ST. JOHN'S, N.L. — If she missed anything with her words, spoken through tears on the witness stand in provincial court in St. John's Tuesday, the woman made up for it with actions.
Testifying at the trial of a 48-year-old man accused of sexually assaulting her friend during a concert at a George Street bar a year ago, the woman was emotional, explaining it was because she was nervous, not because she was having trouble with her evidence.
"I saw when he actually did grab her from behind," the woman told the court, demonstrating by turning to face the judge and making an underhanded upward swing with her right arm, her hand in a grabbing position. "She was standing up and she was kind of braced on one leg, because she likes to headbang a little bit, and he just came up and grabbed her underneath."
The woman said she and her friend had been among a large group of friends attending the show at the Rockhouse on the night in question, and they had all been fending off a man they didn't know who had been putting his arms around them. At one point he had put his arms around her, the witness said, and her boyfriend forced him off and told him to get lost.
"He came in and he was very intoxicated. He was putting his arms around everyone, all the girls." — Witness, friend of complainant
At another moment, one of women in the group pointed her finger in the man's face and said "Leave now."
"He came in and he was very intoxicated. He was putting his arms around everyone, all the girls," the woman testified. "We'd tell him to go away and he'd go away for 20 minutes, then come back.
"Everyone saw him. He wasn't just a normal person who walked in and casually watched the show," the woman explained, saying he stood out from the crowd because he was overdressed. "He walked in and started doing this."
The woman was the fourth witness called to testify at the sexual assault trial by prosecutor Jacqueline MacMillan. Earlier in the day, the complainant wrapped up her evidence in the courtroom.
She told the court she had been standing near the stage, taking pictures and dancing a bit when a man approached her and persistently put his arms around her. Each time she removed them and told him to stop, she said, but he wouldn't listen.
"One might say the music was too loud, but I'm a very loud person," the woman said. "I know I was heard, I just feel I wasn't respected at that point."
The man moved closer and at one point pressed his genitals against her buttocks, she said, and she told him to get away from her.
"The next thing I knew, I felt a hand. I identify it as a hand because I saw the arm come down, and then the hand went between my legs and grabbed me," the woman told the court. "I know it was the same person because he was the only one near me."
The complainant said her friend then told the man to leave, and he did.
"I felt very violated, and that's my perception of what happened to me," the woman testified.
"I felt very violated, and that's my perception of what happened to me." — Complainant
Defence lawyer Rosellen Sullivan focused her cross-examination of the complainant on the possibility that the woman's identification of the man who assaulted her was tainted by photos she had seen before she gave her statement to police.
The day after the alleged assault, the woman had posted on social media, hoping to identify the man responsible. She was subsequently sent a photo of a man at the show taken by a professional photographer, whom she identified as the man who assaulted her.
When the woman posted that picture online, she was given the name of the accused by a friend of a friend, who refused to speak to police. The complainant later discovered other photos of the same man on other social media sites, and kept all the photos on her phone for a couple of weeks before reporting the assault to police and giving them to the investigator.
Under Sullivan's cross-examination, the woman insisted she had formed her description of the man who had assaulted her based on her view of him that night, and not from the photos she had been given.
RNC Const. Jessica Browne, the lead investigator in the case, testified she was aware of the possibility that the woman's identification of the assailant could be tainted, so she sent one of the photos to her colleagues, asking if anyone could identify the man.
Another officer emailed back to say it looked like a guy she had been in a running club with a number of years ago. The name she provided to Browne matched the name the complainant had been given on social media.
Browne acknowledged she had told the complainant the man in the photo had been positively identified, admitting that giving the woman that confirmation was problematic.
"I will say that there are things that could have been done differently," Browne said.
Browne also acknowledged she had not contacted the Rockhouse to ask for surveillance footage as part of her investigation. The court heard the bar has an extensive surveillance camera system, which Sullivan alleged would have captured the assault.
In her closing submissions Tuesday afternoon, Sullivan told Judge David Orr, "There's no better example of contamination" of a suspect's identification.
"Once that happened, there is no way you can convict (the man)," she said.
MacMillan disagreed, arguing that the testimony of the complainant and her friend left no doubt that the accused was the man who committed the sexual assault. Both women had been clear in their evidence and had based their description on having spent hours in the bar with the man present, seeing him close up for at least 15 or 20 minutes in front of a well-lit stage.
"This wasn't an incident of fleeting glances," MacMillan said. "They had ample opportunity to observe him at such a level that they'd be able to recognize him at later times."
Orr will deliver his verdict Dec. 19.
Twitter: @tara_bradbury
