Alleged comments of woman who says she was gang raped admitted as evidence

“I didn’t know what the hell was going on … I was in shock,” the woman told the judge-only trial last month.

When asked if she had consented to sexual activity with Smalley or anyone else, she said: “There was none … I would not have consented.”

The British sailor is charged with sexual assault causing bodily harm and participating in a sexual assault involving one or more people.

Smalley was part of a Royal Navy hockey team that was in Halifax to compete in a tournament.

The complainant was at the Warrior Block barracks on the night in question because her friend had invited her on a double date after meeting a British sailor on Tinder, an online dating site.

Earlier this week, a British petty officer testified he overheard the woman tell her friend that she was going to “sleep with” Radford, but the Crown objected to the comment being allowed as evidence.

The petty officer, Paul Hoskins, told the court he was walking back from the barracks bathroom when he heard the complainant speaking.

“I heard (the complainant) saying that she was going to sleep with Simon (Radford) and that (her friend) was going to sleep with (another sailor),” Hoskins told the court via video link.

During submissions Tuesday, Crown attorney Eric Taylor withdrew his initial objection, in which he said the comment should not be entered as evidence because it would violate Criminal Code provisions prohibiting the exploration of a complainant’s sexual history.

He said he agreed that the statement could be used to assess the credibility of the complainant in the context of her emotional state.

However, he said the comment could not be considered evidence of future sexual activity with Radford or others.

“That does not come within the rubric of the subject matter of the charges,” he told the court, adding that the comment could not be used to show she was consenting to group sex.

“The wording is so ambiguous that no weight should be given to it.”

Earlier in the trial, the complainant said under cross examination that she felt fearful at the base after she lost her friend.

She reiterated that despite feeling uncomfortable, she did not leave the barracks because she did not want to abandon her friend.

She also told the court she gave Radford a goodnight kiss, as if to say “thank you” for letting her sleep there.

At one point, defence lawyer Ian Hutchison suggested the kiss was in fact “more than just a goodnight kiss.”

“I would obviously disagree,” she said.

The case originally involved four accused, but charges against Radford were stayed earlier in the trial because he was being treated in hospital for an infection. The charges can be reinstituted within one year.

The Crown said it would not proceed with charges against Joshua Finbow after Duncan ruled his statement to police was inadmissible.

The justice ruled Finbow’s Charter rights to consult counsel immediately were violated after he had to wait almost 90 minutes to see a lawyer.

Charges were withdrawn against Craig Stoner several days into a preliminary inquiry in April 2016.

The defence closed its case Tuesday and the Crown did not offer a rebuttal. Final submissions have been scheduled for Thursday.

Michael MacDonald, The Canadian Press

by Canadian Press

Alleged comments of woman who says she was gang raped admitted as evidence

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