R v Renato Harris - Verdict Judgment

¶ ```html <table> <tr> <td>IN THE GRAND COURT OF THE CAYMAN ISLANDS</td> </tr> <tr> <td>CRIMINAL SIDE</td> </tr> <tr> <td>INDICTMENT NO：26/22</td> </tr> <tr> <td>THE KING</td> </tr> <tr> <td>v.</td> </tr> <tr> <td>RENATO ROLANDO HARRIS</td> </tr> <tr> <td>Appearances：</td> </tr> <tr> <td>Ms. Sarah Lewis for the Crown</td> </tr> <tr> <td>Mr. Keith Myers and Mr. Richard Barton，for the Defendant</td> </tr> <tr> <td>Before：</td> </tr> <tr> <td>Justice Marlene I. Carter (Actg.)</td> </tr> <tr> <td>Judge Alone Trial：</td> </tr> <tr> <td>5th，9th-23rd September 2022</td> </tr> <tr> <td>Closing submissions：</td> </tr> <tr> <td>4th November 2022</td> </tr> <tr> <td>Verdict：</td> </tr> <tr> <td>9th December 2022</td> </tr> <tr> <td>HEADNOTE</td> </tr> <tr> <td>Criminal Law-Trial by Judge Alone-Rape-Intoxication and consent</td> </tr> <tr> <td>VERDICT JUDGMENT</td> </tr> </table> ```
ANONYMITY OF COMPLAINANTS

¶ [1] Section 31 of the Criminal Procedure Code (CPC) (2021 Revision) deals with the "Anonymity of complainants in rape etc. cases and states:

¶ [31] (1) After a person is accused of a rape [etc.] offence, no matter likely to lead members of the public to identify a woman as the woman against whom the offence is alleged to have been committed shall be published in a written publication available to the public or be broadcast, except as authorised by a direction of the court. (2) ... (3) ... (4) ... (5) If any matter is published or broadcast in contravention of subsection (1), the following persons- (a) in the case of a publication in a newspaper or periodical, the proprietor, editor and publisher of the newspaper or periodical; (b) in the case of any other publication, the person who publishes it; (c) in the case of a broadcast, any person having functions, in relation to the programme in which it is made, corresponding to those of an editor of a newspaper, i. commits an offence and are each liable on summary conviction to a fine of one thousand dollars."

¶ [2] Pursuant to s.31 of the CPC, and for the avoidance of doubt: it is herein ordered that no matter likely to lead members of the public to identify the complainant in this case shall be published in any written publication available to the public or be broadcast. Anyone acting in contravention of this order commits an offence. # INDICTMENT The defendant was charged with two counts of rape contrary to section 27 of the Penal Code (2019 Revision). The facts are as follows:

¶ [1] On or about the 14th day of July 2018 at #28 Heather Lane, George Town, Grand Cayman, Cayman Islands, had unlawful sexual intercourse with [the Complainant] without her consent. --- **221209 Verdict Judgment: R v Renato Harris Coram: Carter J. (Actg.). Date: 9 December 2022** Page 2 of 21
```html <table> <tr> <td>1</td> <td>2.</td> <td>on or about the 14th day of July 2018 at #28 Heather Lane, George Town,</td> </tr> <tr> <td>2</td> <td>Grand Cayman, Cayman Islands, had unlawful sexual intercourse with ... [the</td> </tr> <tr> <td>3</td> <td>Complainant] without her consent, on an occasion other than the occasion in</td> </tr> <tr> <td>4</td> <td>count one.</td> </tr> <tr> <td>5</td> </tr> <tr> <td>6</td> <td>4.</td> <td>The defendant elected trial by Judge alone pursuant to Section 129 of the Criminal Procedure Code.</td> </tr> <tr> <td>7</td> </tr> <tr> <td>8</td> <td>THE LAW ON JUDGE ALONE TRIALS</td> </tr> <tr> <td>9</td> </tr> <tr> <td>10</td> <td>5.</td> <td>The Cayman Islands Court of Appeal (CICA) has given some guidance on the duties of a Judge in</td> </tr> <tr> <td>11</td> <td>a Judge Alone trial. In K. Richards v R' Rowe JA, stated:</td> </tr> <tr> <td>12</td> </tr> <tr> <td>13</td> <td>“When a trial judge sitting alone has advised himself to the applicable principles</td> </tr> <tr> <td>14</td> <td>of law, and given himself any necessary warning, he must indicate clearly in his</td> </tr> <tr> <td>15</td> <td>judgment his reasons for acting as he did in order to demonstrate that he has</td> </tr> <tr> <td>16</td> <td>acted with the requisite degree of caution in mind and has therefore heeded his</td> </tr> <tr> <td>17</td> <td>own warning. No specific form of words is necessary for this demonstration,</td> </tr> <tr> <td>18</td> <td>what is necessary is that the Judge’s mind upon the matter should be clearly</td> </tr> <tr> <td>19</td> <td>revealed.”</td> </tr> <tr> <td>20</td> </tr> <tr> <td>21</td> <td>6.</td> <td>In Randy Martin v R2, Mottley JA stated as follows:</td> </tr> <tr> <td>22</td> </tr> <tr> <td>23</td> <td>“A judge sitting in a criminal case without a jury, in rendering his decision and</td> </tr> <tr> <td>24</td> <td>giving his reasons for so concluding in not required to review every fact and to</td> </tr> <tr> <td>25</td> <td>detail each argument on which the prosecution and defence rely as if he were</td> </tr> <tr> <td>26</td> <td>summing up to a jury. The judge must set out the conclusion reached and make</td> </tr> <tr> <td>27</td> <td>clear the reasons for arriving at that conclusion. He is required to have regard</td> </tr> <tr> <td>28</td> <td>to any difficult or unusual points of law and to show how those points of law</td> </tr> <tr> <td>29</td> <td>has in any way impacted the conclusion that he has reached.”</td> </tr> <tr> <td>30</td> </tr> <tr> <td>31</td> <td>7.</td> <td>In the case of Dioncicio Salazar v The Queen3 the Caribbean Court of Justice (CCJ) quoted with</td> </tr> <tr> <td>32</td> <td>approval from the judgment of the Court of Appeal in Northern Ireland in R v Thompson4 in which</td> </tr> <tr> <td>33</td> <td>it was said of the duty of a judge sitting alone in a bench trial:</td> </tr> <tr> <td>34</td> </tr> <tr> <td>35</td> <td>“He to charge Unnot err if he</td> </tr> <tr> <td>36</td> <td>relevoposition and does not st</td> </tr> <tr> <td>37</td> <td>aspev or to give la act laymer rea long trnd</td> </tr> <tr> <td>38</td> <td>His therefore vate every</td> </tr> <tr> <td>39</td> <td>aspev or to give la act laymer rea long trnd</td> </tr> <tr> <td>40</td> <td>jury is not deveral to ins as the end ial, euner su</td> </tr> <tr> <td>41</td> <td>ct of the laytry (perhaps of</td> </tr> <tr> <td>42</td> <td>levant leg</td> </tr> <tr> <td>12001 CILR 496</td> </tr> <tr> <td>2CICA Crim. Appeal No. 2/2010 (Ind. 27/2009)</td> </tr> <tr> <td>3[2019] CCJ 15</td> </tr> <tr> <td>4[1977] NI 74</td> </tr> </table> 221209 Verdict Judgment: R v Renato Harris Coram: Carter J. (Actg.). Date: 9 December 2022 Page 3 of 21 ```
```html <table> <tr> <td>1</td> <td>balanced picture of the facts for decision by others. His task is to reach</td> </tr> <tr> <td>2</td> <td>conclusions and give reasons to support his view and, preferably, to notice any</td> </tr> <tr> <td>3</td> <td>difficult or unusual points of law in order that if there is an appeal it can be</td> </tr> <tr> <td>4</td> <td>seen how his view of the law informs his approach to the law."</td> </tr> <tr> <td>5</td> <td>8.</td> <td>The CCJ continued:</td> </tr> <tr> <td>6</td> <td>7</td> <td>“Equally, a judge sitting alone and without a jury is under no duty to “instruct”,</td> </tr> <tr> <td>8</td> <td>“direct” or “remind” him or herself concerning every legal principle or the</td> </tr> <tr> <td>9</td> <td>handling of evidence. This is in fact language that belongs to a jury trial (with</td> </tr> <tr> <td>10</td> <td>lay jurors) and not to a bench trial before a professional judge where the</td> </tr> <tr> <td>11</td> <td>procedural dynamics are quite different (although certainly not similar to those</td> </tr> <tr> <td>12</td> <td>of an inquisitorial or continental bench trial)."</td> </tr> <tr> <td>13</td> </tr> <tr> <td>14</td> <td>9.</td> <td>As in all criminal trials the burden is on the Crown to prove beyond a reasonable doubt that the</td> </tr> <tr> <td>15</td> <td>defendant committed the offences for which he is on trial.</td> </tr> <tr> <td>16</td> </tr> <tr> <td>17</td> <td>10.</td> <td>There is no burden on the defendant to prove that he is innocent. There is no onus on the defendant</td> </tr> <tr> <td>18</td> <td>to prove anything at all. The defendant has no obligation to prove that he is not guilty, or to explain</td> </tr> <tr> <td>19</td> <td>the evidence offered by the Prosecution.</td> </tr> <tr> <td>20</td> </tr> <tr> <td>21</td> <td>11.</td> <td>The burden of proof is on the Crown, to prove beyond a reasonable doubt that the defendant is</td> </tr> <tr> <td>22</td> <td>guilty of the offences for which he is charged on the Indictment.</td> </tr> <tr> <td>23</td> </tr> <tr> <td>24</td> <td>12.</td> <td>I will address my mind to the important or prominent aspects of the evidence in deciding the critical</td> </tr> <tr> <td>25</td> <td>issues in this case. I will not decide every single point that has been raised, only such matters that</td> </tr> <tr> <td>26</td> <td>will enable me to determine whether the charges on the indictment have been proved.</td> </tr> <tr> <td>27</td> </tr> <tr> <td>28</td> <td>13.</td> <td>I will have regard to the whole of the evidence that has been presented at trial and form my own</td> </tr> <tr> <td>29</td> <td>judgment about that evidence. The questions of fact at issue on this trial are for me to determine.</td> </tr> <tr> <td>30</td> </tr> <tr> <td>31</td> <td>14.</td> <td>If, having considered all the evidence, I have a reasonable doubt as to whether the defendant is</td> </tr> <tr> <td>32</td> <td>guilty or not, I must resolve that doubt in favour of the defendant and find him not guilty of the</td> </tr> <tr> <td>33</td> <td>offences for charged.</td> </tr> <tr> <td>34</td> <td>On the other hand, if I have</td> </tr> <tr> <td>35</td> <td>considered so no</td> </tr> <tr> <td>36</td> <td>doubt in my mind, and I am sure of the guilt of the defendant, then it will be equally my duty to</td> </tr> <tr> <td>37</td> <td>find him guilty as charged.</td> </tr> <tr> <td>38</td> </tr> </table> 221209 Verdict Judgment: R v Renato Harris Coram: Carter J. (Actg.). Date: 9 December 2022 Page 4 of 21 ```
```html <table> <tr> <td>THE LAW</td> </tr> <tr> <td>16.</td> <td>Section 127 of the Penal Code (2018 Revision) states:</td> </tr> <tr> <td>“(1) A man who rapes a woman or another man commits an offence.</td> </tr> <tr> <td>(2) A man commits rape if-</td> </tr> <tr> <td>(a) he has unlawful sexual intercourse (whether vaginal or anal) with another person who at the time of intercourse did not consent to it; and</td> </tr> <tr> <td>(b) at the time he knows that the other person does not consent to the intercourse or he is reckless as to whether the other person consents to it.</td> </tr> <tr> <td>(3) A man also commits rape if he induces a married woman to have sexual intercourse with him by impersonating her husband.</td> </tr> <tr> <td>(4) If, at a trial for a rape offence, the jury has to consider whether a man believed that the person was consenting to sexual intercourse, the presence or the absence of reasonable grounds for such belief is a matter to which the jury is to have regard in conjunction with any other relevant matters in considering whether he so believed.</td> </tr> <tr> <td>(5) In subsection (4) -</td> </tr> <tr> <td>“rape offence” means a rape or attempted rape, or aiding, abetting, counselling or procuring rape or attempted rape, or incitement to rape.</td> </tr> <tr> <td>(6) For the purposes of this section, a person is deemed not to have consented to sexual intercourse if that person’s acquiescence is obtained-</td> </tr> <tr> <td>(a) by threat of force or use of force;</td> </tr> <tr> <td>(b) by means of threats or intimidation of any kind;</td> </tr> <tr> <td>(c) by fear of bodily harm;</td> </tr> <tr> <td>(d) by means of false representations as to the nature of the act; or,</td> </tr> <tr> <td>(e) in the case of a married woman, by personating her husband.</td> </tr> <tr> <td>(7) On a trial for rape, the jury may find the accused guilty of-</td> </tr> <tr> <td>(a) sex use with a</td> </tr> <tr> <td>(b) sex with a</td> </tr> <tr> <td>(c) indec</td> </tr> <tr> <td>(d) administering drugs to obtain or facilitate intercourse; or</td> </tr> <tr> <td>(e) common assault.</td> </tr> </table> ```
```html <table> <tr> <td>1</td> <td>(8)</td> <td>The use in this Law of the word "man" without the addition of the word</td> </tr> <tr> <td>2</td> <td>“boy” or vice versa shall not prevent the provision applying to any person</td> </tr> <tr> <td>3</td> <td>to whom it would have applied if both words had been used and similarly</td> </tr> <tr> <td>4</td> <td>with the words "woman" and "girl".</td> </tr> <tr> <td>5</td> </tr> <tr> <td>6</td> </tr> <tr> <td>7</td> <td>17.</td> <td>The prosecution is not required to prove as an element of the offence of rape that the defendant did</td> </tr> <tr> <td>8</td> <td>not reasonably believe that the complainant was consenting. However, the issue will arise</td> </tr> <tr> <td>9</td> <td>where the defendant alleges that he believed that the complainant was consenting. The prosecution would</td> </tr> <tr> <td>10</td> <td>then have to show the absence of reasonable grounds for such belief and that the defendant did not</td> </tr> <tr> <td>11</td> <td>hold such reasonable belief that the complainant was consenting.</td> </tr> <tr> <td>12</td> </tr> <tr> <td>13</td> <td>14</td> <td>THE PROSECUTION CASE</td> </tr> <tr> <td>15</td> </tr> <tr> <td>16</td> <td>The evidence of the Complainant</td> </tr> <tr> <td>17</td> <td>18.</td> <td>The complainant's evidence in chief that she had gone out with 4 friends on the evening of the 13th</td> </tr> <tr> <td>18</td> <td>of July 2018. They were partying and drinking and towards the end of the evening they went to</td> </tr> <tr> <td>19</td> <td>the OBAR on Seven Mile Beach Road. She lost track of her friends as she entered the Bar but saw</td> </tr> <tr> <td>20</td> <td>the defendant there. They were acquaintances. She says it was never a friendship, but they had</td> </tr> <tr> <td>21</td> <td>exchanged numbers. She knew the defendant was a DJ.</td> </tr> <tr> <td>22</td> </tr> <tr> <td>23</td> <td>19.</td> <td>She texted one of her friends and realized that they had gone home and were not in the bar. She</td> </tr> <tr> <td>24</td> <td>stated that she did not want to go home yet. "I just wanted to like stay out and have fun". She felt</td> </tr> <tr> <td>25</td> <td>comfortable enough with the defendant and they were hanging out in the club. She stated that the</td> </tr> <tr> <td>26</td> <td>defendant bought her 2 drinks. She realized she was getting drunk. She asked the defendant to go</td> </tr> <tr> <td>27</td> <td>and get food and they left the club together. They went to Burger Shack. He told her that they</td> </tr> <tr> <td>28</td> <td>should go to Hell in West Bay.</td> </tr> <tr> <td>29</td> </tr> <tr> <td>30</td> <td>20.</td> <td>However, the defendant did not turn toward West Bay in the direction of Hell. He headed to</td> </tr> <tr> <td>31</td> <td>George Town instead and told the complainant when she questioned him something about his son.</td> </tr> <tr> <td>32</td> <td>He had to c</td> </tr> <tr> <td>33</td> <td>the defendane initially st</td> </tr> <tr> <td>34</td> <td>came back ang to tell me</td> </tr> <tr> <td>35</td> <td>come inside."</td> </tr> <tr> <td>36</td> </tr> </table> 221209 Verdict Judgment: R v Renato Harris Coram: Carter J. (Actg.). Date: 9 December 2022 Page 6 of 21 ```
```markdown # Transcript of Testimony

¶ [1] 21. She did go inside the house with the defendant. "Because at that point I don't have any recollection, I guess that's the point where I blacked out because I don't remember anything up until the next morning." She related that when she woke up later in the morning she was in the defendant's bed. She was naked and so was the defendant. She felt something wet between her legs. She stated. "My 1st initial reaction was to freak out – cus it like all these thoughts was running through my mind but I just freaked out and I told him just take me home."

¶ [2] 22. She related that the defendant was trying to get her to calm down saying "why are you like having all of this reaction and I was like just take me home..."

¶ [3] 23. The defendant then pushed her back on the bed and got on top of her. She remembers crying and screaming for him to get off her to no avail. He penetrated her with his penis. She was flailing under him and crying. She related that the defendant eventually stopped, and she rolled over on the bed crying. The defendant was speaking to her and asking her "why are you doing things to make me feel like a monster."

¶ [4] 24. She related that she told the defendant to take her to the pharmacy and then he could just drop her home. She did not know where she was. The defendant did take her to the pharmacy to get the plan B, birth control prescription. The defendant then dropped her off at the residence and she immediately took the Plan B pill.

¶ [5] 25. The complainant remembers calling two friends. She stated that she was feeling numb and in shock. She related that she also told an ex-boyfriend about what had happened the next day. The complainant also told a school counsellor about what had happened. She related that she took a pregnancy test the week after the incident and discovered she was pregnant. She had blocked the defendant's number on her phone. However, she unblocked the number and called the defendant to tell him that she was pregnant. "I sent him a text first and then he called me. ...he was just saying like what do you mean you are pregnant, didn't you take the Plan B, what we going to do and all that kinda of stuff and I was getting so angry I just hang up the phone on him. And then he texted me and blocked his number."

¶ [6] 26. The complainant eventually terminated the pregnancy. --- **221209 Verdict Judgment: R v Renato Harris Coram: Carter J. (Actg.), Date: 9 December 2022** Page 7 of 21 ```
The complainant elaborated on aspects of her evidence. She stated that she had 2-3 shots of tequila and maybe another drink while out with her friends earlier in the evening. She did not feel drunk at that time. She had two further drinks at OBAR. She related that after she had had the further drinks at OBAR she was at the point where she was about to throw up. The complainant stated that she and the defendant “made out” in his car after he had taken her to Burgar Shack. It was just kissing. She does not remember the defendant getting a phone call about his son and needing to go home. She does remember when they went to the defendant’s home and looking up the stairs, but she could not remember walking up the stairs. “That’s kinda where my memory like black out.” The complainant stated that she was advised by her friends to go to the police station, but she did not: “I was just like I just want to forget about it.” She related that she did not come forward until months later because what had been done could not be undone but she was concerned that she had had to make many sacrifices because of what had happened. Cross-Examination When the complainant was cross-examined by counsel for the defendant, she maintained her account of what had happened between herself and the defendant early on the morning of the 14th of July 2018. She was adamant that when the defendant had sexual intercourse with her that morning and that she did not consent to it. The complainant denied that she made the complaint because the defendant had suggested that he may not be the father of the child when she told him she was pregnant. She also denied that she had asked the defendant for money to go back to Canada. The complainant denied that she had deliberately deleted messages between herself and the defendant so as not to have the entire communication between them exposed. She stated that she had blocked him and deleted all messages because of what he had done to her, she wanted nothing to do with him. She stated that she only mentioned that she was pregnant after she had messaged the defendant as her friend and then had told him she was pregnant.
The evidence of Suzanne Johnson Suzanne Johnson was one of the complainant’s professors. She had not much contact with the complainant before the 25th July 2020, when she was supervising one of the complainant’s exams. The complainant was unable to complete the exam. Johnson observed that the complainant appeared agitated, anxious and tearful. The complainant was unable to complete the exam even after Johnson had given her time to pull herself together. Johnson questioned the complainant and asked her what was behind this. “She proceeded to tell me of the events of the 13th into 14th of July”. She related to Johnson about being at OBAR with the defendant and leaving with him to get something to eat. "In the car he told her that he needed to go back to his apartment in George Town. He asked her to come in while he did what he had to do which she did. She does not remember anything until she woke up the next morning, from when she entered the premises until the next morning. The following morning, she realized that she was naked in bed with discomfort and moisture there.... She stated that she knew that she had been raped. She was intoxicated. She had a blackout. She was horrified and wanted to go home. She asked him to drive her home and he refused. He raped her again. She tried to fend him off and begged him to stop and he overpowered her. ...he drove her home and kept asking her why she was so upset." The evidence of Jennifer Peters Peters is a close friend of the complainant who at the time of the incident was living in Grenada. She thought that she had spoken to the complainant by phone maybe two days after the incident. She related what the complainant told her: she had known and trusted the person who had raped her; he had offered to take her home and she had agreed to let him take her home in his car; he ended up taking her back to his place instead; when she got there, she was really tired, and she fell asleep; she got up the next morning and realized she was naked; She was shocked and did not remember taking her clothes off; The defendant was also naked and she started to ask him questions; He then began to force himself on top of her and he penetrated her. She was crying and asking him to stop but he continued. She was shocked and saddened. The evidence of Jennifer Peters continued: Peters was a complainant king and she had said to Reg been drinkwa. She believed that the complainant had said to Reg been drinkwa. She believed that the complainant had said to Reg been drinkwa. She believed that the complainant had said to Reg been drinkwa. 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```html <table> <tr> <td>1</td> <td>35.</td> <td>When Peters was cross-examined, she agreed that she gave her statement to the police 18 months after the incident. She had continued in contact with the complainant after July 2018. She had spoken to the complainant during the period July 2018 and the time of giving her statement in 2020. Peters agreed that she spoke to complainant a lot about the incident. It was suggested to Peters that the statement is compromised because of her various conversations with the complainant. Peters agreed that she could not be sure of exactly what was said in the first conversation with the complainant after the incident.</td> </tr> <tr> <td>9</td> <td>36.</td> <td>There was also the evidence of three police officers in the case. Officer Elizabeth Owens evidence was of becoming aware of the complaint while she was based at the Family Support Unit on the 26 of October 2018. She met with the complainant and obtained a report. The complainant provided her with copies of documents which all form part of the court's case and have been tendered as exhibits at trial. She referred the matter to the Criminal Investigation Department since it was not suitable for investigation by the Family Support Unit.</td> </tr> <tr> <td>16</td> <td>37.</td> <td>Former Police Officer Kendal Bryan was the officer who first investigated the complaint at The Criminal Investigation Department in November 2018. He arranged for the complaint to give an ABE interview which she did on the 16 November 2018. He also interviewed the defendant under caution in December 2018.</td> </tr> <tr> <td>21</td> <td>38.</td> <td>Officer Stephen Graham became involved in the investigation when the Officer Bryan left the RCIPS. His involvement was largely limited to collecting further statements and ensuring the submission of the file for ruling.</td> </tr> <tr> <td>25</td> <td>39.</td> <td>That was the extent of the evidence relied on by the prosecution to prove its case against the Defendant.</td> </tr> <tr> <td>28</td> <td>THE DEFENCE CASE</td> </tr> <tr> <td>30</td> <td>The defenda give eviden</td> <td>31evidence ofnt，I must st</td> <td>32crown has re</td> <td>33being no onus on the defendant to prove that his is innocent. If the Crown's evidence does not</td> </tr> <tr> <td>40.</td> <td>ant elected toce under</td> <td>31evidence ofnt，I must st</td> <td>32crown has re</td> <td>33make me sure of the Defendant's guilt then my verdict must be not guilty.</td> </tr> </table> ```
The evidence of the defendant

¶ [41] The defendant did not deny that sexual intercourse took place between himself and the complainant. He was adamant that sexual intercourse was consensual. The defendant denied both counts of rape.

¶ [42] The defendant’s evidence did not differ significantly from the complainant as to their initial interactions before the date of the incident. The date of the alleged incident would have been the third occasion on which the two met.

¶ [43] The defendant testified that he arrived at OBAR sometime after one am on the 14 July 2018. The defendant stated that as he was leaving the bar, after being there about half an hour to 45 minutes, two of his friends stopped him on the steps leading down from the bar. While speaking to his friends the complainant grabbed his hand and pulled him back into the bar. He related that they each had two drinks at the club. The defendant stated that during the time that they were in the club he and the complainant were dancing. He related that at this point the complainant was “quite fine.” He described the complainant as being steady and easy after having the two drinks. “What I mean “steady” was the person being okay, not drunk.” He explained: “when I said “easy” she is okay dancing, she is quite fine.”

¶ [44] The defendant stated that while dancing with the complainant in the club the complainant said that she wanted to get some food and they left the club together. They did not remain for longer than an hour together in the bar. They went downstairs to his car. They began to kiss in the car. The defendant described it as an intimate kiss. They were hugging and kissing. He stated that they were kissing for about 5 minutes in the car.

¶ [45] They then went to Burger Shack where he bought a burger for the complainant. He stated that the complainant stated to him then that she wanted to hang out she wanted to stay out longer.

¶ [46] The defence is that he invited the complainant with it, ...she came back to his apartment kissing him. He drove the complainant with him to his house and they crossed in the car in the parking lot. This went on for about 5-10 minutes. After the kissing stopped, they both got out of the car at the same time as he invited her inside. They both went up the stairs in the apartment to 221209 Verdict Judgment: R v Renato Harris Coram: Carter J. (Actg.), Date: 9 December 2022 Page 11 of 21
```html <table> <tr> <td>1</td> <td>his bedroom. Nothing was said as they entered the house and went up the stairs. The complainant</td> </tr> <tr> <td>2</td> <td>went up the stairs unaided. When they got into the defendant's bedroom they were kissing. The</td> </tr> <tr> <td>3</td> <td>defendant stated: "We were kissing and caressing and undressing each other." The complainant</td> </tr> <tr> <td>4</td> <td>did not react in any way as they undressed. The defendant stated that he and the complainant had</td> </tr> <tr> <td>5</td> <td>sexual intercourse and afterwards they went to sleep.</td> </tr> <tr> <td>6</td> <td>747.</td> <td>There was no conversation between them about having sex, "it just happened." The defendant</td> </tr> <tr> <td>8</td> <td>stated that he ejaculated inside the complainant. He recalled that sometime after 8 on the morning</td> </tr> <tr> <td>9</td> <td>of the 14th of July, he woke up and the complainant was already up. He related that the complainant</td> </tr> <tr> <td>10</td> <td>asked him if he had ejaculated inside of her last night when they had sex. He stated: "She became</td> </tr> <tr> <td>11</td> <td>a bit worried because she told me that she wasn't on any form of birth control." She asked where</td> </tr> <tr> <td>12</td> <td>she could get plan B the birth control morning after pill. He told her he would take her to the</td> </tr> <tr> <td>13</td> <td>pharmacy to get the pill, however the pharmacy would not have been open at that time. They</td> </tr> <tr> <td>14</td> <td>started kissing again, they had sexual intercourse again. He ejaculated in his hand this time to</td> </tr> <tr> <td>15</td> <td>show her that I did not ejaculate in her the second time. The complainant participated fully. They</td> </tr> <tr> <td>16</td> <td>were kissing before they had sexual intercourse. The complainant he described was "quite fine."</td> </tr> <tr> <td>17</td> <td>When asked to explain he stated: "She was okay, she was calm, wasn't upset, she was okay."</td> </tr> <tr> <td>18</td> <td>48.</td> <td>He related that he took the complainant to the pharmacy. They both went into the pharmacy and</td> </tr> <tr> <td>20</td> <td>the defendant paid for the birth control. He then dropped her back to her residence.</td> </tr> <tr> <td>21</td> <td>49.</td> <td>His next interaction with the complainant was when she contacted him via WhatsApp about a week</td> </tr> <tr> <td>23</td> <td>or two later. The complainant informed him that she was pregnant. He was surprised by her being</td> </tr> <tr> <td>24</td> <td>pregnant. He called the complainant, and they had a conversation. "I called her, and we had a</td> </tr> <tr> <td>25</td> <td>conversation on the phone as me saying how could you be pregnant what happened to the morning</td> </tr> <tr> <td>26</td> <td>after tablet. Then we got into an argument on the phone. She hanged up. Then we were back and</td> </tr> <tr> <td>27</td> <td>forth texting. She wanted me to give her money to go to Canada to throw it away... abort the</td> </tr> <tr> <td>28</td> <td>baby."</td> </tr> <tr> <td>30</td> <td>He says that d to turn ugl</td> <td>the r</td> <td>stion of wot</td> </tr> <tr> <td>31</td> <td>the pregna</td> <td>the complainant</td> <td>used the cry</td> <td>then.</td> </tr> <tr> <td>32</td> <td>and e</td> <td>lue; really ang</td> <td>shown nu</td> </tr> <tr> <td>33</td> <td>51.</td> <td>The defendant stated that he may not have given a full account when he was interviewed as he did</td> </tr> <tr> <td>34</td> <td>in court because he was still in shock at being arrested for the offence of rape. He was nervous</td> </tr> </table> ```
```html <table> <tr> <td>1</td> <td>and there as a lot of things that he did not mention especially about his father being in the house</td> </tr> <tr> <td>2</td> <td>while he was there with the complainant and the complainant asking him for cash.</td> </tr> <tr> <td>4</td> <td>52.</td> <td>Cross-Examination</td> </tr> <tr> <td>5</td> <td>In cross examination the defendant denied that he was a ladies’ man. He denied that when he said</td> </tr> <tr> <td>6</td> <td>the complainant looked like someone who wanted to have fun that he meant that she was drunk or</td> </tr> <tr> <td>7</td> <td>tipsy. He denied that he had expectations of the night after drinking and dancing with the</td> </tr> <tr> <td>8</td> <td>complainant; that he expected to have the evening culminate with sex. He denied that the drinks</td> </tr> <tr> <td>9</td> <td>that he bought for the complainant were unusually large. He stated that they were in regular cups.</td> </tr> <tr> <td>10</td> <td>The defendant stated that the complainant appeared to be sober, that “she never seem like anybody</td> </tr> <tr> <td>11</td> <td>that was drunk when she pulled me back in the club.” He denied that the complainant was very</td> </tr> <tr> <td>12</td> <td>drunk by the time she was at Burger Shack. He stated that he would actually notice if somebody</td> </tr> <tr> <td>13</td> <td>was drunk or not.</td> </tr> <tr> <td>15</td> <td>53.</td> <td>He denied that he had ever suggested to the complainant that they should visit Hell or that there</td> </tr> <tr> <td>16</td> <td>was any conversation about that. He maintained his evidence that the complainant had agreed to</td> </tr> <tr> <td>17</td> <td>go to his house, that she was not incapacitated. He agreed that the complainant did not ask him to</td> </tr> <tr> <td>18</td> <td>use a condom. He denied that this was because she was too drunk to have had that conversation</td> </tr> <tr> <td>19</td> <td>with him.</td> </tr> <tr> <td>21</td> <td>54.</td> <td>He stated that the reason that he had ejaculated in his hand was not to mock the complainant: “the</td> </tr> <tr> <td>22</td> <td>reason for that happening [was] because we had sex again in the morning and that was to prove</td> </tr> <tr> <td>23</td> <td>to show okay because we had a conversation before about getting the morning after tablet so we</td> </tr> <tr> <td>24</td> <td>had sex the second time hence the reason...to show her I did not ejaculate inside her because we</td> </tr> <tr> <td>25</td> <td>were heading to the pharmacy after this.”</td> </tr> <tr> <td>27</td> <td>55.</td> <td>It was suggested to the defendant that he had given two different accounts of what had happened</td> </tr> <tr> <td>28</td> <td>that evening. He admitted that he had not said in interview that he had ejaculated into his hand</td> </tr> <tr> <td>29</td> <td>after the 2nd instance of sexual intercourse. The defendant stated that he was not changing his</td> </tr> <tr> <td>30</td> <td>story. He had have legal</td> </tr> <tr> <td>31</td> <td>56.</td> <td>int was cross about them</td> </tr> <tr> <td>32</td> <td>W</td> <td>the compt</td> </tr> <tr> <td>33</td> <td>Exhibit 1. He stated that as far as he was concerned when the complainant said that she hoped that</td> </tr> </table> ```
```html <table> <tr> <td>1</td> <td>he would never bring this much pain to another woman that she was referring to the fact that she</td> </tr> <tr> <td>2</td> <td>was pregnant and because he had raised the issue of whether it was his.</td> </tr> <tr> <td>3</td> <td>57.</td> <td>He was asked to explain what he meant when he replied: “we was both drinking”： "I was trying</td> </tr> <tr> <td>4</td> <td>5.</td> <td>to say comforting words because I was being attacked, to say, we both know we had sex so why</td> </tr> <tr> <td>5</td> <td>6.</td> <td>place the blame on me alone that what it meant."</td> </tr> <tr> <td>7</td> <td>58.</td> <td>The defendant stated that CE1 does not reflect the full interaction between the parties on the date</td> </tr> <tr> <td>8</td> <td>9.</td> <td>in question, that there were also calls on WhatsApp and texts between them.</td> </tr> <tr> <td>10</td> <td>11</td> <td>59.</td> <td>He admitted that he did not mention in interview about the complainant seeking money for an</td> </tr> <tr> <td>12</td> <td>abortion. He admitted that he did not mention in interview that his father was at home at the</td> </tr> <tr> <td>13</td> <td>time that he and the complainant came back to the house. He again stated that it was the seriousness</td> </tr> <tr> <td>14</td> <td>of the allegation against him that caused him not to mention these facts.</td> </tr> <tr> <td>15</td> </tr> <tr> <td>16</td> <td>COURT'S REASONING AND CONCLUSIONS</td> </tr> <tr> <td>17</td> </tr> <tr> <td>18</td> <td>60.</td> <td>During the course of the closing speeches, both counsel were agreed that the court's verdict was</td> </tr> <tr> <td>19</td> <td>to be determined on whose evidence the court accepted as being true, the complainant or the</td> </tr> <tr> <td>20</td> <td>defendant. There was no other evidence that went conclusively to the determination of whether</td> </tr> <tr> <td>21</td> <td>sexual intercourse between the complainant and the defendant was consensual or not. This is a</td> </tr> <tr> <td>22</td> <td>case which rests entirely on consent.</td> </tr> <tr> <td>23</td> </tr> <tr> <td>24</td> <td>61.</td> <td>The defendant does not deny that he had sexual intercourse with the complainant. However, he</td> </tr> <tr> <td>25</td> <td>asserts that the complainant did consent to each act of intercourse in respect of each of the count</td> </tr> <tr> <td>26</td> <td>of the indictment.</td> </tr> <tr> <td>27</td> </tr> <tr> <td>28</td> <td>62.</td> <td>At the outset, I have in mind the following, directed at juries but also relevant in this case where I</td> </tr> <tr> <td>29</td> <td>am the finder of fact: "The experience of judges who try sexual offences is that an image of</td> </tr> <tr> <td>30</td> <td>stereotypical and demeaning behaviour our by a victim can be an</td> </tr> <tr> <td>31</td> <td>such as rape members of the police force leading of</td> </tr> <tr> <td>32</td> <td>injustice. That experience has been gained by judges, expert in the area, presiding over many such</td> </tr> <tr> <td>33</td> <td>trials during which guilt has been established but in which the behaviour and demeanour of</td> </tr> <tr> <td>34</td> <td>complainants and defendants, both during the incident giving rise to the charge and in evidence,</td> </tr> </table> 221209 Verdict Judgment: R v Renato Harris Coram: Carter J. (Actg.). Date: 9 December 2022 Page 14 of 21 ```
```html <table> <tr> <td>1</td> <td>has been widely variable. Judges have, as a result of their experience, in recent years adopted the</td> </tr> <tr> <td>2</td> <td>course of cautioning juries against applying stereotypical images of how an alleged victim or an</td> </tr> <tr> <td>3</td> <td>alleged perpetrator of a sexual offence ought to have behaved at the time ought to appear while</td> </tr> <tr> <td>4</td> <td>giving evidence, and to judge the evidence on its intrinsic merits. This is not to invite juries to</td> </tr> <tr> <td>5</td> <td>suspend their own judgement but to approach the evidence without prejudice.5</td> </tr> <tr> <td>6</td> <td>7</td> <td>Count 1</td> </tr> <tr> <td>8</td> <td>63.</td> <td>The issue of consent centers on whether the complainant had the freedom and capacity to give</td> </tr> <tr> <td>9</td> <td>consent at the relevant time in relation to the first of the offences charged, that is, ostensible</td> </tr> <tr> <td>10</td> <td>consent at the time of penetration.</td> </tr> <tr> <td>11</td> <td>12</td> <td>64.</td> <td>This court must consider whether the complainant had the capacity to make a choice about whether</td> </tr> <tr> <td>13</td> <td>to take part in the sexual activity at the time in question. The complainant’s evidence regarding</td> </tr> <tr> <td>14</td> <td>the first of the allegations of rape was that she was not conscious when sexual intercourse took</td> </tr> <tr> <td>15</td> <td>place because she was drunk and had blacked out. The question for the court is whether the</td> </tr> <tr> <td>16</td> <td>complainant’s evidence in the circumstances of this case showed a lack of consent. Incapacitation</td> </tr> <tr> <td>17</td> <td>through drink may result in a lack of consent.</td> </tr> <tr> <td>18</td> <td>19</td> <td>65.</td> <td>The complainant’s evidence was that after she and the defendant arrived at his apartment, he had</td> </tr> <tr> <td>20</td> <td>first gone into the house. While he was in the house, the complainant says that she could feel</td> </tr> <tr> <td>21</td> <td>herself start to get drunk. She initially stayed in the car. The defendant went into his home, but he</td> </tr> <tr> <td>22</td> <td>came back and was “trying to tell me oh, something like let’s forget about West Bay, let’s go in-</td> </tr> <tr> <td>23</td> <td>come inside.”</td> </tr> <tr> <td>24</td> <td>25</td> <td>66.</td> <td>She did go inside the house with the defendant.</td> </tr> <tr> <td>26</td> <td>27</td> <td>28</td> <td>29</td> <td>30</td> <td>31</td> <td>32</td> <td>33</td> <td>34</td> <td>35</td> <td>36</td> <td>37</td> <td>38</td> <td>39</td> <td>40</td> <td>41</td> <td>42</td> <td>43</td> <td>44</td> <td>45</td> <td>46</td> <td>47</td> <td>48</td> <td>49</td> <td>50</td> <td>51</td> <td>52</td> <td>53</td> <td>54</td> <td>55</td> <td>56</td> <td>57</td> <td>58</td> <td>59</td> <td>60</td> <td>61</td> <td>62</td> <td>63</td> <td>64</td> <td>65</td> <td>66</td> <td>67</td> <td>68</td> <td>69</td> <td>70</td> <td>71</td> <td>72</td> <td>73</td> <td>74</td> <td>75</td> <td>76</td> <td>77</td> <td>78</td> <td>79</td> <td>80</td> <td>81</td> <td>82</td> <td>83</td> <td>84</td> <td>85</td> <td>86</td> <td>87</td> <td>88</td> <td>89</td> <td>90</td> <td>91</td> <td>92</td> <td>93</td> <td>94</td> <td>95</td> <td>96</td> <td>97</td> <td>98</td> <td>99</td> <td>100</td> <td>101</td> <td>102</td> <td>103</td> <td>104</td> <td>105</td> <td>106</td> <td>107</td> <td>108</td> <td>109</td> <td>110</td> <td>111</td> <td>112</td> <td>113</td> <td>114</td> <td>115</td> <td>116</td> <td>117</td> <td>118</td> <td>119</td> <td>120</td> <td>121</td> <td>122</td> <td>123</td> <td>124</td> <td>125</td> <td>126</td> <td>127</td> <td>128</td> <td>129</td> <td>130</td> <td>131</td> <td>132</td> <td>133</td> <td>134</td> <td>135</td> <td>136</td> <td>137</td> <td>138</td> <td>139</td> <td>140</td> <td>141</td> <td>142</td> <td>143</td> <td>144</td> <td>145</td> <td>146</td> <td>147</td> <td>148</td> <td>149</td> <td>150</td> <td>151</td> <td>152</td> <td>153</td> <td>154</td> <td>155</td> <td>156</td> <td>157</td> <td>158</td> <td>159</td> <td>160</td> <td>161</td> <td>162</td> <td>163</td> <td>164</td> <td>165</td> <td>166</td> <td>167</td> <td>168</td> <td>169</td> <td>170</td> <td>171</td> <td>172</td> <td>173</td> <td>174</td> <td>175</td> <td>176</td> <td>177</td> <td>178</td> <td>179</td> <td>180</td> <td>181</td> <td>182</td> <td>183</td> <td>184</td> <td>185</td> <td>186</td> <td>187</td> <td>188</td> <td>189</td> <td>190</td> <td>191</td> <td>192</td> <td>193</td> <td>194</td> <td>195</td> <td>196</td> <td>197</td> <td>198</td> <td>199</td> <td>200</td> <td>201</td> <td>202</td> <td>203</td> <td>204</td> <td>205</td> <td>206</td> <td>207</td> <td>208</td> <td>209</td> <td>210</td> <td>211</td> <td>212</td> <td>213</td> <td>214</td> <td>215</td> <td>216</td> <td>217</td> <td>218</td> <td>219</td> <td>220</td> <td>221</td> <td>222</td> <td>223</td> <td>224</td> <td>225</td> <td>226</td> <td>227</td> <td>228</td> <td>229</td> <td>230</td> <td>231</td> <td>232</td> <td>233</td> <td>234</td> <td>235</td> <td>236</td> <td>237</td> <td>238</td> <td>239</td> <td>240</td> <td>241</td> <td>242</td> <td>243</td> <td>244</td> <td>245</td> <td>246</td> <td>247</td> <td>248</td> <td>249</td> <td>250</td> <td>251</td> <td>252</td> <td>253</td> <td>254</td> <td>255</td> <td>256</td> <td>257</td> <td>258</td> <td>259</td> <td>260</td> <td>261</td> <td>262</td> <td>263</td> <td>264</td> <td>265</td> <td>266</td> <td>267</td> <td>268</td> <td>269</td> <td>270</td> <td>271</td> <td>272</td> <td>273</td> <td>274</td> <td>275</td> <td>276</td> <td>277</td> <td>278</td> <td>279</td> <td>280</td> <td>281</td> <td>282</td> <td>283</td> <td>284</td> <td>285</td> <td>286</td> <td>287</td> <td>288</td> <td>289</td> <td>290</td> <td>291</td> <td>292</td> <td>293</td> <td>294</td> <td>295</td> <td>296</td> <td>297</td> <td>298</td> <td>299</td> <td>300</td> <td>301</td> <td>302</td> <td>303</td> <td>304</td> <td>305</td> <td>306</td> <td>307</td> <td>308</td> <td>309</td> <td>310</td> <td>311</td> <td>312</td> <td>313</td> <td>314</td> <td>315</td> <td>316</td> <td>317</td> <td>318</td> <td>319</td> <td>320</td> <td>321</td> <td>322</td> <td>323</td> <td>324</td> <td>325</td> <td>326</td> <td>327</td> <td>328</td> <td>329</td> <td>330</td> <td>331</td> <td>332</td> <td>333</td> <td>334</td> <td>335</td> <td>336</td> <td>337</td> <td>338</td> <td>339</td> <td>340</td> <td>341</td> <td>342</td> <td>343</td> <td>344</td> <td>345</td> <td>346</td> <td>347</td> <td>348</td> <td>349</td> <td>350</td> <td>351</td> <td>352</td> <td>353</td> <td>354</td> <td>355</td> <td>356</td> <td>357</td> <td>358</td> <td>359</td> <td>360</td> <td>361</td> <td>362</td> <td>363</td> <td>364</td> <td>365</td> <td>366</td> <td>367</td> <td>368</td> <td>369</td> <td>370</td> <td>371</td> <td>372</td> <td>373</td> <td>374</td> <td>375</td> <td>376</td> <td>377</td> <td>378</td> <td>379</td> <td>380</td> <td>381</td> <td>382</td> <td>383</td> <td>384</td> <td>385</td> <td>386</td> <td>387</td> <td>388</td> <td>389</td> 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```html <table> <tr> <td>1</td> <td>“my 1st initial reaction was to freak out - cus it like all these thoughts was</td> </tr> <tr> <td>2</td> <td>running through my mind but I just freaked out and I told him just take me</td> </tr> <tr> <td>3</td> <td>home.”</td> </tr> <tr> <td>4</td> <td>.....</td> </tr> <tr> <td>5</td> <td>“I don’t remember what words were saying or the attraction that led me to</td> </tr> <tr> <td>6</td> <td>eventually like get inside the house. Because at that point I don’t have any</td> </tr> <tr> <td>7</td> <td>recollection. I guess that’s the point where I blacked out because I don’t</td> </tr> <tr> <td>8</td> <td>remember anything until the next morning.</td> </tr> <tr> <td>9</td> <td>....</td> </tr> <tr> <td>10</td> <td>I don’t remember anything until waking up and I was in his bed.</td> </tr> <tr> <td>11</td> <td>68.</td> <td>Later in her evidence the complainant related that she remembered when they went to the</td> </tr> <tr> <td>12</td> <td>defendant’s home and looking up the stairs, but she could not remember walking up the stairs.</td> </tr> <tr> <td>13</td> <td>“That’s kind [of] where my memory like blackout”</td> </tr> <tr> <td>14</td> </tr> <tr> <td>15</td> <td>69.</td> <td>The evidence of the complainant was that she was drinking with friends before going to OBAR.</td> </tr> <tr> <td>16</td> <td>The complainant desci red that she had 2-3 shots of tequila and maybe another drink, cranberry</td> </tr> <tr> <td>17</td> <td>and vodka while out with her friends. She did not feel drunk at that time. She had two further</td> </tr> <tr> <td>18</td> <td>drinks at OBAR. She related that after she had had the further drinks at OBAR she was at the</td> </tr> <tr> <td>19</td> <td>point where she was about to throw up. In answer to questions which sought to clarify this evidence</td> </tr> <tr> <td>20</td> <td>in the ABE interview the complaint stated that on a scale of 1-10 she was at a 7 for drunkenness</td> </tr> <tr> <td>21</td> <td>while at OBAR with the defendant she was at 10 on that</td> </tr> <tr> <td>22</td> <td>scale for drunkenness.</td> </tr> <tr> <td>23</td> </tr> <tr> <td>24</td> <td>70.</td> <td>The following from R v Khamki [2013] EWCA 2335 is relevant:</td> </tr> <tr> <td>25</td> </tr> <tr> <td>26</td> <td>27</td> <td>“a. A person consents if he or she agrees by choice and has the freedom and</td> </tr> <tr> <td>28</td> <td>capacity to make that choice,</td> </tr> <tr> <td>29</td> <td>b. When a person is unconscious, there is no such freedom or capacity to</td> </tr> <tr> <td>30</td> <td>choose,</td> </tr> <tr> <td>31</td> <td>c.</td> </tr> <tr> <td>32</td> <td>d. A person can still have the capacity to make a choice and have sex even when</td> </tr> <tr> <td>33</td> <td>they have had a lot to drink (thereby consenting to the act),</td> </tr> <tr> <td>34</td> <td>e. Alcohol can make people less inhibited than when they are sober and</td> </tr> <tr> <td>35</td> <td>has the choi ot to have sex</td> </tr> <tr> <td>36</td> <td>f. drink a woman, but the</td> </tr> <tr> <td>37</td> <td>everybody re whether or</td> </tr> <tr> <td>38</td> <td>g. if it consenti</td> </tr> <tr> <td>39</td> <td>3c sexual thump would nong</td> </tr> <tr> <td>40</td> <td>consider of</td> </tr> <tr> <td>41</td> <td>if through an has ter n</td> </tr> <tr> <td>42</td> <td>n. In this particular case, the jury would have to consider the evidence of M to</td> </tr> <tr> <td>43</td> <td>determine what her state of consciousness or unconsciousness was and to</td> </tr> <tr> <td>44</td> <td>determine what effect this would have on her capacity to consent,</td> </tr> </table> ```
```html <table> <tr> <td>1</td> <td>i.</td> <td>If it is determined that the complainant did not have the capacity to make a choice, it would then have to be considered whether she did or may have consented to sexual intercourse”.</td> </tr> <tr> <td>Count 2</td> </tr> <tr> <td>71.</td> <td>The complainant’s evidence regarding the second incidence of non-consensual sexual intercourse was that after she awakened on the morning of the 14th July and found herself naked in bed with the defendant, she questioned the defendant about whether he had ejaculated inside her. The defendant confirmed that he had. The complainant began to “freak out” and the defendant was trying to calm her down. She described however that he was coming on to her again, that he got up on top of her and that he penetrated her vagina with his penis.</td> </tr> <tr> <td>72.</td> <td>Her evidence as that she was crying and screaming while he did so, and she was telling him to get off her, but he did not stop. He did eventually move off of her. The defendant was speaking to her and asking her why are you doing things to make me feel like a monster. The complainant’s evidence is that she did not consent to this act of sexual intercourse and that at the time she communicated this to the defendant. The complainant’s evidence was that after this incident she was crying and in shock. She stated that she was disoriented.</td> </tr> <tr> <td>Recent complaint</td> </tr> <tr> <td>73.</td> <td>Apart from the complainant’s account the other evidence for the court’s consideration was a copy of a message tendered and exhibited at trial, a copy of an email addressed to an ex-boyfriend which the complainant stated she wrote on her phone on the day after the incident, the night of the 15th of July. The Complainant’s account in that email is consistent with the account that she gave in evidence in chief at trial.</td> </tr> <tr> <td>74.</td> <td>In this email she stated: “I don’t remember what he said or how I ended up in the house. All I remember was waking up the next morning. I was naked and he was naked, and I felt something wet between my legs. So, I start freaking out because I knew what had happened. So, he’s trying to get me to calm down. So, I tell him just to take me to the pharmacy so I can get a plan b and let me go homewashing up of I</td> </tr> <tr> <td>31</td> <td>me go homewashing up of I</td> </tr> <tr> <td>32</td> <td>me leave. Pushed me a</td> </tr> <tr> <td>33</td> <td>And then he finishes, then he starts getting</td> </tr> <tr> <td>34</td> <td>him seem like a monster and a rapist. He finally decides to take me to get the morning after pill and then he dropped me home.”</td> </tr> </table> ``` ```latex \begin{table} \begin{tabular}{|c|c|} \hline 1 & i. If it is determined that the complainant did not have the capacity to make a choice, it would then have to be considered whether she did or may have consented to sexual intercourse”. \\ \hline Count 2 & \\ \hline

¶ [71] & The complainant’s evidence regarding the second incidence of non-consensual sexual intercourse was that after she awakened on the morning of the 14th July and found herself naked in bed with the defendant, she questioned the defendant about whether he had ejaculated inside her. The defendant confirmed that he had. The complainant began to “freak out” and the defendant was trying to calm her down. She described however that he was coming on to her again, that he got up on top of her and that he penetrated her vagina with his penis. \\ \hline

¶ [72] & Her evidence as that she was crying and screaming while he did so, and she was telling him to get off her, but he did not stop. He did eventually move off of her. The defendant was speaking to her and asking her why are you doing things to make me feel like a monster. The complainant’s evidence is that she did not consent to this act of sexual intercourse and that at the time she communicated this to the defendant. The complainant’s evidence was that after this incident she was crying and in shock. She stated that she was disoriented. \\ \hline Recent complaint & \\ \hline

¶ [73] & Apart from the complainant’s account the other evidence for the court’s consideration was a copy of a message tendered and exhibited at trial, a copy of an email addressed to an ex-boyfriend which the complainant stated she wrote on her phone on the day after the incident, the night of the 15th of July. The Complainant’s account in that email is consistent with the account that she gave in evidence in chief at trial. \\ \hline

¶ [74] & In this email she stated: “I don’t remember what he said or how I ended up in the house. All I remember was waking up the next morning. I was naked and he was naked, and I felt something wet between my legs. So, I start freaking out because I knew what had happened. So, he’s trying to get me to calm down. So, I tell him just to take me to the pharmacy so I can get a plan b and let me go homewashing up of I \\ \hline 31 & me go homewashing up of I \\ \hline 32 & me leave. Pushed me a \\ \hline 33 & And then he finishes, then he starts getting \\ \hline 34 & him seem like a monster and a rapist. He finally decides to take me to get the morning after pill and then he dropped me home.” \\ \hline \end{tabular} \end{table} ``` ```latex \begin{table} \begin{tabular}{|c|c|} \hline 221209 Verdict Judgment: R v Renato Harris Coram: Carter J. (Actg.). Date: 9 December 2022 & \\ \hline Page 17 of 21 & \\ \hline \end{tabular} \end{table} ```
```html <table> <tr> <td>1</td> </tr> <tr> <td>2</td> <td>75.</td> <td>In assessing whether this evidence lends support to the consistency of the complainant's account I</td> </tr> <tr> <td>3</td> <td>bear in mind that there is no independent confirmation of when this message was in fact sent by</td> </tr> <tr> <td>4</td> <td>the complainant on the date identified. The recipient of the message did not give evidence at trial.</td> </tr> <tr> <td>5</td> <td>The message was copied into an email to Officer Owens in November 2018.</td> </tr> <tr> <td>6</td> </tr> <tr> <td>7</td> <td>76.</td> <td>I do not accept that the evidence of Jennifer Peters can be viewed as evidence of recent</td> </tr> <tr> <td>8</td> <td>complainant. Although the complainant spoke to her soon after the incident, the witness</td> </tr> <tr> <td>9</td> <td>was unclear as to what may have been said. It was highlighted in cross-examination of this witness</td> </tr> <tr> <td>10</td> <td>that the statement to the police given some eighteen (18) months after the incident was one that</td> </tr> <tr> <td>11</td> <td>was given at a point where she and the complainant had discussed the matter a number of times</td> </tr> <tr> <td>12</td> <td>and she could not be sure what the complainant had in fact said to her immediately after the</td> </tr> <tr> <td>13</td> <td>incident and what parts of that statement was assimilated by her from her various conversations</td> </tr> <tr> <td>14</td> <td>with the complainant between the time of the incident and the time of giving her witness statement.</td> </tr> <tr> <td>15</td> </tr> <tr> <td>16</td> <td>77.</td> <td>On the 25th of July 2018 the complainant made a report to one of her professors Dr. Suzanne</td> </tr> <tr> <td>17</td> <td>Johnson. She was unable to take an exam because she was upset and anxious. The complainant's</td> </tr> <tr> <td>18</td> <td>account to Suzanne Johnson is as she stated in her evidence in chief and lends support to</td> </tr> <tr> <td>19</td> <td>the consistency of her account of the incident.</td> </tr> <tr> <td>20</td> </tr> <tr> <td>21</td> <td>Further communications between the parties</td> </tr> <tr> <td>22</td> <td>78.</td> <td>In the WhatsApp communication， Court Exhibit 1， the complainant accepts that this evidence is</td> </tr> <tr> <td>23</td> <td>but part of the communication between herself and the defendant in the weeks after the incident.</td> </tr> <tr> <td>24</td> <td>The complainant informs the defendant that she is pregnant， and the defendant responds "WTF".</td> </tr> <tr> <td>25</td> <td>There is a lapse in time between messages. Both parties have testified that they were speaking and</td> </tr> <tr> <td>26</td> <td>texting each other during that interval. The WhatsApp message shows the complainant saying to</td> </tr> <tr> <td>27</td> <td>the defendant： "No matter what I do with this child I just want to let you know you'll never be a</td> </tr> <tr> <td>28</td> <td>part of its life or mine. I hope you never bring this much pain to another woman as you have to</td> </tr> <tr> <td>29</td> <td>me. Have a good life."</td> </tr> <tr> <td>30</td> <td>It was suggested that the complainant's</td> </tr> <tr> <td>31</td> <td>message</td> </tr> <tr> <td>32</td> <td>suggests the relationship</td> </tr> <tr> <td>33</td> <td>between the complainant and the defendant was</td> </tr> <tr> <td>34</td> <td>the tone of：</td> </tr> <tr> <td>35</td> <td>It was like talking to a girlfriend. Counsel asked the court to consider whether it as realistic， it seemed to</td> </tr> <tr> <td>36</td> <td>suggest that the man who raped you would be part of your life. It was submitted that the message</td> </tr> <tr> <td>37</td> <td>reflects the defendant's shock at being told of the pregnancy and that the court should view it as</td> </tr> </table> 221209 Verdict Judgment：R v Renato Harris Coram：Carter J. (Actg.) Date：9 December 2022 Page 18 of 21 ```
Verdict Judgment: R v Renato Harris Coram: Carter J. (Actg.) Date: 9 December 2022 Page 19 of 21

¶ [1] being reflective of the conversation between consenting adults, that the word rape was never used by the complainant in the message.

¶ [80] The complainant's account was questioned in cross-examination as to: "Why were you even in dialogue on the telephone call with a man on your account that forcibly horrendously held you down and raped you? Her response was that she was advised by her friend to do so at the time. She stated further: "... the reason why I called him was to show the consequences of what he did to me without my consent upon the emotional and psychological damages and the physical consequence of what he did." When she was asked directly why she did not mention anything about being raped in the message she agreed that she did not mention it explicitly. She stated that when she wrote about bringing this much pain to another woman, she was referring to sexual assault.

¶ [81] Both parties testified that apart from Court Exhibit 1 there was further communication between them after the complainant informed the defendant that she was pregnant. Both parties have given evidence of what transpired, and their accounts are not entirely dissimilar except as regard the complainant asking the defendant for money and whether the defendant has inquired whether the complainant was sure that the child was his. I am satisfied that despite not having these texts or a transcript of telephone calls, there is sufficient evidence before me regarding the issues that I must determine for me to arrive at a verdict in this case.

¶ [82] I bear in mind that experience shows that people react differently to the trauma of a serious sexual assault, that there is no one classic response, and this extends to responses or reactions during the incident itself. While some complainants may complain immediately others feel shame and shock and do not complain for some time; and that a late complaint does not necessarily mean it is a false complaint.

¶ [83] I have considered all the evidence presented at this trial, particularly that of the complainant and the defendant. I have considered the defendant's account of the incident. The first count centered on the issue whether the complainant was so drunk that she had blacked out and therefore did not consent to sexual intercourse. The defendant was particular. He was quick to state without being asked that the complainant was not drunk. He stated that she was steady and easy.
```html <table> <tr> <td>1</td> <td>84.</td> <td>In cross-examination the defendant was asked whether he thought the complainant was sober when</td> </tr> <tr> <td>2</td> <td>he first encountered her that evening. He stated that she was sober, that "she never seem like</td> </tr> <tr> <td>3</td> <td>anybody that was drunk" when she pulled him into the club. By this time, on the complainant's</td> </tr> <tr> <td>4</td> <td>account, she had been drinking and was at a 7 on a scale of 1-10 yet the defendant says that to him</td> </tr> <tr> <td>5</td> <td>she was sober. It was suggested to the complainant that she had exaggerated the extent of her</td> </tr> <tr> <td>6</td> <td>drinking before she went to the OBAR. She strenuously denied this. I believe that the complainant</td> </tr> <tr> <td>7</td> <td>was drinking and had drunk to the extent that she testified before going to OBAR.</td> </tr> <tr> <td>8</td> <td>9</td> <td>85.</td> <td>The defendant was adamant that even when they left OBAR and went to Burgar Shack that the</td> </tr> <tr> <td>10</td> <td>complainant was not drunk. He would not accept that the effects of alcohol on her were evident by</td> </tr> <tr> <td>11</td> <td>that time. I do not believe the defendant. He appeared to be trying to distance himself from the</td> </tr> <tr> <td>12</td> <td>complainant and drinking and the likely effects of that drinking because he was aware of the</td> </tr> <tr> <td>13</td> <td>implications of him having sexual intercourse with her in such a state of drunkenness.</td> </tr> <tr> <td>14</td> </tr> <tr> <td>15</td> <td>86.</td> <td>The defendant has admitted that he did not mention in interview about the complainant seeking</td> </tr> <tr> <td>16</td> <td>money for an abortion from him. To this court's mind this was something that he had only recently</td> </tr> <tr> <td>17</td> <td>fabricated in an attempt to give a reason for the complainant making this report against him. As</td> </tr> <tr> <td>18</td> <td>the prosecution submitted he may not have realized that the complainant could have accessed these</td> </tr> <tr> <td>19</td> <td>services without cost in her country of origin.</td> </tr> <tr> <td>20</td> </tr> <tr> <td>21</td> <td>87.</td> <td>The defendant admitted that he did not mention in interview that his father was at home at the time</td> </tr> <tr> <td>22</td> <td>that he and the complainant came back to his home that morning. He stated that it was the</td> </tr> <tr> <td>23</td> <td>seriousness of the allegation against him that caused him not to mention this fact. The</td> </tr> <tr> <td>24</td> <td>complainant's father was not called as a witness in this matter. The defendant's evidence is that</td> </tr> <tr> <td>25</td> <td>his father was at home at a time when the complainant stated that she was crying and screaming</td> </tr> <tr> <td>26</td> <td>during intercourse at around 8：00 am on the morning of 14th July 2018.</td> </tr> <tr> <td>27</td> </tr> <tr> <td>28</td> <td>88.</td> <td>The defendant suggested that the complainant's motive for making false allegations against him</td> </tr> <tr> <td>29</td> <td>was due to him suggesting that he may not have been the father of the child or that she had asked</td> </tr> <tr> <td>30</td> <td>him for monition that her the child did not g</td> </tr> <tr> <td>31</td> <td>defendant for an abortion. The complainant was asked that</td> </tr> <tr> <td>32</td> <td>complainant the convers</td> </tr> <tr> <td>33</td> <td>complainant was</td> </tr> <tr> <td>34</td> <td>and never contacted him after that interaction. Neither of these explanations offered by the</td> </tr> <tr> <td>defendant are to this court's mind motivators for the complaint to testify falsely against the</td> </tr> </table> 221209 Verdict Judgment: R v Renato Harris Coram: Carter J. (Actg.). Date: 9 December 2022 Page 20 of 21 ```
```html <table> <tr> <td>1</td> <td>defendant. Neither of these cause this court to doubt the complainant's evidence of what transpired</td> </tr> <tr> <td>2</td> <td>on the morning of the 14 July 2018.</td> </tr> <tr> <td>3</td> <td></td> </tr> <tr> <td>4</td> <td>89. I remind myself that I cannot convict the defendant simply because I do not believe his testimony</td> </tr> <tr> <td>5</td> <td>of what happened that morning. I must go back to consider the prosecution's case.</td> </tr> <tr> <td>6</td> <td></td> </tr> <tr> <td>7</td> <td>90. On each of the counts of the indictment the prosecution must prove that the defendant had sexual</td> </tr> <tr> <td>8</td> <td>intercourse with the complainant without her consent and that at the time the defendant knew that</td> </tr> <tr> <td>9</td> <td>the complainant was not consenting or was reckless as to whether she was consenting or not. On</td> </tr> <tr> <td>10</td> <td>the evidence presented by the prosecution the complainant was clear in her words and actions that</td> </tr> <tr> <td>11</td> <td>she did not consent to sexual intercourse with the defendant. I believe her evidence. She gave a</td> </tr> <tr> <td>12</td> <td>very detailed account of what transpired. She maintained her account under cross-examination</td> </tr> <tr> <td>13</td> <td>and the evidence Suzanne Johnson bolsters her evidence by supporting the consistency of her</td> </tr> <tr> <td>14</td> <td>account of what transpired that evening.</td> </tr> <tr> <td>15</td> <td></td> </tr> <tr> <td>16</td> <td>91. I believe that the complainant was drunk as she has said in evidence at the time that the defendant</td> </tr> <tr> <td>17</td> <td>had sexual intercourse with her in the early hours of the 14th of July. I find that in that state she</td> </tr> <tr> <td>18</td> <td>was unable to consent to sexual intercourse with the defendant. I believe her account of what</td> </tr> <tr> <td>19</td> <td>transpired later at some time around 8：00 am that morning. I believe that the defendant again had</td> </tr> <tr> <td>20</td> <td>sexual intercourse without her consent although at that point she clearly expressed by her words</td> </tr> <tr> <td>21</td> <td>and actions that she did not consent to such intercourse.</td> </tr> <tr> <td>22</td> <td></td> </tr> <tr> <td>23</td> <td>92. I find that the prosecution's evidence has satisfied me so that I am sure that the defendant had</td> </tr> <tr> <td>24</td> <td>sexual intercourse with the complainant on two occasions on the 14th of July 2018 without her</td> </tr> <tr> <td>25</td> <td>consent. I am satisfied so that I am sure that the defendant knew that the complainant was not</td> </tr> <tr> <td>26</td> <td>consenting or that he was reckless as to whether she was consenting or not.</td> </tr> <tr> <td>27</td> <td></td> </tr> <tr> <td>28</td> <td>93. I am satisfied so that I feel sure that the defendant is guilty of the two counts of rape as set</td> </tr> <tr> <td>29</td> <td>out on the indictment.</td> </tr> <tr> <td>30</td> <td>indictment.</td> </tr> <tr> <td>31</td> <td>3 his 9th day of 022.</td> </tr> <tr> <td>32</td> <td>Dated 11 December 2</td> </tr> <tr> <td>33</td> <td>Madam Justice Marlene I. Carter</td> </tr> <tr> <td>34</td> <td>Judge of the Grand Court (Ag.)</td> </tr> </table>