Warning: This article contains graphic content. Discretion is advised.
As the sexual assault trial of a former university groundskeeper reached its final stage on Thursday, his defence team highlighted what they described as the “convenient” gaps in the complainant’s memory.
Peter Planetta stressed multiple times through the morning’s proceedings that the gaps in memory of the woman who has accused his client of sexual assault should leave reasonable doubt about whether Matthew Albert Percy acted without consent.
Percy is accused of sexually assaulting a then-19-year-old woman at a Dalhousie University residence on Dec. 6, 2014.
The former groundskeeper at Saint Mary’s University has pleaded not guilty to a charge of sexual assault causing bodily harm and the trial is being heard by judge alone in Nova Scotia Supreme Court.
The complainant’s identity is protected by a publication ban.
The complainant testified last week that she was 19 when she met Percy after partying at Cheers, a bar that existed at the time in The Dome, a multi-level nightclub in downtown Halifax.
She said Percy invited her to get poutine at a nearby take-out restaurant, only for them to stop at the nearby Toothy Moose bar for a drink before getting the food.
The complainant testified that she did not remember the trip, but that the pair eventually ended up at her Dalhousie residence on LeMarchant Street.
She has alleged that Percy assaulted her multiple times, in both her bedroom and the nearby washroom, leaving her with bite marks on her neck and painful bruises on her rear that left her unable to sit down for days.
The complainant testified that she “clearly told Percy no” as he violently initiated anal sex.
It’s contrasted with the videotaped police interview with Percy, recorded only days after the alleged assault.
Percy portrayed the evening as passionate but rough sex between two consenting individuals.
He admitted to not using a condom but said that he noticed scratch marks and injuries on the complainant’s rear that he compared to having “slid on turf” before they moved to the washroom.
He said that he asked the complainant how she got them, to which she replied, “You did that to me.”
Percy described the complainant as initially resistant to having anal sex before she ultimately said yes.
“I never meant to hurt her and I just wanted to have a good time and release some stress,” Percy said in the video.
On Thursday, Planetta argued that Judge Joshua Arnold must weigh both Percy’s and the complainant’s testimony equally but that there are issues and inconsistencies with her version of events.
Planetta said it is an issue that the complainant is able to remember parts of the evening that bolster her narrative but is not able to remember parts that could put her testimony on the stand or previous statements she has made in doubt.
In contrast, Planetta said that Percy’s credibility is helped by the part of his statement where he admitted to liking control during sex, arguing the fact that he admitted to something that could’ve been viewed negatively under questioning by police said that it helped his credibility.
Defence lawyer Peter Planetta spoke to media after court wrapped up on Thursday. Here he is explaining why Matthew Percy’s statement to police should be believed as credible. pic.twitter.com/gS3ePIyJn8— Alexander Quon (@AlexanderQuon) February 27, 2020
The defence lawyer argued that the gaps in the complainant’s memory meant she couldn’t deny that something had or not happened — including her consent to sexual activity.
Planetta argued that if the complainant eventually agreed to have anal sex after saying “no” then the case law points to consent being given.
“He asked for consent, on two different occasions he asked for consent,” Planetta told media. “He said in his statement, which is evidence, same as if he had testified, that there were a number of things said by the complainant that indicated consent.”
He said that his client was acting on the “honest belief” that consent had been provided to him.
Crown attorney Rick Woodburn disagreed that the complainant’s gaps in memory were “convenient”, arguing during his presentation that they were a combination of inebriation, trauma and the six years that have passed since the alleged assault occurred.
He said that despite the gaps, the complainant’s story didn’t change during direct questioning or cross-examination.
“The points she testified to were unwavering,” Woodburn said about the complainant, especially in the events where she alleges she was assaulted.
Testimony from the complainant’s roommates was also supportive of her testimony.
One roommate who was called as a defence witness testified that she had heard loud slapping and moaning coming from the complainant’s room the night of the assault.
The witness said that she didn’t hear any words that would indicate something bad was happening.
Woodburn said the testimony would be innocuous unless it was combined with evidence, including the testimony of the Sexual Assault Nurse Examiner who conducted an examination on the complainant and the apparent handmarks on her rear.
The Crown attorney said that there is no evidence before the court that Percy knew the complainant’s version of events or even the injuries she suffered but that his statement to police lines up remarkably with the testimony of the complainant.
He said that all Arnold had to do to believe sexual assault had occurred is to remove a line from Percy’s statement, which is that the complainant said “yes” before he initiated anal sex.
Percy’s case currently before the Nova Scotia Supreme Court is his third sexual assault trial. The first two incidents occurred in September 2017 and involved Saint Mary’s University students.
Percy was found guilty of sexual assault and voyeurism in one trial, but was acquitted on charges of sexual assault, choking to overcome resistance and voyeurism in the other.
Percy has already served a two-and-a-half-year prison sentence. He has been denied bail while awaiting trial on this charge and another case scheduled for trial this year.
Woodburn is expected to finish the Crown’s closing arguments on Friday.
With files from Graeme Benjamin.