The lawyer representing a man charged with sexual assault opened his case Thursday by acknowledging a woman's right to withdraw her consent to sex at any time.
The woman in this case, however, didn't do that, lawyer Mike King said.
King dismissed prosecutor Alana Dwyer's previous submission that the case is based on the issue of consent, saying it was an issue of "he said, she said" instead.
King indicated his client, 28-year-old Max Vivian, would take the stand to provide evidence to that effect, refuting the evidence of the 30-year-old complainant, who testified earlier in the week.
Vivian has pleaded not guilty to sexual assault causing bodily harm. His jury trial started Monday.
The complainant told the court she and Vivian had been acquaintances and had reconnected online three years ago before moving to a texting relationship and organizing to meet for sex.
The woman took a taxi to Vivian's St. John's apartment from out of town Sept. 2, 2015, with the plan to stay for two nights. She told the court she and Vivian engaged in consensual sexual activity, but she asked him to stop when he grew aggressive, grabbing and biting her breasts.
She said he grabbed her by the hair and pushed her into his bedroom, forced her onto the bed and had intercourse with her despite her crying and repeatedly asking him to stop.
"I asked him to stop. He didn't," the woman testified through tears, saying she felt violated by Vivian's actions.
Vivian then left, she said, and she gathered her belongings and took photos of her injuries before leaving and walking to a nearby school, where she unsuccessfully called her ex-partner to pick her up. When her cellphone battery died, she said, she went back to Vivian's apartment and charged her phone enough to call a taxi to pick her up and take her out of town.
The woman said she went to the hospital in Clarenville two days later, and was transferred to St. Clare's in St. John's, where she underwent a sexual assault exam. Evidence presented in court by the attending nurses revealed extensive bruising on the woman's breasts and wrist; some of the bruises measured more than four inches long.
On Thursday, King called physician Dr. Richard Barter to testify. Barter had not treated the woman, but was hired by the defence to provide an expert opinion on her injuries after reviewing her medical reports and four photos of the bruising on her breasts — two taken by police and two taken by the woman.
Barter told the court that in his opinion, there was no evidence of bite marks on the woman's skin, and most of the bruising was consistent with suction.
"I would call these wounds hickeys," Barter wrote in his report for the court.
Upon cross-examination by Dwyer, Barter said a considerable amount of suction would have been needed to create the bruises, which he believed had been the result of "multiple events."
"If you weren't watching what was happening and you were in pain, you might think it was a bite," Barter said.
The complainant testified she had pre-booked a return trip to St. John's with a rural taxi company, and had been set to go home Sept. 4. She said that after she was assaulted, she called a St. John's taxi company and paid close to $150 to get home as soon as possible.
King called representatives of both taxi services to the stand Thursday. The employee of the St. John's-based company told the court she couldn't remember being asked by an RNC officer for the pickup records from Vivian's neighbourhood for the evening in question, and didn't recall telling the officer there was no record of any pickups at that time. The records for that time period have since been destroyed, she said. The woman said the fare for a ride from St. John's to the community where the woman lived would have cost $320.
The owner of the rural taxi company said his daily records from the period of time in question revealed a person with a name similar to the complainant had been picked up at her home and taken to Vivian's St. John's address Sept. 2. The records revealed the same person had been picked up at Vivian's address and taken back home two days later, paying $40 fare each way. The document wasn't a record of bookings, he explained, but a report compiled at the end of the day detailing the passengers and packages transported, and a breakdown of the moneys received.
Vivian is expected to take the stand when the trial resumes Friday morning.
Twitter: @tara_bradbury
Related stories:
Woman tells St. John's jury Max Vivan sexually assaulted her, left her with bruises and bite marks
Police officer grilled by defence as St. John's sexual assault case continues
