnhart contacted Mr. Akpu on August 28, 2008, and asked him to come to the police station. On March 26, 2009 she met with him for a consent buccal swab, which was taken by another officer. She described the chain of custody for the swab.

[13] The second Crown witness was Constable Jane Solomon. She is a former Peel Regional Police officer who retired in August 2011 after 23 years on the force. Ms Solomon participated in a search of the accused’s home at […] Court, Brampton on July 20, 2008 with four other officers. The accused told her that he went to Sugar Daddy’s with Henry, got drunk and Henry drove them back to his house. They picked up a female that Henry knew. The officer noticed an injury to Mr. Akpu’s upper lip, and swelling from a small cut on his forehead. He said a scratch on his left earlobe occurred during an argument with his girlfriend.

[14] At Ms Solomon’s request, Mr. Akpu attended at 22 Division to provide a formal statement. On the way to the station she asked Mr. Akpu to point out where Henry lived and he did so. After preparing the interview room, she conducted the first interview of Mr. Akpu, which was captured on the video recording which was played at trial. Voluntariness was conceded. A video recording of the interview was played at trial.

[15] Mr. Akpu was interviewed for a second time on August 28, 2008. The video recording of this interview was played on the consent of the defence without the necessity of calling a witness as the officer who had conducted the interview was not available to be called at the time the recording was played.

[16] The third Crown witness was Constable Lillian Fitzpatrick. She has been with Peel Regional Police for almost 22 years and is a forensic identification officer. She testified about the receipt and continuity of certain exhibits. She received a sexual assault kit and clothing, and she explained how she had secured and stored each item.

[17] Constable Fitzpatrick participated in the execution of the search warrant at Mr. Akpu’s residence. She identified a number of photographs she had taken. In the course of the search she seized a green used condom that she identified as having come from inside a toilet paper roll in the bathroom waste basket. The photos included a photo of the waste basket, containing the toilet paper roll and some other tissues. The condom was set aside and secured in a fridge in the Forensic Identification Office. Constable Fitzpatrick also identified other photographs, including a photo of the plumbing pipes under the bathroom sink showing water droplets dripping down. The pipe underneath had been disconnected, and water was flowing back into the cabinet and onto the floor.

[18] Constable Fitzpatrick seized the bedroom sheets, but they were not sent for testing. She identified photos of the bedroom, and the entrances into each of the bedroom and bathroom from the hall. She identified a dresser with the first drawer open in which were located a wallet with Mr. Akpu’s driver’s license and health cards. The only items she seized were the condom and bed sheets.

[19] After receiving the sexual assault kit, Constable Fitzpatrick removed certain items, submitting them to CFS. She described how she inventoried the contents and secured and sealed each item. She described the process for tracking and transferring the items to CFS. On March 30 she received a consent buccal swab from Constable Mackenzie, and submitted this to CFS for DNA analysis on April 26. A few days after August 19, she submitted to CFS for analysis the breast swabs and soiled sanitary napkin from the sexual assault kit, and red underwear from the bags containing Ms S.B.’s clothing. Under cross-examination, Constable Fitzpatrick described how she had received and handled the exhibits, in particular the contents of the sexual assault kit and the condom.

[20] Constable Fitzpatrick described where the condom was located when she seized it, by reference to the photographs she took. The toilet roll with the condom inside was seized, together with a portion of the foil packaging for the condom. Nothing else was seized from the waste basket. Only one condom was seized, and she did not see another condom there. The only other items in the bin were Kleenex, a toilet paper roll and some type of packaging that could hold a sanitary napkin. The condom and toilet roll were packaged and sent to CFS.

[21] Constable Fitzpatrick described how she handled the buccal swab before submitting it to CFS. Some contents of the sexual assault kit were not sent to CFS, including oral swabs and smear, rectal swabs and smear, genital swabs, fingernail scrapings and combing of head hair.

[22] The next Crown witness was Constable Michael Mackenzie. He has been with Peel Regional Police since February 2000. On July 20, 2008 he participated in the execution of the search warrant. He recalled seeing damage to a bathroom door and that the pipe under the bathroom sink had been broken. There was also damage to a lock on the bedroom door. On March 30, 2009, at the request of Constable Barnhart, he transported a consent buccal swab to Constable Fitzpatrick.

[23] Constable Lauryssen was unavailable to testify however the evidence she would have given respecting the receipt and transfer of the sexual assault kit and a sealed bag containing Ms S.B.’s clothing to constable Fitzpatrick was admitted on consent.

B. Evidence of the Sexual Assault Nurse-Examiner

[24] Laura Dehooge is a registered nurse who was a sexual assault nurse-examiner at Trillium Hospital, having been employed for nine years in that position. She described what happened when she met with S.B. at 9:00 a.m. on July 20, 2008 and the examination she conducted and how samples and swabs were taken and secured.

[25] Ms Dehooge checked for injuries or bruises. She seized clothing items, with each item put in a brown paper bag and sealed with a label and kit number. She also collected a sanitary napkin. Ms S.B. reported vaginal bleeding after the assault. Ms Dehooge observed that the bleeding was coming from the cervix, but could not say whether it was menstrual blood. The swabs were taken and the kit handed over to the police at 12:50. The left breast was swabbed, because of the history provided. She could not recall how the sanitary napkin was collected.

C. DNA Evidence

[26] Lee Hulse-Smith, a forensic biologist employer at the CFS, was qualified as an expert on the examination of forensic items, with respect to the presence of body fluids, the interpretation of results and DNA profiles and report-writing. Mr. Hulse-Smith prepared two reports and he had reviewed the report prepared by his colleague Trevor Claxton and the underlying raw data. He confirmed that it was the same report he would have written. The three reports dated October 30, 2008, June 2, 2009 and November 3, 2010 were entered as exhibits at trial.

[27] Mr. Hulse-Smith described the receipt, storage, tracking and processing of the items received from the police. He described the procedures followed in order to prevent cross-contamination between samples.

[28] The vaginal swab and smear were examined and no semen was detected. A vaginal swab tested positive for blood. No further testing was done on these items.

[29] Mr. Hulse-Smith’s evidence with respect to the results of examination of and testing of the condom were as follows:

1. He examined a green coloured condom with a wrapper. He did not recall seeing a toilet roll with the condom. When he refers to the inside and the outside of the condom, he is talking about the state of the condom when he examined it.

2. The inside and outside of the condom were swabbed. No fluid was visible inside the condom, but a swab of the inside found a moderate amount of dark red staining that provided a large amount of DNA. The red brown staining was analyzed. From the inside of the condom a female DNA profile was found, with a one in 12 billion probability of co-incidence with someone other than Ms S.B.. No fluid was noticed typical of ejaculation. The amount of male DNA was very, very low. There was more blood in the condom than semen. The second swab provided a male DNA profile from semen suitable for comparison. The male DNA profile developed from the semen from inside the condom was compared to the buccal swab. There was a one in 3.5 trillion probability of co-incidence with someone other than the accused, based on data from a sample of the Ontario population.

3. The swab of the outside of the condom provided inconclusive results.

[30] Under cross-examination Mr. Hulse-Smith was asked whether it was possible a secondary transfer of Ms S.B.’s blood could have occurred if her menstrual blood found its way onto the bed sheets and Mr. Akpu wore a condom in bed. He responded that the condom would have had to have come into contact with wet blood. The amount of female DNA inside the condom was consistent with wet blood. One would expect to see red-brown staining on the sheets if the transfer had occurred from the bed sheets. The sheets were not tested.

[31] Mr. Hulse-Smith was asked about the possibility of a secondary transfer of blood, from Ms S.B. having wiped herself with a tissue, and menstrual blood making its way onto a used condom that was already in the waste basket. He agreed that, if that happened, it could explain the results. However, the amount of DNA suggested that the blood was wet at the time of transfer. If the condom was found inside a toilet roll, the toilet roll would have provided a mechanical layer preventing a transfer of bodily fluid from a tissue. Also, if there had been a transfer of blood from a tissue, one would expect to have seen staining on a tissue. What was obvious was that the condom came into direct contact with Ms S.B.’s blood through sexual contact or otherwise. The blood would have had to have been wet to explain the amount of DNA that was found.

[32] With respect to the sanitary napkin and underwear, no semen was detected, but blood and amylase were detected on both. Hairs and fibres were collected and preserved but nothing was done with them.

[33] Two cut-outs were taken from each of the sanitary napkin and underwear in areas reacting to amylase. They were subjected to DNA analysis. The analysis included comparison with the sample from Mr. Akpu. The complainant’s DNA was identified on the two cut-outs and there was a minor amount of DNA from at least one male, but nothing more could be determined. Because there was such a low amount of DNA, there could be any number of possibilities for primary or secondary transfer.

[34] On the cut-out from the underwear, there were three sources of DNA – Ms S.B., and a major male and a minor male contributor. Given the amount of male DNA profile here, a secondary transfer of even dry DNA could explain the results.

[35] The breast swabs showed Ms S.B. as a source and at least two additional contributors, at least one of which was male, but the amount of male DNA was too low to draw any conclusions.

D. Evidence of the Complainant

[36] Ms S.B. is 30 years of age. She has a developmental disability, that prevents her from working or going to a regular school, and she has a support worker. She has two children who live with her mother.

[37] On July 19, 2008 Ms S.B. was watching TV and looking after her daughter at her mother’s house. After putting her daughter to bed, she left the house and went to Sugar Daddy’s, a club in Mississauga, travelling there by herself in a taxi. At the club she was dancing and drinking Heineken. She had three beers, and had consumed no alcohol before leaving home.

[38] At the club Ms S.B. saw a friend from her parenting class. She also saw Henry Osunde, a friend she had known for many years. They had a short conversation, just asking how each other was doing. Henry was there with a friend, but they were not introduced. She stayed at Sugar Daddy’s until it was late and then took a taxi home.

[39] At home, Ms S.B. lay down for a little bit on her bed before calling Henry on her phone. She called three times before he answered. They asked each other what they were doing, and Henry told her he was just dropping his friend off. It was after three a.m. when he came to get her in a silver car with two doors that was not his own. She was quite sure no one else was in the car. She thought they would go to Henry’s house, but he decided to go to his friend’s house. She did not know the friend and she never learned his name. There were two levels to the house, and the friend lived in the basement. In the taxi she had stopped to get a burger and she thinks Henry had a burger too.

[40] When they arrived she and Henry sat on one couch and Mr. Akpu was lying sleeping on the other couch. They didn’t say anything to each other. She was not long on the couch, when she and Henry decided to go to the bedroom. She removed all her clothes and they were on top of the sheets and blanket. Afterwards she was lying under the sheets. Henry put on a condom, that he took from the table beside him. She did not remember the colour. Although he put on the condom, she changed her mind and there was no sex. Henry was okay with it. She put her clothes back on and Henry left to pick up a friend, saying he would come back to get her. During this time Henry’s friend was in the living room. She did not remember whether she fell asleep.

[41] Mr. Akpu was drunk that night and you could smell it on his breath when he was talking. She woke him up to call Henry, and she had to say it a few times, talking loudly. She didn’t know where her phone was so she wanted Mr. Akpu to call Henry. Ms S.B. went back in the bedroom, when the friend was still in the living room. When she returned to the living room, she sat on the couch for a little bit. Mr. Akpu got up from the other couch and sat beside her but she moved away and told him to leave her alone. He told her that she had to give him sex now and she refused. He grabbed her arm and pulled her into the bedroom and she was fighting him. She scratched him and slapped him. He pushed her onto the bed and climbed on top of her. He took down her panties and started to have sex with her, entering her vagina. She told him she wanted to go home, but he didn’t stop. Finally she got away by telling him she wasn’t feeling well and needed to go to the bathroom. She was sitting in the bathroom when he broke in. She said she wanted to go home. As they struggled, he stuck his fingers in her vagina. She ran back into the bedroom to get her panties and cell phone. She left Mr. Akpu’s apartment, and walked all the way home in the rain. She did not know whether Mr. Akpu wore a condom or ejaculated.

[42] Ms S.B. said that her acrylic nails were broken from scratching Mr. Akpu. He broke the bathroom door, when he was yelling and screaming at her. She said he broke the pipes underneath the sink when he broke the door. He accused her of damaging the bathroom, but she said he did it. She denied seeing or taking Mr. Akpu’s wallet.

[43] When she got home Ms S.B. went to her room and started to cry. She called Telehealth and a nurse told her to go to the hospital. She was sent to another hospital where she had a sexual assault examination. She felt disgusted, upset and angry. She was wearing a dress, panties and a bra which she turned over to the nurse. She did not remember being on her period or wearing a sanitary napkin.

[44] Under cross-examination Ms S.B. agreed that Mr. Akpu was mad when she woke him up. She denied that there was water all over the place at the time and she insisted that the water flooded later after he broke into the bathroom and the door flew open. She was sitting beside the wall on the floor and she didn’t cause the pipe to break.

[45] Ms S.B. also denied that Mr. Akpu talked about his girlfriend coming home or that he tried to push her out of the house. She denied that she had seen or taken his wallet or that Henry had told her that Mr. Akpu was going to the police.

[46] Ms S.B. was asked about certain inconsistencies in her accounts. She first told the police that she left the bar with Mr. Akpu who was driving the car, and she left out all mention of Henry. She explained that she didn’t want to get Henry in trouble because it was not his fault. He wasn’t there when she was assaulted. In her police interviews she said the TV was on at Mr. Akpu’s apartment, however she insisted at trial that she never watched TV that night in the living room or in the bedroom.

[47] Ms S.B. was asked in detail about her struggle with Mr. Akpu. She insisted that the water flooded in the bathroom after he forced open the door. She wanted to go home and he said she broke the pipe, but she said, “No you broke it”. Then he ran upstairs and locked the door. He pulled her down the steps, and she was kicking him on his leg. He started taking his fingers and put them between her legs, saying she would have to give him sex, and she refused. He told her after he’d done having sex with her he would drive her home. She denied that she was angry only because Mr. Akpu made her walk home in the rain.

[48] Ms S.B. was asked what happened to the condom that Henry was using and she said that he got up and went to the bathroom and threw it in the garbage.

Defence Evidence

A. Evidence of Agiliga Akpu

[49] Agiliga Akpu testified in his defence. He was born in 1983 in Nigeria and was seven years old when his parents passed away. He and his siblings were separated and went to live with different family members. He came to Canada at age 20, where started an upgrading course, but quit that to start working. He is now a Canadian citizen.

[50] Mr. Akpu lived for about a year with Stacey Smith at […] Court. He has been in a relationship with her for eight years, and they have a very young child.

[51] Mr. Akpu met his friend Henry, who is also from Nigeria, through his aunt. He doesn’t know Henry’s last name, and he did not know him in Nigeria although he is from a place close to his home village.

[52] On July 19, 2008 Mr. Akpu had what he described as a little argument with his girlfriend and she left the house. Later that evening Henry called wanting to go to a club. His car was not working and he wanted to borrow Mr. Akpu’s car. Mr. Akpu reasoned that he would have to go along if Henry wanted to borrow his car. He had refused earlier to go with a friend to a club in Kitchener, and he didn’t have any money.

[53] Between nine and ten p.m. he drove to Henry’s house and Henry drove them both to Sugar Daddy’s. They probably had a drink at Henry’s place before they went to the club, getting there after 11. Henry paid for him to get into the club and paid for his drinks. He recalled drinking three beers, but he may have drunk more and maybe had something in addition to beer. He was dancing on the dance floor.

[54] Mr. Akpu said that he didn’t meet up with anyone else at the club, and he didn’t talk to or dance with S.B.. He was not even introduced to her. At some point he said he felt really drunk and wanted to go home. He had eaten no dinner that night. Mr. Akpu describes himself as 5’5” or 5’6” and his weight as 140 pounds both then and now.

[55] Henry drove them home. On the way Henry said he wanted to pick up his girlfriend. Mr. Akpu said he fell asleep and when Henry stopped to pick up the girl, he got out so the girl could get in. They drove to his house, and he opened the door and went downstairs and they followed. Mr. Akpu fell asleep on one of the couches in his living room. He had no idea of the time or what Henry and the girl were doing.

[56] The next thing Mr. Akpu remembered was hearing the girl say, “where’s Henry?”. She was waking him up and she wanted to go home. The floor was covered with water, and he got upset, and asked what she was doing there. She said she didn’t know how the water got there, and he said that she needed to go, because his girlfriend was coming home. He tried to call Henry twice but he didn’t pick up. He was arguing with the girl, trying to push her out of the house. He was also trying to clean up the water. He saw when he pushed her out that his car was not in the driveway and he thought Henry probably took his car home. He locked the door, and cleaned up and went to his room to sleep.

[57] Henry called him later that morning, and he told him he couldn’t find his wallet. Maybe he dropped it outside or at the club. He was not accusing anybody, but he asked Henry to call the girl. When Henry came to his house with the car he drove Henry back home and then went to the police station to report his wallet missing. At home he made some phone calls regarding his identification, to the bank and the health card office. He had a hangover still and the feeling of alcohol in his body.

[58] His girlfriend came home in the afternoon. She was still upset from their argument. They had argued over a call she had received from a guy.

[59] Mr. Akpu said he did not know how the bathroom door had been broken or damaged, although under cross-examination he said that the door was not broken during his struggle with Ms S.B.. He denied kicking the door or banging open the door when she was in the bathroom. He denied that he had demanded sex. He never touched Ms S.B. sexually and he did not have sexual contact in mind. He only pushed her to get out of the house. He denied being in the bedroom with Ms S.B. at any point.

[60] Mr. Akpu co-operated when the police came to the door and searched his home and he went to the police station to answer questions. Later when the police came back he gave a swab from his mouth and consent to check his phone records.

[61] Mr. Akpu said that he kept condoms inside a drawer in a little dresser close to the TV across from the bed. He could not say what colour they were. He normally used condoms with his girlfriend who at the time didn’t want a baby. He did not know how the condom turned up inside the toilet paper roll, or how it came to have traces of semen with his DNA.

[62] Under cross-examination Mr. Akpu acknowledged that alcohol could affect both his memory and his behaviour, although he did not normally make trouble or anything when he was drunk. With respect to his condition that night, he was drunk, but not so drunk that Henry had to help him walk to the car from the club.

[63] Although he had testified that Henry called him, he wasn’t sure whether he called Henry about going to the club. He denied that he was eager to go out after fighting with his girlfriend. Mr. Akpu said he had no idea whether Henry had received a call from Ms S.B., and he denied telling Henry to go pick her up.

[64] Mr. Akpu claimed that the reason he was so mad at Ms S.B. when he woke up was that she had caused a flood and he didn’t know what to tell his girlfriend. He denied that the door was damaged by an argument. He told Henry it was Ms S.B. who broke the door and that there was water all over the place. He admitted that he had no argument with Ms S.B. earlier in the evening, and no other reason to be angry with her.

[65] Mr. Akpu claimed that he was not accusing anyone of taking his wallet, although he admitted that in his first police interview he told Henry that S.B. took his wallet and eyeglasses and he asked him to call her. He discovered later that the wallet had been in his apartment the whole time.

[66] Mr. Akpu was pressed on why Ms S.B. would have been so angry with him. He said, maybe it was because she had to leave in the rain and he was forcing her out. He said that he wanted her to leave but wanted to see why water was on the floor. He acknowledged that she had wanted to go home, and he wanted her to leave. He admitted that there was nothing that would make them angry with each other that had occurred before that time.

[67] Mr. Akpu denied that he had been in the bedroom with Ms S.B., however in a police interview he agreed with the officer that he had gone into the bedroom. He explained the inconsistency by saying that he only stepped into the bedroom while arguing with Ms S.B., and trying to get her to leave.

[68] With respect to his condition, Mr. Akpu said that he had never been this drunk and he had never been in that situation before. During his police interviews, he repeatedly said he had been drunk. He denied that he was saying this so he would not have to acknowledge what he did to Ms S.B..

[69] It was suggested to Mr. Akpu, that in speaking to the officers he allowed for the possibility that there was sexual contact. At one point he said, “What happened I don’t even know because I’m so – I’m drunk up ‘til that morning…”. He was asked, “Did you touch her…?”, and he responded, “I can’t remember that”. With respect to that exchange, he said he thought the officer was talking about when he pushed Ms S.B. out the door. When asked by the officer whether he caressed Ms S.B.’s breast, he replied, “I can’t tell you I did or didn’t”. Later he said, “I can tell you that I don’t know what happened. I’m drunk, really drunk”. At another point, when asked if he touched Ms S.B., Mr. Akpu responded, “not that I know of”.

[70] Mr. Akpu insisted that the only physical contact he had with the complainant was in the struggle to get her out of the house. When asked how his semen got on the condom in the waste basket, he said that every time he has sex with his girlfriend he throws things in the garbage can. He denied that it got there through sexual intercourse.

B. Evidence of Henry Osunde

[71] Henry Osunde testified for the defence. He is 26 years old and came to Canada in October 2000 from Nigeria. He was married from July 2003 to November 2008 when his divorce became final. He didn’t know Mr. Akpu in Nigeria, but met him when he arrived in Canada, and he was asked by Mr. Akpu’s aunt to help him find a job. At the time he saw Mr. Akpu about once a month.

[72] Mr. Osunde was asked about the events of July 20, 2008. Mr. Akpu called him on the evening of July 19 and suggested that they go somewhere together. Mr. Akpu had told Mr. Osunde he was having a relationship issue with his girlfriend. Mr. Akpu was pretty upset about what he found out about his girlfriend, and that was the reason he wanted to go to the club. Under cross-examination Mr. Osunde confirmed that it was Mr. Akpu’s idea to go to the club, that he had found his girlfriend was messing with another guy and he was going to change the locks and throw her things out, or he had already done so. Based on what Mr. Akpu was saying, Ms. Osunde thought the relationship was over. It was like Mr. Akpu was a “free man”, and Mr. Osunde had the impression Mr. Akpu’s girlfriend wasn’t living there anymore.

[73] Mr. Akpu offered to pick up Mr. Osunde, and Mr. Osunde ended up driving Mr. Akpu’s car. There was nothing wrong with Mr. Osunde’s vehicle and he had not asked to borrow Mr. Akpu’s car. Since Mr. Akpu only had $20, Mr. Osunde paid for his entry to the club and for his drinks.

[74] Mr. Osunde could not recall Mr. Akpu’s state at the end of the evening, or how much he had to drink, but he said he was able to have a decent conversation with him. Every time he got himself a drink he got one for Mr. Akpu, and the two had consumed some red wine at his place. There were no outward signs that Mr. Akpu was drunk at the end of the evening. He was not incoherent or stumbling. He was in a good mood and laughing and dancing at the club.

[75] Mr. Osunde said that they bumped into S.B. at the club. He has known Ms S.B. since about 2001 when she was 19. He recalled introducing her to Mr. Akpu as a courtesy. He never referred to S.B. as his “girlfriend”.

[76] He and Mr. Akpu left the club after two a.m. when the bar was closing. His phone rang when he was at Hwy. 410 and Queen Street. It was S.B. asking him to pick her up. He had given her his number at the club. Mr. Akpu said, “Let’s go get her” when she called.

[77] After picking up Ms S.B., they went to Mr. Akpu’s place. Mr. Osunde asked if he had any food, but his fridge was completely empty. S.B. brought out fries and a burger and he microwaved the fries and he ate them. They sat in the living room watching TV. Mr. Akpu went to sleep on the couch.

[78] Mr. Osunde went into the bedroom to talk on the phone, when S.B. joined him, and was making sexual advances. He took down his pants, and got a condom from Mr. Akpu’s nightstand, after asking him where they were. There was no penetration, and they were interrupted when an urgent phone call came in. Mr. Osunde had to leave to pick up his friends who had been pulled over by the police. He said that he tossed the condom in the garbage in the bathroom close to the toilet. He did not hide it in anything or wrap it up. S.B. said she would wait for him.

[79] When Mr. Osunde was leaving at around 4:30 he realized that Mr. Akpu was fast asleep, so he smacked him and called his name a few times, trying to wake him up so he would lock the door. He didn’t respond right away and Mr. Osunde realized the alcohol was having an effect on him and he was in a deep sleep. He had tried to get Mr. Akpu’s attention to tell him S.B. was there and that he was leaving his house.

[80] Mr. Osunde picked up his friends at 427 and the West Mall, and dropped them off at a building. It was raining and still dark, but early in the morning. He started to head back to Brampton. He was on his way home to change his clothes when Mr. Akpu called. It was about 6:00 or later. Mr. Akpu said that his wallet and ID were missing, that the girl left and stole his wallet, and that his glasses were gone. Mr. Osunde asked why S.B. would take his wallet, and he offered to call her, but he did not do so immediately as it was too early. He returned Mr. Akpu’s car in the morning after seven or eight a.m. It could have been as early at 6:30.

[81] Mr. Akpu had called a second time and told him how S.B. broke his stuff and flooded his basement. Mr. Akpu said he had been fast asleep and heard a bang and that the girl destroyed his place. Mr. Osunde decided to go there, and saw that the whole basement was wet. It looked like the place was mopped already. There was damage on the front and back of the bathroom door, and the trim around the door had been yanked off. Mr. Akpu seemed confused, and Mr. Osunde said he never got any reasonable and sensible explanation of the damage. Based on his experience in construction, Mr. Osunde thought the door being forcefully opened had hit the sink and caused the flood.

[82] Mr. Akpu told him he had scratches on his arm, and that he did not know where they came from. Mr. Osunde didn’t look and didn’t see a scratch on his ear lobe. He was more concerned about the missing items.

[83] Mr. Osunde got a call from his wife who was coming back from Richmond Hill to pick him up for church with his daughter. On the way to church he got a call from S.B., who was upset and cursing, and he tried to calm her down. She said she was hurt but did not tell him about the sexual assault the first time they spoke. He did not confront her about Mr. Akpu’s wallet, as he was in the car with his wife. S.B. called again and he met up with her the next day. He knew what she was alleging. She had already talked to the police. She was very upset. He saw her broken nails and offered to take her to get them repaired.

[84] Mr. Osunde testified at trial that the condom he put on was blue or blue-green, although he told the police he had put on a blue condom. He told Constable Barnhart he threw it in the garbage because he was told the police found a condom and he thought he “had to own up to it” and that’s where he must have dropped it. He would have flushed the condom if it was completely used. In all honesty he could not recall what happened with the condom, but he had told the police officer he put it in the waste basket.

Submissions of Counsel

A. Crown Submissions

[85] Crown counsel submitted that the complainant’s evidence was given in a straightforward manner and she seemed to do her best to tell the truth. Sometimes she took a very literal approach. She seemed to be trying hard to recall an event that happened to her.

[86] The forensic evidence, as well as the damage to the bathroom door, the injury to Mr. Akpu and the damage to Ms S.B.’s artificial nails, supported the complainant’s version of the events. While there were some inconsistencies (such as her failure to mention Mr. Osunde in her first statement to the police) they could be explained and did not undermine the overall credibility and reliability of her evidence.

[87] There was no motive for the complainant to fabricate a claim of sexual assault by Mr. Akpu. They did not know each other and there had been no disagreement between them, even on his evidence. She was not capable of a devious plan to falsely accused Mr. Akpu of sexual assault because she was afraid of being accused of stealing his wallet. In any event she had already spoken to the police by the time she found out he thought she took his wallet.

[88] Crown counsel submitted that Mr. Akpu’s testimony, by contrast, was fraught with inconsistencies, and was contradicted many times by Mr. Osunde’s account. For example, he denied that he was accusing Ms S.B. of stealing his wallet, however it was clear from Mr. Osunde’s evidence that was exactly what he was doing.

[89] Counsel reviewed in detail the statements against interest that were made by Mr. Akpu during his police interviews. Although he denied the offence, he gave a number of answers suggesting that he might have forgotten what had happened, or not realized what was happening because he was so drunk. In fact he exaggerated how drunk he had been, while Mr. Osunde suggested he was not that intoxicated. There were three reasons he might have done so: to account for his professed lack of memory, because it would excuse his behaviour in his own mind, and because it might explain a behaviour he normally would not do. In fact, Mr. Akpu said, “I’d never experienced that before” and “I don’t normally do that”.

[90] In his police interviews Mr. Akpu allowed for the possibility of having had sex with Ms S.B.. When asked about kissing her breast he said he was “so drunk”. Later when asked again if he kissed her breast he said he didn’t know what happened that day, and then again later he said he was unsure. He said maybe his hands went up her dress. He said he was sorry for everything that happened. When he was asked if he touched Ms S.B. gently or caressed her he said he couldn’t remember that. He said he couldn’t tell the officer he did or didn’t do it, and then he said he promised himself to stop drinking.

[91] In his evidence Mr. Akpu could not account for his semen being in the condom along with Ms S.B.’s DNA. The hypothetical situations put to Mr. Hulse- Smith could not have occurred. The condom was protected in a toilet roll when it was seized. There was not enough blood on the sheets or in the garbage can that would account for the hypothetical secondary transfer. Mr. Akpu’s evidence provided no foundation for the inference that he might later have come into contact with a condom.

B. Defence Submissions

[92] Defence counsel pointed to the fact that the DNA evidence with respect to the sanitary napkin and the underwear was inconclusive, providing only some evidence of a male DNA. Mr. Hulse-Smith had acknowledged that there were several ways in which even Mr. Akpu’s DNA might have been transferred to these items other than through sexual contact.

[93] With respect to the DNA from the condom, only one condom was found and Mr. Osunde’s evidence was that he had disposed of a condom in the waste basket. There could have been traces of Mr. Akpu’s semen in the waste basket. The bed sheets were seized but not examined. There could have been other reasons why Mr. Akpu’s DNA was on the sheets, or could have found its way onto the condom, as a result of the transfer of his DNA from the sheets or in the waste basket. Defence counsel also suggested that there was a real possibility that the semen came from Henry and was similar to Mr. Akpu’s DNA as they came from neighbouring villages.

[94] Defence counsel submitted that Ms S.B. was not a credible witness, as she left out any mention of Henry Osunde when she first spoke with the police. There were obvious limitations on the complainant as a reliable historian. She denied being on her period, but a soiled sanitary napkin was recovered during her examination. A possible motive for alleging sexual assault was Ms S.B.’s fear of being blamed for the stealing Mr. Osunde’s wallet. Ms S.B.’s account of the water damage does not make sense. From the photos, it is apparent that the bathroom door could not have come into contact with the cabinet even if it had been forcefully opened.

[95] As for Mr. Akpu’s evidence, it was submitted that he was firm in his denial of sexual assault both when he was interviewed by the police and at trial. His big problem, according to his counsel, was that he said it was one of the times he was so drunk that he didn’t remember. Many aspects of his account however were confirmed by the other two witnesses, such as the fact that he was asleep on the couch before and at the time that Mr. Osunde left his apartment.

Legal Principles

[96] Credibility is central to this case. I commence my analysis by observing that it is wrong in law to pit the complainant’s version of events against the accused’s version of events. Paraphrasing Justice Dubin in R. v. Riley, [1978] O.J. No. 1007 (C.A.), the issue before me is not which version of the evidence is true, but rather, on the totality of the evidence viewed as a whole, whether the Crown’s case has been proved beyond a reasonable doubt.

[97] The Crown has the burden of proving the essential elements of the offence beyond a reasonable doubt, and this burden never shifts. It is not for Mr. Akpu to disprove or to prove anything, including that the complainant had a motive to lie. No matter what evidence the accused has given, the burden has remained on the Crown throughout the trial to prove his guilt beyond a reasonable doubt.

[98] Since the accused testified, the principles established by the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 are to be applied. That is, I must find the accused not guilty if I believe his evidence or, even if I do not believe his testimony, I am left in a reasonable doubt by it. If I am not left in doubt by the evidence of the accused, I must consider, based on the evidence that I do accept, whether I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[99] In considering with the evidence of any witness, the court must assess both its credibility and reliability. “Credibility has to do with the honesty or veracity of a witness’ testimony. Reliability has to do with the accuracy of a witness’ testimony”: R. v. Sanchar, 2012 ONCA 117, para. 69. To the extent that an assessment of the credibility of a complainant demands a consideration of whether there is evidence confirmatory of the testimony, such evidence need not directly implicate the accused or confirm the complainant’s evidence in every respect. The evidence should, however, be capable of restoring the trier of fact’s faith in the complainant’s account: R. v. Betker, (1997), 1997 CanLII 1902 (ON CA), 115 C.C.C. (3d) 421 (Ont. C.A.) at p. 429.

Analysis and Decision

[100] There is no question that there was a physical confrontation between Mr. Akpu and Ms. S.B. in the early morning of July 20, 2008. Ms S.B. claims that she was sexually assaulted and struggled to leave Mr. Akpu’s apartment while Mr. Akpu contends that he was struggling with Ms S.B. in an effort to force her to leave.

[101] It is not a question of choosing between the accounts of the complainant and the accused, but of carefully considering all of the evidence to determine whether a sexual assault has been proven. In this case, there is physical evidence to be considered – the injuries to Mr. Akpu, the loss of Ms S.B.’s artificial nails, the blood and semen on the condom found in the bathroom, and the damage to the bathroom door. There is also the evidence of Mr. Osunde, a friend of both the parties, who was with them both and in the apartment until shortly before the alleged events occurred, and interacted with each of them later that day. All of the evidence must be considered in order to determine whether the charge has been proven against Mr. Akpu beyond a reasonable doubt.

[102] I begin my analysis by considering the complainant’s evidence. Ms S.B. was a forthright witness who gave her answers in a clear and straightforward manner. Ms S.B. has a mental disability that prevents her from working or attending a regular school. Her answers were direct and blunt. She became defensive at any suggestion she might have done anything wrong, denying firmly that she had taken Mr. Akpu’s wallet or that she had caused the damage to his place.

[103] Ms S.B. appeared to have a clear and detailed recollection of events. There were very few inconsistencies between her evidence at trial and what she told the police during her interviews, the first of which was the day of the alleged assault. One inconsistency was her failure to mention Mr. Osunde during the first interview and her contention that Mr. Akpu drove her home from the club. She left Mr. Osunde out of the first account because, as she explained, he was not the one who assaulted her and she didn’t want to get him involved. Another inconsistency was between her evidence at trial that there was no TV on in the living room or bedroom at Mr. Akpu’s apartment and her earlier statement that they were watching TV. She did not attempt to explain this inconsistency, simply stating firmly at trial that the TV was not on. These inconsistencies in my view are not material, and do not undermine the credibility and reliability of her evidence particularly in view of the many aspects of her account that were confirmed by Mr. Osunde or were consistent with the physical evidence.

[104] Ms S.B.’s account was confirmed in a number of details by Mr. Osunde both in respect of what occurred at Mr. Akpu’s house when Mr. Osunde and Ms S.B. were present, and with respect to what Mr. Osunde observed when he attended at Mr. Akpu’s house and spoke with him. Mr. Osunde confirmed that, while he and Ms S.B. started to have sexual intercourse in the bedroom, they stopped before there was penetration. They both confirmed that he was wearing a condom, and their belief that he had disposed of it in the bathroom. Both testified that Mr. Osunde left to pick up friends, and that Ms S.B. stayed behind to wait for him. According to both, when Mr. Osunde left, Mr. Akpu was lying on the couch in the living room. Mr. Osunde’s evidence confirmed Ms S.B.’s distressed state the next morning when they spoke on the telephone.

[105] There was no apparent motive for Ms S.B. to lie. It was suggested that Ms S.B. may have fabricated the complaint when she was accused of having taken Mr. Akpu’s wallet. The timing of events however does not support this. According to Mr. Osunde, in his first call with Ms S.B. that morning she was very upset about what had happened to her. He didn’t mention the missing wallet because his wife was in the car on their way to church, and it was not until later that he spoke to Ms S.B. about the wallet.

[106] I turn to consider the evidence provided by Mr. Akpu. In his testimony at trial Mr. Akpu denied that he had sexually assaulted Ms S.B., or that there had been any sexual contact between them. He provided his own account of what had transpired between himself and Ms S.B., however there were a number of difficulties with his evidence. There were important inconsistencies between his evidence and that of Mr. Osunde. His account of the confrontation with Ms S.B., as an attempt to explain the damage to the house and his own injuries, was implausible. In his police interviews he was much less firm in his denial, suggesting instead that alcohol had interfered with both his memory and his judgment at the time. Each of these concerns with Mr. Akpu’s account is addressed in turn.

[107] First, Mr. Akpu’s evidence was inconsistent with that of Mr. Osunde on certain material points. Although Mr. Osunde was called as a defence witness he was friends with both the complainant and the accused. He gave his evidence in a direct and objective manner and seemed to recall the events of the evening with detail and clarity. Where Mr. Osunde’s account differed from that of Mr. Akpu I preferred and believed Mr. Osunde’s version of events.

[108] Mr. Osunde was quite clear in his evidence that it was Mr. Akpu’s idea to go to the club the night in question, as he was a “free man”, after his girlfriend had become involved with another guy. Mr. Akpu, by contrast, described his actions that night as though he had been a reluctant participant, that he had gone out only because Mr. Osunde asked to borrow his car because his own wasn’t working. According to Mr. Osunde however there was nothing wrong with his car, and Mr. Akpu was the person who was eager to go out, for reasons related to the problems he had with his girlfriend. Mr. Akpu, in his testimony, attempted to distance himself from Ms S.B., whom he described as “the girl” and as Mr. Osunde’s “girlfriend”, although Mr. Osunde said he hadn’t called her that and she was not his girlfriend. According to Mr. Osunde, Mr. Akpu encouraged him to pick up the girl after Ms. S.B. called while they were in the car, saying “let’s go get her”. Mr. Akpu claimed that he was asleep in the car when they picked up Ms S.B.. While these contradictions were not with respect to the main part of Mr. Akpu’s evidence, I find that he was deliberately attempting to portray himself as an unwilling participant in the evening’s activities, and as such someone who would have been unlikely to attempt to have sexual intercourse with S.B..

[109] I turn to consider the physical evidence of damage to Mr. Akpu’s house and the injuries he sustained, and his explanation for how these occurred. There was damage to the door frame and door of the bathroom that Mr. Osunde and Mr. Akpu both acknowledged had not been present before Mr. Osunde left the apartment. Mr. Akpu claimed that he did not know how the damage occurred, but that it was caused by Ms S.B. before she woke him up, and not during his struggle with her. Mr. Akpu admitted however that there had been no prior conflict between Ms S.B. and himself. What then could have provoked Ms S.B. to cause such damage while Mr. Akpu was sleeping? She had no reason to be angry at Mr. Akpu with whom she had not interacted at all, and there was no indication she was angry with Henry for leaving her there. Why would she cause damage to Mr. Akpu’s house, including breaking a pipe in the bathroom and causing a flood, before waking him up and attempting to reach Henry on Mr. Akpu’s phone? A more logical explanation is that all of the damage, including the broken pipe, occurred during Ms S.B.’s struggle to escape a sexual assault.

[110] Mr. Akpu’s contention that he was injured when the two of them struggled while he tried to push Ms S.B. out of the house before his girlfriend got home also makes little sense. He agreed that Ms S.B. woke him up wanting to go home and that she wanted to leave. There would have been no need to physically push her out the door to the extent that she was fighting him and he was injured. If she was reluctant to leave in the rain, why wouldn’t one of them have called a taxi? Why would he be so concerned about his girlfriend coming home if nothing sexual had happened between the two of them, and Ms S.B. had maliciously damaged his property? The only realistic explanation on the evidence for all of the damage and his injuries was that Ms S.B. was trying to escape an assault by Mr. Akpu. Mr. Akpu’s account of a physical struggle to get Ms S.B. out of his house to avoid detection is implausible.

[111] A third factor when considering Mr. Akpu’s account is that, in speaking with the police soon after the events, he allowed for the possibility that he had assaulted the complainant but had been too drunk to remember what happened or to have controlled his actions. The responses to questions about whether he had touched Ms S.B.’s breasts and what had happened were referred to by Crown counsel during Mr. Akpu’s cross-examination. On one occasion he tried to suggest he had misunderstood the officer’s question, however it was clear that Mr. Akpu had no explanation for his insistence during questioning that he could not recall what happened because he was drunk and his admissions that he might have touched Ms S.B.. These admissions significantly undermine his denial of a sexual assault and his other evidence at trial about what transpired.

[112] Applying the first parts of the WD analysis, I do not believe Mr. Akpu’s testimony and it does not leave me with a reasonable doubt. It is only if, considering all of the evidence at trial, I am left with no reasonable doubt, that Mr. Akpu can be found guilty of this offence.

[113] As I have noted, the complainant’s evidence was for the most part credible and reliable. That evidence was supported by the physical evidence, that was consistent with a sexual assault having occurred in the manner Ms S.B. had described. Further, and importantly, there was DNA evidence connecting Mr. Akpu to a sexual assault on Ms S.B..

[114] What is clear is that one green condom was collected from the accused’s residence, from the waste basket in the bathroom, and this condom had both Mr. Akpu’s DNA from semen and Ms S.B.’s DNA from blood. Defence counsel suggested that the condom that was found may have been the one that Mr. Osunde admitted he was wearing and had disposed of in the bathroom, and that either the DNA that was identified belonged to Mr. Osunde and not Mr. Akpu, or was there by way of secondary transfer from Mr. Akpu’s bed or other means.

[115] Mr. Osunde’s evidence initially was that he disposed of the condom he was wearing in the waste basket in the bathroom. He told the police it was a blue condom. At trial he said it was blue-green, but he eventually confirmed it was blue. It became clear in his testimony that Mr. Osunde had no recollection of where he disposed of the condom, and that he had “owned up to” the condom in the waste basket because that is where the police found it. He also had no recollection of putting the condom in a toilet paper roll. Mr. Osunde’s evidence does not support the contention that the condom that was seized belonged to him.

[116] A number of possible scenarios were put to the forensic biologist, Mr. Hulse-Smith, in cross-examination, including the suggestions that Ms S.B.’s blood may have been on the sheets of the bed, or on a tissue in the waste basket, and transferred to a condom Mr. Akpu was wearing in bed or had disposed of in the waste basket. Based on the evidence of Mr. Hulse-Smith, however there was no real likelihood of a secondary transfer accounting for the presence of both parties’ DNA in this case. Ms S.B.’s blood had to have been wet to account for the large amount of DNA identified. Although there may be an inference that historically Mr. Akpu had sexual intercourse with his girlfriend in the bed, he did not testify to that effect, either about prior intercourse, or intercourse between the time that Ms S.B. was in his bed and the police seized the condom. If the condom was in a toilet roll, this would have provided a barrier to the secondary transfer of blood onto the condom when it was in the wastepaper basket. Finally, there was no foundation from the evidence of Mr. Hulse-Smith to support the speculative theory that Mr. Osunde’s DNA might be mistaken for Mr. Akpu’s DNA because they were born in neighbouring villages.

[117] After considering all of the evidence at trial, including the testimony of the complainant, which was confirmed in certain material aspects by that of Mr. Osunde, and the physical evidence, and in particular the presence of Mr. Akpu’s DNA together with Ms S.B.’s DNA on a condom found in Mr. Akpu’s bathroom, I am satisfied beyond a reasonable doubt that Mr. Akpu assaulted Ms S.B. sexually in the manner she alleged in the early morning hours of July 20, 2008.

[118] Agiliga Akpu is accordingly found guilty and convicted of sexual assault.

K.M. van RENSBURG J.

Released: March 19, 2012