The Crown claims a Halifax provincial court judge made at least six errors in acquitting a former Saint Mary’s University groundskeeper of sexually assaulting a young woman at his apartment in September 2017.
Matthew Albert Percy, 35, stood trial this summer on charges of sexual assault, attempted choking and voyeurism, for allegedly surreptitiously recording video of parts of the Sept. 3 encounter with his iPhone.
Judge Bill Digby found the Halifax man not guilty on all three counts, saying the Crown failed to prove beyond a reasonable doubt that the complainant, a SMU student, had not consented to have sex.
In a notice of appeal filed Sept. 20, the Crown says Digby erred during the trial when he refused to admit “evidence of similar acts” by Percy.
During a voir dire blended into the trial, the court was shown video from a sexual encounter Percy had with another SMU student Sept. 15, 2017. In one of those video clips, Percy appears to be having intercourse with the woman while she is passed out.
Prosecutor Rick Woodburn said there were striking similarities between the two incidents and asked the judge to infer that Percy is a person who is indifferent to whether or not his sexual partner is consenting.
But the judge said the inference the Crown was asking him to draw by comparing videos from the two events was “overly broad and not supported.”
The judge said the prejudicial effect of allowing evidence from the other incident would outweigh the probative value.
In its notice of appeal, the Crown also claims the judge erred by misapprehending the evidence of the complainant on the issue of consent, by improperly applying the doctrine of reasonable doubt, by misdirecting himself on the legal meaning of consent, by engaging in speculation on the issue of consent, and by failing to provide reasons “sufficient for meaningful appellate review of the correctness of the decision to acquit.”
The Crown wants the Nova Scotia Court of Appeal to set aside the acquittal and order a new trial.
Percy is currently on trial in provincial court on charges of sexual assault and voyeurism from the Sept. 15 incident. He finished testifying Tuesday and the Crown plans to apply to have rebuttal evidence heard Thursday.
A third trial, on a charge of sexual assault causing bodily harm from a December 2014 encounter with a woman at Dalhousie University, was supposed to be held in provincial court next week, but Percy re-elected Tuesday to be tried by a Nova Scotia Supreme Court judge alone. The Crown intends to file a preferred indictment to send the matter directly to trial without a preliminary inquiry.
Percy has also elected to be tried by a Supreme Court judge on a fourth set of allegations — sexual assault causing bodily harm, choking and assault. The charges were laid in August after police received a complaint in June that a woman had been sexually assaulted in Halifax in November 2013. A preliminary inquiry into those charges will be held in provincial court in January.
