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Grand Bank judge dismisses assault charge, saying incident may have been 'a consent fight between drunken spouses'

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ST. JOHN'S, N.L. —

A Grand Bank judge has found a man not guilty of assaulting his wife after a night out in 2016, saying there wasn't enough proof to determine the altercation wasn't a consensual fight.

Justice Robert Fowler said he didn't believe the accused's testimony at trial, noting the man's evidence wasn't reliable because he was drunk at the time of the incident and didn't remember all the events, he had contradicted himself in his testimony, and other evidence presented at trial didn't corroborate what he was saying.

However, Fowler acquitted the man of the assault charge, saying the Crown had not proven beyond a reasonable doubt that he had assaulted his wife, and the mechanics of how the two of them had ended up lying on the stairs in their home during an argument was unclear.

"The photographs tend to confirm her version of events, but not to the extent required by law, of proof beyond reasonable doubt." — Judge Robert Fowler

Over an eight-day trial, the court heard that the incident had allegedly happened three years ago, though the woman didn't report it to police until April 2018. The couple and some of the woman's friends had been drinking and went to a "glow stick party" at a local bar. The woman said her husband went home, while she stayed at the bar and later went to a house party with her friends. She said she returned home with one of her friends after receiving a text from the babysitter, who wanted to go home.

The woman said her husband began verbally abusing her after she arrived, calling her names. They went upstairs to the attic to argue and smoke a cigarette, and he came toward her and knocked her off her feet after she asked him for some weed, she said.

The woman said she lost consciousness and awoke to find her husband pinning her down. She said he followed her downstairs and yelled abuse at her as she left.

The woman's friend took photos of the woman's injuries — including bruises on her hip and side, marks on her elbow and swollen fingers — a few days later.

The friend testified she did not see the altercation, but heard the couple yelling upstairs, with the man calling the woman names. She said she heard what sounded like someone striking an object, followed by the woman yelling, "Get off me!"

The accused testified that he had gone to sleep after he left the bar and went home that night, and had been woken up by his wife, asking him for weed. He and the woman argued in the attic, and she grabbed him by the jacket, he said, pulling him backward toward her. He lost his balance and fell on top of her before she hit him in the head with her fist and kicked him in the stomach.

The man said he then got off the woman and went into the bedroom as she left the home.

The judge noted the accused had repeatedly qualified his evidence with, "I can't be completely sure because I was intoxicated," "It's not crystal clear," and "It was almost four years ago, I was drunk, so I can't be sure of everything."

The man was unable to explain why he had been wearing a jacket — which he said his wife grabbed when she pulled him down — if he had already been in bed that night, saying he couldn't recall what he was wearing after all. He testified that the woman had not told him to get off her, but later said he couldn't remember if she had or not.

On cross-examination, the woman acknowledged she had been drinking and smoking marijuana on the night of the incident, but wasn't drunk. She said she had not told police of the alleged assault for two years and only reported it after her husband, from whom she was separated at that point, sent her text messages she believed suggested suicidal thoughts. She confirmed they had been in the midst of a family court process at that time.

When the defence suggested the woman had injured her hands by hitting her husband, she agreed.

"I got a couple of good smacks in while he was on top of me," she said.

In delivering his decision Oct. 17, the judge said he wasn't convinced beyond a reasonable doubt of the man's guilt.

"There is no clear evidence as to how the two ended up on the floor. I accept that (the woman's friend) heard (the woman) tell the accused to get off of her. However, whether he struck her or she struck him first is not clear from the evidence," Fowler said. "The photographs tend to confirm her version of events, but not to the extent required by law, of proof beyond reasonable doubt. 

"At the end of the matter, it is just as likely that this was a consent fight between drunken spouses as it was an assault by one spouse on another. In such a case, there is only one verdict."

Fowler acquitted the man of the charge.

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