ST. JOHN'S, N.L. — The province’s Appellate Court has dismissed the appeal of a man who broke into his ex-girlfriend’s Mount Pearl home, sexually assaulted her, physically assaulted her and threatened her and her children.
Benji Barnes was convicted in 2019 and sentenced to 4 ½ years in prison for breaking and entering the woman’s home with the intention to commit a serious crime, sexual assault, choking, assault, unlawful confinement and three counts of uttering threats. He appealed all his convictions last fall and a panel of three Newfoundland and Labrador Court of Appeal judges gave their decision last Friday.
The original trial judge had made no mistake when he found Barnes guilty, they ruled, dismissing Barnes’ arguments that the Crown had not proven he had actually broken into the woman’s home and that the judge had unfairly scrutinized his evidence compared to that of the woman’s, resulting in unreasonable verdicts.
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The woman testified at Barnes’ trial she had fallen asleep watching TV with her children one night in October 2018 and woke to find Barnes standing next to her. After locking the children out of the room, he assaulted her, dragged her to the bathroom and back again, pinned her to the floor and sexually assaulted her, and threatened to kill her and her children, she said. The children heard the attack, and were screaming, she testified.
The woman said Barnes forced her to accompany him to her basement for a cigarette, where he handed her the house phone and directed her to call his cellphone and leave him a voicemail asking him to come over for a “booty call.” He told her to do a line of cocaine with him, she testified.
“I was never so scared in my life,” the woman told the court. “I honestly thought I could die.”
The woman said she noticed a broken basement window after Barnes left, and figured that’s how he got into her home. She called a neighbour, who called police. RNC officers escorted the woman to hospital, where she was found to have minor injuries to her neck, face, leg, shoulder, arm and chest. A DNA swab taken from her body was later found to match Barnes, while another swab contained male DNA in an amount too small to match to a specific profile.
“I was never so scared in my life. I honestly thought I could die.” — Victim
Barnes testified he had gone to the woman’s home that night because she had invited him there, having arranged the time a night earlier. He acknowledged having originally lied to police and saying he hadn’t been at the woman’s house at all that night.
Barnes said the sexual contact between them had been consensual and stopped when he saw a hickey on her neck from someone else.
“I wasn’t angry,” he testified. “I just didn't understand why she left me for a loser with no income, but I wasn’t angry.”
Trial Judge Mike Madden didn’t buy Barnes’ version of events, saying it was contradicted by other evidence and Facebook messages exchanged between Barnes and the woman earlier in the day. Barnes had told the woman he was coming over. She told him he wasn’t and demanded she leave him alone, saying she would get a court order forcing him to stay away.
On appeal, Barnes argued Madden had made no factual finding that he had broken in through the basement window. The three Court of Appeal judges — Justices Francis O’Brien, Derek Green and Lois Hoegg — said it didn’t matter how he had gotten in; he had entered the woman’s home without her consent.
“In this context, the absence of consent means there was no lawful justification or excuse for Mr. Barnes’ entry into the complainant’s residence, making it a deemed break and entry under the provisions of (the Criminal Code),” O’Brien wrote and the other appellate judges agreed.
Barnes argued on appeal that the woman’s testimony had several issues that should have led the trial judge to reject it. For example, an inconsistency when it came to the extent of the sexual assault, the fact that she had lied about her drug history and discussions with her child having influenced her testimony. The appeal judges pointed out the trial judge had acknowledged the discrepancies and had deemed them inconsequential. Barnes’ inconsistencies, however, were major and important, the judges wrote. While Barnes argued the trial judge had found he had a motive to lie, the appellate judges found no evidence that was true.
“The judge reviewed all the evidence and provided reasons for accepting the testimony of the complainant while rejecting Mr. Barnes’ evidence. The judge’s findings on credibility were anchored in the evidence,” they wrote, and not based on an uneven assessment of the testimony.”
As a result, the judges determined Barnes' convictions were not unreasonable and they dismissed his appeal.
Tara Bradbury reports on justice and the courts in St. John's
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