Judge asked to consider evidence of one alleged sex assault in trial on another
A Halifax provincial court judge is being asked to consider evidence from one alleged sexual assault in determining whether a man is guilty in a second alleged sexual assault.
Both allegations pertain to 35-year-old Matthew Percy, a former groundskeeper at Saint Mary's University in Halifax.
The request to consider both incidents at once is part of a voir dire that is proceeding at the same time as the main trial.
That trial opened earlier this week before Judge Bill Digby and relates to an alleged incident on Sept. 3, 2017.
A woman, who was a 21-year-old Saint Mary's student at the time, testified that Percy sexually assaulted her in his apartment early that morning. He is charged with sexual assault, overcoming resistance by choking and voyeurism.
Woman came forward after hearing media reports
The woman only came forward to police after hearing media reports of a second allegation against Percy.
Another woman alleges she was sexually assaulted in a dorm room on the campus, just 12 days after the Sept. 3 incident.
In the course of investigating the Sept. 15 incident, police seized Percy's cellphone. He signed a consent order allowing police to search for a video relating to that incident.
In court on Thursday, Det. Const. Susan Mitchell of Halifax Regional Police, the lead investigator in both cases, said when she viewed a video from Percy's phone she recognized a woman in that video as the complainant in the Sept. 15 incident.
That video was played in court earlier this week.
Judge asked to consider video
It shows a naked woman sprawled across a single bed. Her head and arm are lolling off the edge of the bed, her eyes are closed and she appears to be unconscious.
The Crown wants Judge Digby to consider that video when he decides whether Percy is guilty of sexual assault in the Sept. 3 incident.
On Monday, the police tech crime expert who extracted the video from Percy's phone testified that what he saw made him think he was witnessing video of a crime.
He recommended, and Mitchell agreed, that they should get a warrant to search the entire contents of Percy's phone.
When they obtained the warrant, police pulled three more videos from the phone. Those videos have been played repeatedly in court during the trial this week.
Crown closes its case
Mitchell testified that she subsequently learned the woman depicted in those videos is the complainant in the alleged assault from Sept. 3.
The woman had to watch the videos three times in court as lawyers questioned her about the contents. She testified that she did not consent to having sex with Percy that night and that she was too drunk to consent. She also testified that she wasn't aware she was being recorded and wouldn't have consented if she had known.
The Crown has now closed its case in relation to the charges from Sept. 3.
Percy is facing two more trials on two other allegations. One of those trials relates to the incident from Sept. 15, 2017. The other trial is for allegations dating back to December, 2014. Both those trials are scheduled for later this year.
On Friday, the Crown and defence will make their arguments about whether Judge Digby should consider evidence from one alleged sexual assault in determining Percy's guilt or innocence in the other alleged sexual assault from last September.
The judge will hand down his ruling next Wednesday.
