R v Soriano (John Michael) - 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：57/2018</td> </tr> <tr> <td>THE QUEEN</td> </tr> <tr> <td>v.</td> </tr> <tr> <td>Rv.JOHN MICHAEL SORIANO</td> </tr> <tr> <td>Appearances：</td> <td>Mr. Kenneth Ferguson for the Crown</td> </tr> <tr> <td>Mr. Crister Brady， Counsel for the Defendant</td> </tr> <tr> <td>Before：</td> <td>Justice Marlene I. Carter (Actg.)</td> </tr> <tr> <td>Judge Alone Trial：</td> <td>7th to 10th January 2019</td> </tr> <tr> <td>Delivery of Decision：</td> <td>21st February 2019</td> </tr> <tr> <td>HEADNOTE</td> </tr> <tr> <td>Rape</td> </tr> <tr> <td>- Trial by Judge Alone -</td> </tr> <tr> <td>VERDICT JUDGMENT</td> </tr> <tr> <td>44</td> <td>PR</td> </tr> <tr> <td>AMBLE</td> </tr> <tr> <td>1.</td> <td>Section 31 of the Criminal Procedure Code (2014 Revision) deals with the “Anonymity of</td> </tr> <tr> <td>complainants in rape etc. cases and states：</td> </tr> </table> ```
```markdown # Grand Court, Cayman Islands Government ## Section 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. All references to the Complainant by name/nickname in witnesses' evidence or in the Agreed Facts, will be shortened or referred to by the initial "M". There is to be no identification of the Complainant in this case. ## INDICTMENT

¶ [1] The Defendant was on trial on a one count indictment for rape. The Indictment read: **Statement of Offence** Rape, contrary to section 127 of the Penal Code (2018 Revision). **Particulars of Offence** Michael Soriano, on the 3rd day of September 2018, at West End Road, in Cayman Brac in the Cayman Islands raped [the Complainant].

¶ [2] The Defendant elected trial by Judge alone pursuant to Section 129 of the Criminal Procedure Code. ## THE LAW ON JUDGE ALONE TRIALS

¶ [3] The Cayman Islands Court of Appeal (CICA) has given some guidance on the duties of a Judge in a Judge Alone trial. In *K. Richards v R*¹ Rowe JA, stated: "When a trial judge sitting alone has advised himself to the applicable law, and given necessary warnings, he must indicate clearly in his reasons any principles upon which he has acted. No specific form need be adopted with the exception of the necessary form of words. What is necessary is that the Judge's mind upon the matter should be clearly revealed." --- ¹ 2001 CILR 496 Verdict Judgment: R v John Michael Soriano; IND 57 of 2018 Coram: Carter J. (Actg.). Date: 21 February 2019 Page 2 of 22 ```
```html <table> <tr> <td>In Randy Martin v R2, Mottley JA stated as follows:</td> </tr> <tr> <td>“A judge sitting in a criminal case without a jury, in rendering his decision and</td> </tr> <tr> <td>giving his reasons for so concluding in not required to review every fact and to</td> </tr> <tr> <td>detail each argument on which the prosecution and defence rely as if he were</td> </tr> <tr> <td>summing up to a jury. The judge must set out the conclusion reached and make</td> </tr> <tr> <td>clear the reasons for arriving at that conclusion. He is required to have regard</td> </tr> <tr> <td>to any difficult or unusual points of law and to show how those points of law</td> </tr> <tr> <td>has in any way impacted the conclusion that he has reached.”</td> </tr> <tr> <td>5.</td> </tr> <tr> <td>As in all criminal trials the burden is on the Crown to prove beyond a reasonable doubt that the</td> </tr> <tr> <td>Defendant committed the offence of rape.</td> </tr> <tr> <td>6.</td> </tr> <tr> <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>to prove anything at all. The Defendant has no obligation to prove that he is not guilty, or to explain</td> </tr> <tr> <td>the evidence offered by the Prosecution.</td> </tr> <tr> <td>7.</td> </tr> <tr> <td>I will not review every single detail of the evidence, but I will address my mind to the important or</td> </tr> <tr> <td>prominent aspects of the evidence in deciding the critical issues in this case. I will not decide every</td> </tr> <tr> <td>single point that has been raised - only such matters that will enable me to determine whether the</td> </tr> <tr> <td>charge on the indictment have been proved.</td> </tr> <tr> <td>8.</td> </tr> <tr> <td>I remind myself that I am not to speculate about things or matters that are not covered by the</td> </tr> <tr> <td>evidence. I must have regard only to the whole of the evidence that has been presented at trial and</td> </tr> <tr> <td>form my own judgment about that evidence. The questions of fact at issue on this trial are for me</td> </tr> <tr> <td>to determine</td> </tr> <tr> <td>9.</td> </tr> <tr> <td>I must consider all of the evidence in this case and if after having done so, I have any reasonable</td> </tr> <tr> <td>doubt as to whether the Defendant is guilty or not, I must resolve that doubt in favour of the</td> </tr> <tr> <td>Defendant and find him not guilty of the offences for which he is charged.</td> </tr> <tr> <td>10.</td> </tr> <tr> <td>On the other hand, if having considered the evidence I am satisfied so that there is no reasonable</td> </tr> <tr> <td>doubt ind I am sure the Defendan</td> </tr> <tr> <td>law to liv as charged at, then if wi</td> </tr> <tr> <td>my mind, a of the guilt ll be equally</td> </tr> <tr> <td>nd him guilt of rape of my duty in</td> </tr> <tr> <td>THE LAW</td> </tr> <tr> <td>11.</td> </tr> <tr> <td>Section 127 of the Penal Code (2018 Revision) states:</td> </tr> <tr> <td>2 CICA Crim. Appeal No. 2/2010 (Ind. 27/2009)</td> </tr> </table> Verdict Judgment: R v John Michael Soriano; IND 57 of 2018 Coram: Carter J. (Actg.). Date: 21 February 2019 Page 3 of 22 ```
```markdown **(1) A man who rapes a woman or another man commits an offence.** **(2) A man commits rape if—** **(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** **(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.** **(3) A man also commits rape if he induces a married woman to have sexual intercourse with him by impersonating her husband.** **(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.** **(5) In subsection (4)—** *"rape offence"* means a rape or attempted rape, or aiding, abetting, counselling or procuring rape or attempted rape, or incitement to rape. **(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—** **(a) by threat of force or use of force;** **(b) by means of threats or intimidation of any kind;** **(c) by fear of bodily harm;** **(d) by means of false representations as to the nature of the act; or** **(e) in the case of a married woman, by personating her husband.* **12. While, unlike the UK legislation,³ the prosecution is not required to prove, as an element of the offence of rape, that the defendant did not reasonably believe that the complainant was consenting, the issue will arise where, at trial, the defendant alleges that he believed that the complainant was consenting. In such a case, the onus on the prosecution is to show an absence of reasonable grounds for such belief and that the defendant did not hold such reasonable belief that the complainant was consenting.** **THE PROSECUTION CASE** **3Section 1 of the Sexual Offences Act 2003** **Verdict Judgment: R v John Michael Soriano; IND 57 of 2018 Coram: Carter J. (Actg.). Date: 21 February 2019** **Page 4 of 22** ```
The case for the prosecution against the Defendant was supported by the evidence of ten witnesses. The only witnesses to give live evidence for the prosecution were the Complainant and Mavis Simbre. The Complainant, also called "M," stated in evidence that she had been living and working on Cayman Brac for approximately two years, that period interrupted only by an extended trip to her home in the Philippines when her mother passed away. When she returned to Cayman Brac, she met her friend Mavis Simbre’s boyfriend. She met Mavis, whom she referred to as Suzanne when she first came to Cayman Brac and they were good friends. The Complainant stated that she was used to spending time at Suzanne’s apartment especially on the weekends and that the Defendant would be at Suzanne’s apartment during those visits. The Complainant related that on the 3rd of September 2018 she had gone to see Suzanne where she worked and spent close to an hour with her there. She stated that she asked Suzanne if she could go to her apartment as she was suffering with a headache. She stated that the house in which Suzanne lived had three rooms for rent. Suzanne rented one of these. The Defendant did not live there with Suzanne but he stayed there sometimes. On that evening she got to the apartment the Defendant was present there and he appeared to be cooking rice. The Complainant stated that she went into Suzanne’s room and lay on the bed. She detailed that she was on her phone and playing her guitar while there in the room. The door to Suzanne’s room was not closed and she saw the Defendant eating. She related that she was lying on the bed on her stomach playing with her phone when the Defendant came into the room and sat on the floor close to her. He then suddenly sat on the bed next to her and she moved further onto the bed away from him. She related that the Defendant then suddenly groped her breast and moved his body and leaned over her. She stated then that she told him: "Defendant, she was feeling sick and she asked him to stop. The Defendant said 'no' and had 'get off'. When I told him to stop; he did not. My hands were upside. His arms were over mine so I was not able to move my hands. I keep telling him to stop and stop doing" Verdict Judgment: R v John Michael Soriano; IND 57 of 2018 Coram: Carter J. (Actg.). Date: 21 February 2019 Page 5 of 22
```html <table> <tr> <td>what he was doing. He was not getting off me. I was starting to get tired trying to</td> </tr> <tr> <td>get off from his hands, speaking in Filipino."</td> </tr> <tr> <td>3</td> </tr> <tr> <td>418.</td> <td>She went on that she thought that she could get away if she moved off the bed. She started moving</td> </tr> <tr> <td>5</td> <td>her body to get off the bed as her upper body was close to the edge of the bed. She fell to the floor</td> </tr> <tr> <td>6</td> <td>and the Defendant went down also on top of her. The more salient portions of the Complainant’s</td> </tr> <tr> <td>7</td> <td>evidence on this aspect was as follows</td> </tr> <tr> <td>8</td> </tr> <tr> <td>9</td> <td>‘I was on my side and then he moved his body over me.</td> </tr> <tr> <td>10</td> </tr> <tr> <td>11</td> <td>After that, I keep telling him to stop what he is trying to do. He was just saying</td> </tr> <tr> <td>12</td> <td>‘come on”.</td> </tr> <tr> <td>13</td> </tr> <tr> <td>14</td> <td>He was still trying to touch me everywhere. I kept telling him to stop and don’t do</td> </tr> <tr> <td>15</td> <td>it. I didn’t scream. I couldn’t scream because a lot was going through my mind.</td> </tr> <tr> <td>16</td> <td>I was thinking about how Suzanne would feel and it would make a big scandal in</td> </tr> <tr> <td>17</td> <td>the Brac... so I got scared of screaming and making a big scandal.</td> </tr> <tr> <td>18</td> </tr> <tr> <td>19</td> <td>He was trying to pull down my shirt and he was trying to kiss me and that’s when</td> </tr> <tr> <td>20</td> <td>I smelled alcohol. He was using his hands. I was trying to slide down but I could</td> </tr> <tr> <td>21</td> <td>not with my stomach. He had one of my legs locked with one of his.</td> </tr> <tr> <td>22</td> </tr> <tr> <td>23</td> <td>The only think I could do was cover my breasts and private area. I still had on my</td> </tr> <tr> <td>24</td> <td>shorts. I was already getting tired. He was able to take off my shorts. I had on</td> </tr> <tr> <td>25</td> <td>underwear. He was also able to take off my underwear. That’s when he started.</td> </tr> <tr> <td>26</td> <td>I was not able to cover my breasts. I was covering my private area with both of</td> </tr> <tr> <td>27</td> <td>my hands. I was very tired, very scared already, scared of what was happening</td> </tr> <tr> <td>28</td> <td>because I never thought it could happen to me. I felt like I was going to pass out</td> </tr> <tr> <td>able to removers from</td> <td>31</td> <td>pregnant I am’till you，I yuqhe was doim</td> </tr> <tr> <td>29</td> <td>and he was ove one of me and the</td> <td>30</td> <td>started taking vital. I doat</td> <td>mg oing to k</td> <td>know whing</td> <td>area an</td> <td>if I got</td> </tr> <tr> <td>32</td> </tr> <tr> <td>33</td> <td>He put his genitals inside my private area. It was inside my vagina. He kept</td> </tr> <tr> <td>34</td> <td>pushing his genitals inside my vagina. I keep telling him to stop. Then I couldn’t</td> </tr> </table> ```
```markdown **Grand Court of the Cayman Islands Government** **Verdict Judgment: R v John Michael Soriano; IND 57 of 2018 Coram: Carter J. (Actg.) Date: 21 February 2019** Page 7 of 22 The complainant described the events as follows:

¶ [1] The complainant was lying down and John Michael was on top of her. He suddenly stopped and got out of her and said "you are so horny". Then he suddenly took a rag from the floor and he wiped the floor and her leg and her vagina.

¶ [2] The door was open and you could see where she was laying down when she was able to gather strength. She put on underwear/shorts and she got a rag or pad and went to the bathroom to wash herself.

¶ [3] When she was in the bathroom, she sat down with the towel and when she pulled the door closed, she saw that her underwear was full with blood. She had never had sexual intercourse before. She never consented or agreed to for John Michael to have sexual intercourse with her at that time.

¶ [4] The complainant described going back to the bedroom and that the defendant appeared to smirk at her when he saw her. She says that she then sat on the bed, crying. It was maybe five minutes later that Suzanne came to the apartment while she was still sitting on the bed.

¶ [5] When Suzanne asked her what happened, she told her everything.

¶ [6] She told Suzanne she got raped by John Michael.

¶ [7] She further described that the defendant came into the room while she was speaking to Suzanne:

¶ [8] When John Michael came in, Suzanne did not say anything to him before he said sorry to her. After she cursed at him, she told Suzanne she is going to leave and she took her things. John Michael was still sitting on the floor.

¶ [9] After the complainant left Suzanne's apartment, she and Suzanne returned to the complainant's home. Mrs. Bismark-Clarke, who came and spoke to the complainant, took her to the hospital. She said that she was accompanied by the defendant. Mrs. Bismark-Clarke and her husband took the complainant to the Cayman Brac Police Station where she made a report of rape to the police and they also accompanied her to Faith Hospital. ```
During cross-examination, counsel for the Defendant asked many probing questions seeking to discredit the Complainant. The Complainant’s evidence was consistent; she was not shaken in cross-examination. She maintained throughout that she had been trying to get the Defendant to move off of her, that she was continually telling him “no” and “stop”. She denied that she had only made up this account of rape because she was afraid to admit that she had had consensual sex with her best friend’s boyfriend. She related that: “I said I couldn’t scream because I thought it would be a scandal. At that point I was concerned about being raped. I was also concerned about what is going to happen with me. I was not in my country, I was in a foreign country, what’s going to happen. I was thinking about all of that. I was too exhausted to scream. A lot of things were going through my mind already, how it’s going to be bad for Suzanne and for him as well because he has children, he has a daughter.” She described that she sat on the bed after the incident because she was having second thoughts on reporting the incident to the police due to her not being in her own country. She was also thinking about what would happen to the Defendant and to Suzanne. Mavis Simbre, also called Suzanne, was the second witness to give evidence for the prosecution. She related that she came to the Cayman Islands from the Philippines to work and that she and the Complainant were best friends. She stated that the Complainant would often visit her at her apartment and stay overnight. She met John Michael in January 2018. Her evidence of what occurred once she returned from work on the 3rd of September 2018 was introduced by the prosecution as evidence of the recent complaint. The more relevant aspects of her evidence in relation to her observations, what the Complainant said to her and her interaction with John Michael at that time are: It ended after what happened. John Michael lived with me but he was not permanent in my apartment. He had his own apartment in Spot Bay. Verdict Judgment: R v John Michael Soriano; IND 57 of 2018 Coram: Carter J. (Actg.). Date: 21 February 2019 Page 8 of 22
```html <table> <tr> <td>There were times all three of us slept on the same bed. It is not strange for three</td> </tr> <tr> <td>to sleep in one bed. It happened every weekend.</td> </tr> <tr> <td>Spring time， John Michael became my boyfriend. I did not have any reason to</td> </tr> <tr> <td>think that he had a crush on M or M have crush on him.</td> </tr> <tr> <td>I remember Monday， September 3 last year at Asian House Restaurant. I went to</td> </tr> <tr> <td>work that day. I saw John Michael that evening. I saw M in my apartment. She</td> </tr> <tr> <td>came there. I think about 6 in the afternoon； stayed for an hour. M wanted to go</td> </tr> <tr> <td>to my apartment and I told her yes. At the time， I knew where he was. I knew he</td> </tr> <tr> <td>was at the house at that time.</td> </tr> <tr> <td>I went home at 9 that evening. When I went to the apartment， I opened the door， I</td> </tr> <tr> <td>saw M sitting down on my bed. She was sweating and I asked her if she was not</td> </tr> <tr> <td>feeling well and if she was sick. She looked scared also. I turned on the A.C. and</td> </tr> <tr> <td>then I asked her what happened. After that， she asked me to lock the door and I</td> </tr> <tr> <td>locked the door. I asked her to tell me what happened. She started crying and she</td> </tr> <tr> <td>hugged me and then she said sorry.</td> </tr> <tr> <td>After this I told her what， because I was confused now. She said there is some</td> </tr> <tr> <td>blood on the bed and when I looked at it， there was no blood. Then she started</td> </tr> <tr> <td>holding her private parts. She tell me three times saying that John Michael's</td> </tr> <tr> <td>name. I asked her again and she said he raped her. After she said that I asked</td> </tr> <tr> <td>why don't she shout it and then I asked her to tell me what really happened.</td> </tr> <tr> <td>She said it hurt when she was holding her private parts. After that， I just asked</td> </tr> <tr> <td>her and she said John Michael was cooking food outside and "M" was inside the</td> </tr> <tr> <td>room， lying aying guitar inside the room， lying aying guitar inside the room.</td> </tr> <tr> <td>and he go and on M'se s feel， M： mv</td> </tr> <tr> <td>to move away from John Michael.</td> </tr> </table> ```
```html <table> <tr> <td>18173</td> <td>1</td> <td>2</td> </tr> </table> <p>After that, M said John Michael forced her onto her back with her hands and then John Michael removed M shorts and then her panties and then forced her private parts in M’s private parts and after M told me she told John Michael to stop but he continued on and after that M said to John Michael that if he got her pregnant she would kill him.</p> <p>John Michael finished what he was doing. After they finish, John Michael wiped her legs.</p> <p>When John Michael saw down he started to say sorry to me. I did not say anything to him before that happened.</p> <p>I have seen John Michael drunk before. He did not appear drunk to me that night.”</p> <p>27. In Cross-Examination Ms. Simbre stated:</p> <p>‘Nothing was supposed to be happening at work that day. There was no reason for me to come home early. 9：00 is my usual time home.</p> <p>When I saw M at my work place, she did not complain about having a headache.”</p> <p>28. The prosecution also read into evidence the statement of the witness Marsha Bismark-Clarke pursuant to Section 34 of the Evidence Law (2011 Revision). Mrs. Clarke’s evidence was that she knew the Complainant, whom she referred to in her evidence as M, as the Complainant attended the church for which her husband was the pastor. She related that she had grown to know the Complainant quite well in the short time that she, the Complainant, had been on the Island. Mrs. Clarke related that on Monday 3rd of September 2018 at around 10：15 pm she noticed that she had a missed call from M as well as a WhatsApp message. As a result, she called M and after she spoke to her sl her husband where M w</p> <p>31</p> <p>30</p> <p>32</p> <p>33</p> <p>Her evidence was:</p> <p>Verdict Judgment：R v John Michael Soriano；IND 57 of 2018 Coram：Carter J. (Actg.) Date：21 February 2019</p> <p>Page 10 of 22</p> ```
Transcript of the Document ## Grand Court of the Cayman Islands Government ### Transcript of Witness Statement **Witness:** Mrs. Clarke **Date:** 21 February 2019 **Case:** R v John Michael Soriano; IND 57 of 2018 **Coram:** Carter J. (Actg.) --- "I don't recall who asked if it was me or my husband but M replied: 'I have been raped'. Immediately I asked who? M and Suzanne were quiet for a while and they looked at each other, then Suzanne then replied 'It was my boyfriend JM (John Michael) who did it. I then asked did he come here. And M replied 'No it was at Suzanne apartment in West End. I cannot recall the exact time it happened but it was about 2 hours to 1½ hours before we had reached the house. I asked them how did they get back here to the house and they replied the bus.'" --- Mrs. Clarke described that the Complainant appeared to be in a lot of pain on the way to the hospital and that she "passed out" because "she was so tired and in a lot of pain". --- While at the hospital Mrs. Clarke detailed what she heard the Complainant describe to the doctor about the incident. The Complainant's account, set out in the witness statement of Mrs. Clarke, was substantially the same as the account that she gave at trial. --- "M said she went into the room of Suzanne and was on the bed on her stomach facing down and on her phone, after being there she heard JM come in the room and he came and sat on the bed next to her, she did not look up and continued looking on her phone as she did not think anything of this as they were all friends and JM is her best friend Suzanne boyfriend." --- Shortly after she felt a pressure on her legs and turned in shock to see what was happening JM then flipped her over and lifted up her top at this time she was very shock to what was taking place, JM pinned her down by her legs and the weight of his body was on her, she did not scream and she felt very terrified, JM then began to take her shorts and underwear off, this shorts she said she would usually wear with a belt as it is a bit loose but on this day she was not wearing the belt. --- Before he in her she she then began to scream but no one heard her. M was clearly distressed as she related this to the doctor, she was not crying at this point but when we first meet her at the house she was crying a lot." --- **Verdict Judgment:** R v John Michael Soriano; IND 57 of 2018 Coram: Carter J. (Actg.). Date: 21 February 2019 **Page:** 11 of 22
Mrs. Clarke's Testimony Mrs. Clarke also remembered: "M did not say anything to him and he did not say anything to her, just that after the incident JM took his shirt and wiped her leg probably to remove semen, JM then jumped into the shower and then walked out of the room. M said she felt very weak and fell to the ground after the incident." # Agreed Facts Crown counsel and counsel for the Defendant produced agreed facts which were introduced into evidence pursuant to Section 33 of the Evidence Law (2011 Revision). These agreed facts encompassed facts taken from the statements of six (6) police witnesses detailing the course of the investigation as well as the statements of the doctor and nurse who attended upon the Complainant and the Defendant at the Faith Hospital on the 3rd and 4th September 2018 respectively. # Summary of Evidence A summary of that aspect of the evidence is as follows:

¶ [1] At 11:15 pm on Monday September 3, 2018 PC 352 Cary Hunte was on duty at the Cayman Brac Police Station when he received a report from [the Complainant] of an alleged rape committed against her by one John Michael Soriano. The Officer observed that [the Complainant] was crying and her face was red and that she appeared very distraught and emotional. The complainant had to take regular breaks in order to compose herself whilst she was narrating what had happened to her to the Officer. PC Hunte then contacted Inspector Myles and informed him of the situation.

¶ [2] PC Kadane Hall was then tasked by Inspector Myles to locate the defendant and to arrest him. The key to Mavis Simbre’s room at #88 West End Road was also given to the Officer.

¶ [3] PC 352 contacted the the incident and reported the complainant and tson feeling the then ace compl. Faand consciousness before arriving at the hospital. Verdict Judgment: R v John Michael Soriano; IND 57 of 2018 Coram: Carter J. (Actg.). Date: 21 February 2019 Page 12 of 22
```html <table> <tr> <td>5.</td> <td>The complainant was seen and medically examined by Dr. Venkamma Bonigi</td> </tr> <tr> <td>who subsequently prepared a sexual assault kit in relation to the complainant</td> </tr> <tr> <td>6.</td> <td>Dr. Venkamma Bonigi examined the complainant[...]</td> </tr> <tr> <td>and found the</td> </tr> <tr> <td>following:</td> </tr> <tr> <td>i.</td> <td>Swelling, tenderness at the dorsum of her left hand and medial 3</td> </tr> <tr> <td>fingers and there was difficulty in flexing the 3 medial fingers.</td> </tr> <tr> <td>ii.</td> <td>Bleeding was noted from her introitus.</td> </tr> <tr> <td>iii.</td> <td>Her vulva was swollen and abrasion with oozing noted from her</td> </tr> <tr> <td>introitus.</td> </tr> <tr> <td>iv.</td> <td>Her hymen was not intact.</td> </tr> <tr> <td>v.</td> <td>Cervix healthy.</td> </tr> <tr> <td>8.</td> <td>PC Kadane Hall proceed (sic) to # 88 West End Road and went to the room</td> </tr> <tr> <td>and knocked on the door. He received no answer after identifying himself and</td> </tr> <tr> <td>gave a command for the door to be opened and so he entered the room with</td> </tr> <tr> <td>the key that had been given to him.</td> </tr> <tr> <td>9.</td> <td>There he saw the defendant as he was exiting the room and asked him to</td> </tr> <tr> <td>identify himself. The defendant gave his name as John Michael Soriano and</td> </tr> <tr> <td>PC Hall then informed him of the allegation that had been made against him</td> </tr> <tr> <td>earlier. The officer then arrested the defendant and cautioned him. When</td> </tr> <tr> <td>asked if he understood the caution he said “yes”.</td> </tr> <tr> <td>12.</td> <td>Later on the morning of Tuesday September 4, 2018, the defendant was taken</td> </tr> <tr> <td>to the Faith Hospital where he was processed and examined by Dr. Gregory</td> </tr> <tr> <td>who collected intimate samples from him and his clothing secured and handed</td> </tr> <tr> <td>over to Evidential</td> </tr> <tr> <td>PC Hall for e</td> </tr> <tr> <td>31</td> <td>13. On Wed</td> </tr> <tr> <td>01</td> <td>10 pm and</td> </tr> <tr> <td>over to Evidential</td> </tr> <tr> <td>30</td> <td>7 sadav Sente</td> </tr> <tr> <td>8 between 1p... and 2.00 p...</td> </tr> <tr> <td>the defendant was interviewed under caution by Acting Detective Sergeant</td> </tr> <tr> <td>Devon Bailey and DC Sarah Bodden at the Cayman Islands Detention Centre</td> </tr> <tr> <td>after telephone consultation (sic) his Attorney Mr. John Furniss.</td> </tr> </table> ```
```html <table> <tr> <td>14. At 6：15 pm that same evening he was formally charged for rape by PS 56</td> </tr> <tr> <td>Ashton Ferguson. After he was cautioned he made no statement."</td> </tr> </table> The Defendant's record of interview：the CD containing the video of the interview and the transcript of the interview under caution，were entered into evidence by the prosecution. The Court had the opportunity to view the interview. There was no objection raised by the defence to the admission of the interview into evidence. The interview was conducted on the 5th of September 2018. One of the police officers involved in the conduct of the interview spoke the Filipino language and translated the Defendant's answers. During the course of questioning the Defendant related as follows： "He was coming from work，feeding cows and checking and chopping on the bushes. He said when he arrived home，he cooked rice and viand and while doing so，he was also continuously drinking the same Bacardi. And then，all he could remember is that he fell asleep and then while he was sleeping he was awakened by the knock on his door saying that it was the police. When he opened the door，it was indeed the police，and the police asked him if he knew the reason why they were there and the reason for his arrest and he said，Mr. Soriano said that he did not know why he was arrested." With regard to the allegation of rape，when the specifics of that allegation were put to the Defendant he stated in the record of interview： "I can't remember anything about her complaints. Whatever that is，I can't say if it is true. Because that night I was drunk. Because one time when I am drunk，very drunk，can't remember events." Because my ows that. Suzanne knows that and M knows that，too. [Many times M objected to your sexual advances and she pushed you away while telling you to stop what you were doing. She further mentioned that you asked her ```
```html <table> <tr> <td>how she felt towards your advances. When she fell off the bed because you pushed her, you positioned her facing you while she continually fought you off and begged you to stop. But you did not hear her pleas. Instead you continued with your advances and kissed her then pinned her down and rammed your penis into her vagina. (interviewer)]</td> </tr> <tr> <td>5</td> </tr> <tr> <td>6</td> </tr> <tr> <td>7</td> </tr> <tr> <td>I can't remember anything relative to all those things, Ma'am.</td> </tr> <tr> <td>8</td> </tr> <tr> <td>9</td> </tr> <tr> <td>I don't remember anything with what she said. All I remember was the knocks on the door by the police, and it was around dawn by then. That is all I remember. I thought it were all a dream.</td> </tr> <tr> <td>10</td> </tr> <tr> <td>11</td> </tr> <tr> <td>12</td> </tr> <tr> <td>13</td> </tr> <tr> <td>But the knocks were real after all!</td> </tr> <tr> <td>14</td> </tr> <tr> <td>15</td> </tr> <tr> <td>[So you say you don't remember any of this or you just say you don't recall because you are being interviewed now? (interviewer)].</td> </tr> <tr> <td>16</td> </tr> <tr> <td>17</td> </tr> <tr> <td>18</td> </tr> <tr> <td>No. I really don't recall. Suzanne could attest that a lot of times I lost memory after a drinking binge. I could not recall how I manage go home, get into bed...how have I slept. Just that I wake up in the morning and she would ask me： "don't you remember anything? I even washed your whole body?" She would say that."</td> </tr> <tr> <td>21</td> </tr> <tr> <td>22</td> </tr> <tr> <td>23</td> </tr> <tr> <td>38.</td> </tr> <tr> <td>That was the extent of the evidence relied on by the prosecution to prove its case against the Defendant on the Count of Rape.</td> </tr> <tr> <td>24</td> </tr> <tr> <td>25</td> </tr> <tr> <td>26</td> </tr> <tr> <td>THE DEFENCE CASE</td> </tr> <tr> <td>27</td> </tr> <tr> <td>39.</td> </tr> <tr> <td>The Defendant elected at the close of the prosecution case to give evidence under caution. I remind myself tssess the eviefendant in t</td> </tr> <tr> <td>28</td> </tr> <tr> <td>29</td> </tr> <tr> <td>30</td> </tr> <tr> <td>31</td> </tr> <tr> <td>32</td> </tr> <tr> <td>33</td> </tr> <tr> <td>34</td> </tr> <tr> <td>35</td> </tr> <tr> <td>36</td> </tr> <tr> <td>37</td> </tr> <tr> <td>38</td> </tr> <tr> <td>39</td> </tr> <tr> <td>40</td> </tr> <tr> <td>41</td> </tr> <tr> <td>42</td> </tr> <tr> <td>43</td> </tr> <tr> <td>44</td> </tr> <tr> <td>45</td> </tr> <tr> <td>46</td> </tr> <tr> <td>47</td> </tr> <tr> <td>48</td> </tr> <tr> <td>49</td> </tr> <tr> <td>50</td> </tr> <tr> <td>51</td> </tr> <tr> <td>52</td> </tr> <tr> <td>53</td> </tr> <tr> <td>54</td> </tr> <tr> <td>55</td> </tr> <tr> <td>56</td> </tr> <tr> <td>57</td> </tr> <tr> <td>58</td> </tr> <tr> <td>59</td> </tr> <tr> <td>60</td> </tr> <tr> <td>61</td> </tr> <tr> <td>62</td> </tr> <tr> <td>63</td> </tr> <tr> <td>64</td> </tr> <tr> <td>65</td> </tr> <tr> <td>66</td> </tr> <tr> <td>67</td> </tr> <tr> <td>68</td> </tr> <tr> <td>69</td> </tr> <tr> <td>70</td> </tr> <tr> <td>71</td> </tr> <tr> <td>72</td> </tr> <tr> <td>73</td> </tr> <tr> <td>74</td> </tr> <tr> <td>75</td> </tr> <tr> <td>76</td> </tr> <tr> <td>77</td> </tr> <tr> <td>78</td> </tr> <tr> <td>79</td> </tr> <tr> <td>80</td> </tr> <tr> <td>81</td> </tr> <tr> <td>82</td> </tr> <tr> <td>83</td> </tr> <tr> <td>84</td> </tr> <tr> <td>85</td> </tr> <tr> <td>86</td> </tr> <tr> <td>87</td> </tr> <tr> <td>88</td> </tr> <tr> <td>89</td> </tr> <tr> <td>90</td> </tr> <tr> <td>91</td> </tr> <tr> <td>92</td> </tr> <tr> <td>93</td> </tr> <tr> <td>94</td> </tr> <tr> <td>95</td> </tr> <tr> <td>96</td> </tr> <tr> <td>97</td> </tr> <tr> <td>98</td> </tr> <tr> <td>99</td> </tr> <tr> <td>100</td> </tr> <tr> <td>101</td> </tr> <tr> <td>102</td> </tr> <tr> <td>103</td> </tr> <tr> <td>104</td> </tr> <tr> <td>105</td> </tr> <tr> <td>106</td> </tr> <tr> <td>107</td> </tr> <tr> <td>108</td> </tr> <tr> <td>109</td> </tr> <tr> <td>110</td> </tr> <tr> <td>111</td> </tr> <tr> <td>112</td> </tr> <tr> <td>113</td> </tr> <tr> <td>114</td> </tr> <tr> <td>115</td> </tr> <tr> <td>116</td> </tr> <tr> <td>117</td> </tr> <tr> <td>118</td> </tr> <tr> <td>119</td> </tr> <tr> <td>120</td> </tr> <tr> <td>121</td> </tr> <tr> <td>122</td> </tr> <tr> <td>123</td> </tr> <tr> <td>124</td> </tr> <tr> <td>125</td> </tr> <tr> <td>126</td> </tr> <tr> <td>127</td> </tr> <tr> <td>128</td> </tr> <tr> <td>129</td> </tr> <tr> <td>130</td> </tr> <tr> <td>131</td> </tr> <tr> <td>132</td> </tr> <tr> <td>133</td> </tr> <tr> <td>134</td> </tr> <tr> <td>135</td> </tr> <tr> <td>136</td> </tr> <tr> <td>137</td> </tr> <tr> <td>138</td> </tr> <tr> <td>139</td> </tr> <tr> <td>140</td> </tr> <tr> <td>141</td> </tr> <tr> <td>142</td> </tr> <tr> <td>143</td> </tr> <tr> <td>144</td> </tr> <tr> <td>145</td> </tr> <tr> <td>146</td> </tr> <tr> <td>147</td> </tr> <tr> <td>148</td> </tr> <tr> <td>149</td> </tr> <tr> <td>150</td> </tr> <tr> <td>151</td> </tr> <tr> <td>152</td> </tr> <tr> <td>153</td> </tr> <tr> <td>154</td> </tr> <tr> <td>155</td> </tr> <tr> <td>156</td> </tr> <tr> <td>157</td> </tr> <tr> <td>158</td> </tr> <tr> <td>159</td> </tr> <tr> <td>160</td> </tr> <tr> <td>161</td> </tr> <tr> <td>162</td> </tr> <tr> <td>163</td> </tr> <tr> <td>164</td> </tr> <tr> <td>165</td> </tr> <tr> <td>166</td> </tr> <tr> <td>167</td> </tr> <tr> <td>168</td> </tr> <tr> <td>169</td> </tr> <tr> <td>170</td> </tr> <tr> <td>171</td> </tr> <tr> <td>172</td> </tr> <tr> <td>173</td> </tr> <tr> <td>174</td> </tr> <tr> <td>175</td> </tr> <tr> <td>176</td> </tr> <tr> <td>177</td> </tr> <tr> <td>178</td> </tr> <tr> <td>179</td> </tr> <tr> <td>180</td> </tr> <tr> <td>181</td> </tr> <tr> <td>182</td> </tr> <tr> <td>183</td> </tr> <tr> <td>184</td> </tr> <tr> <td>185</td> </tr> <tr> <td>186</td> </tr> <tr> <td>187</td> </tr> <tr> <td>188</td> </tr> <tr> <td>189</td> </tr> <tr> <td>190</td> </tr> <tr> <td>191</td> </tr> <tr> <td>192</td> </tr> <tr> <td>193</td> </tr> <tr> <td>194</td> </tr> <tr> <td>195</td> </tr> <tr> <td>196</td> </tr> <tr> <td>197</td> </tr> <tr> <td>198</td> </tr> <tr> <td>199</td> </tr> <tr> <td>200</td> </tr> <tr> <td>201</td> </tr> <tr> <td>202</td> </tr> <tr> <td>203</td> </tr> <tr> <td>204</td> </tr> <tr> <td>205</td> </tr> <tr> <td>206</td> </tr> <tr> <td>207</td> </tr> <tr> <td>208</td> </tr> <tr> <td>209</td> </tr> <tr> <td>210</td> </tr> <tr> <td>211</td> </tr> <tr> <td>212</td> </tr> <tr> <td>213</td> </tr> <tr> <td>214</td> </tr> <tr> <td>215</td> </tr> <tr> <td>216</td> </tr> <tr> <td>217</td> </tr> <tr> <td>218</td> </tr> <tr> <td>219</td> </tr> <tr> <td>220</td> </tr> <tr> <td>221</td> </tr> <tr> <td>222</td> </tr> <tr> <td>223</td> </tr> <tr> <td>224</td> </tr> <tr> <td>225</td> </tr> <tr> <td>226</td> </tr> <tr> <td>227</td> </tr> <tr> <td>228</td> </tr> <tr> <td>229</td> </tr> <tr> <td>230</td> </tr> <tr> <td>231</td> </tr> <tr> <td>232</td> </tr> <tr> <td>233</td> </tr> <tr> <td>234</td> </tr> <tr> <td>235</td> </tr> <tr> <td>236</td> </tr> <tr> <td>237</td> </tr> <tr> <td>238</td> </tr> <tr> <td>239</td> </tr> <tr> <td>240</td> </tr> <tr> <td>241</td> </tr> <tr> <td>242</td> </tr> <tr> <td>243</td> </tr> <tr> <td>244</td> </tr> <tr> <td>245</td> </tr> <tr> <td>246</td> </tr> <tr> <td>247</td> </tr> <tr> <td>248</td> </tr> <tr> <td>249</td> </tr> <tr> <td>250</td> </tr> <tr> <td>251</td> </tr> <tr> <td>252</td> </tr> <tr> <td>253</td> </tr> <tr> <td>254</td> </tr> <tr> <td>255</td> </tr> <tr> <td>256</td> </tr> <tr> <td>257</td> </tr> <tr> <td>258</td> </tr> <tr> <td>259</td> </tr> <tr> <td>260</td> </tr> <tr> <td>261</td> </tr> <tr> <td>262</td> </tr> <tr> <td>263</td> </tr> <tr> <td>264</td> </tr> <tr> <td>265</td> </tr> <tr> <td>266</td> </tr> <tr> <td>267</td> </tr> <tr> <td>268</td> </tr> <tr> <td>269</td> </tr> <tr> <td>270</td> </tr> <tr> <td>271</td> </tr> <tr> <td>272</td> </tr> <tr> <td>273</td> </tr> <tr> <td>274</td> </tr> <tr> <td>275</td> </tr> <tr> <td>276</td> </tr> <tr> <td>277</td> </tr> <tr> <td>278</td> </tr> <tr> <td>279</td> </tr> <tr> <td>280</td> </tr> <tr> <td>281</td> </tr> <tr> <td>282</td> </tr> <tr> <td>283</td> </tr> <tr> <td>284</td> </tr> <tr> <td>285</td> </tr> <tr> <td>286</td> </tr> <tr> <td>287</td> </tr> <tr> <td>288</td> </tr> <tr> <td>289</td> </tr> <tr> <td>290</td> </tr> <tr> <td>291</td> </tr> <tr> <td>292</td> </tr> <tr> <td>293</td> </tr> <tr> <td>294</td> </tr> <tr> <td>295</td> </tr> <tr> <td>296</td> </tr> <tr> <td>297</td> </tr> <tr> <td>298</td> </tr> <tr> <td>299</td> </tr> <tr> <td>300</td> </tr> <tr> <td>301</td> </tr> <tr> <td>302</td> </tr> <tr> <td>303</td> </tr> <tr> <td>304</td> </tr> <tr> <td>305</td> </tr> <tr> <td>306</td> </tr> <tr> <td>307</td> </tr> <tr> <td>308</td> </tr> <tr> <td>309</td> </tr> <tr> <td>310</td> </tr> <tr> <td>311</td> </tr> <tr> <td>312</td> </tr> <tr> <td>313</td> </tr> <tr> <td>314</td> </tr> <tr> <td>315</td> </tr> <tr> <td>316</td> </tr> <tr> <td>317</td> </tr> <tr> <td>318</td> </tr> <tr> <td>319</td> </tr> <tr> <td>320</td> </tr> <tr> <td>321</td> </tr> <tr> <td>322</td> </tr> <tr> <td>323</td> </tr> <tr> <td>324</td> </tr> <tr> <td>325</td> </tr> <tr> <td>326</td> </tr> <tr> <td>327</td> </tr> <tr> <td>328</td> </tr> <tr> <td>329</td> </tr> <tr> <td>330</td> </tr> <tr> <td>331</td> </tr> <tr> <td>332</td> </tr> <tr> <td>333</td> </tr> <tr> <td>334</td> </tr> <tr> <td>335</td> </tr> <tr> <td>336</td> </tr> <tr> <td>337</td> </tr> <tr> <td>338</td> </tr> <tr> <td>339</td> </tr> <tr> <td>340</td> </tr> <tr> <td>341</td> </tr> <tr> <td>342</td> </tr> <tr> <td>343</td> </tr> <tr> <td>344</td> </tr> <tr> <td>345</td> </tr> <tr> <td>346</td> </tr> <tr> <td>347</td> </tr> <tr> <td>348</td> </tr> <tr> <td>349</td> </tr> <tr> <td>350</td> </tr> <tr> <td>351</td> </tr> <tr> <td>352</td> </tr> <tr> <td>353</td> </tr> <tr> <td>354</td> </tr> <tr> <td>355</td> </tr> <tr> <td>356</td> </tr> <tr> <td>357</td> </tr> <tr> <td>358</td> </tr> <tr> <td>359</td> </tr> <tr> <td>360</td> </tr> <tr> <td>361</td> </tr> <tr> <td>362</td> </tr> <tr> <td>363</td> </tr> <tr> <td>364</td> </tr> <tr> <td>365</td> </tr> <tr> <td>366</td> </tr> <tr> <td>367</td> </tr> <tr> <td>368</td> </tr> <tr> <td>369</td> </tr> <tr> <td>370</td> </tr> <tr> <td>371</td> </tr> <tr> <td>372</td> </tr> <tr> <td>373</td> </tr> <tr> <td>374</td> </tr> <tr> <td>375</td> </tr> <tr> <td>376</td> </tr> <tr> <td>377</td> </tr> <tr> <td>378</td> </tr> <tr> <td>379</td> </tr> <tr> <td>380</td> </tr> <tr> <td>381</td> </tr> <tr> <td>382</td> </tr> <tr> <td>383</td> </tr> <tr> <td>384</td> </tr> <tr> <td>385</td> </tr> <tr> <td>386</td> </tr> <tr> <td>387</td> </tr> <tr> <td>388</td> </tr> <tr> <td>389</td> </tr> <tr> <td>390</td> </tr> <tr> <td>391</td> </tr> <tr> <td>392</td> </tr> <tr> <td>393</td> </tr> <tr> <td>394</td> </tr> <tr> <td>395</td> </tr> <tr> <td>396</td> </tr> <tr> <td>397</td> </tr> <tr> <td>398</td> </tr> <tr> <td>399</td> </tr> <tr> <td>400</td> </tr> <tr> <td>401</td> </tr> <tr> <td>402</td> </tr> <tr> <td>403</td> </tr> <tr> <td>404</td> </tr> <tr> <td>405</td> </tr> <tr> <td>406</td> </tr> <tr> <td>407</td> </tr> <tr> <td>408</td> </tr> <tr> <td>409</td> </tr> <tr> <td>410</td> </tr> <tr> <td>411</td> </tr> <tr> <td>412</td> </tr> <tr> <td>413</td> </tr> <tr> <td>414</td> </tr> <tr> <td>415</td> </tr> <tr> <td>416</td> </tr> <tr> <td>417</td> </tr> <tr> <td>418</td> </tr> <tr> <td>419</td> </tr> <tr> <td>420</td> </tr> <tr> <td>421</td> </tr> <tr> <td>422</td> </tr> <tr> <td>423</td> </tr> <tr> <td>424</td> </tr> <tr> <td>425</td> </tr> <tr> <td>426</td> </tr> <tr> <td>427</td> </tr> <tr> <td>428</td> </tr> <tr> <td>429</td> </tr> <tr> <td>430</td> </tr>
The Defendant did not deny that sexual intercourse took place between himself and the Complainant. He was adamant that the intercourse was consensual. He related that when the Complainant came to Suzanne’s apartment, he was at the apartment cooking rice and vegetables, that the Complainant went into Suzanne’s room and was at times on her phone or playing the guitar and that he went into the room and sat by her as she was lying on the bed. This description all accords with the version of events described by the Complainant. The Defendant’s testimony diverges from the Complainant as to what happened and how it happened after this point. The Defendant’s testimony was that he started to tease the Complainant and touched her breasts. He described that he started to hug M and that he touched her breasts as she lay on the bed. He related that M fell on the floor from the bed and he followed her and was lying beside her. He stated that she was looking at him seductively, he started to kiss her and she seemed to like it. He described slowly taking off her clothes. He stated that M did not do anything and neither did she say anything while he was doing this. He described how he took off the Complainant’s clothing and that they began to have intercourse. He stated that the Complainant only spoke to say: "She talked to me, 'what if I got pregnant' and I said don’t worry I will not put the semen inside of you. She said 'ok'." We continued having sex until both of us orgasm. After we had sex we had to rest for a little bit and M got her phone, to look at her phone, at what time it is." The Defendant testified that after he and M had had sex, that he took a handkerchief and started to wipe and clean her legs and her private parts. He then went to the bathroom to clean himself. He stated: "When I comited to go talking right away when she saw me. I saw my girlfriend Suzanne; her eyes were looking at me angrily. I assume that my girlfriend knows already I had sex with her best friend." Verdict Judgment: R v John Michael Soriano; IND 57 of 2018 Coram: Carter J. (Actg.). Date: 21 February 2019 Page 16 of 22
```markdown I apologized to my girlfriend Suzanne. After I apologized to Suzanne, M walked out of the room. Suzanne followed her outside. He stated that after M and Suzanne left the house, he decided to get some rest. The police awakened him: "Police told me 'you are accused of raping M.' I told him, I don't know. What I meant was I don't know I rape her. I mean we have sex." In the interview, I told police, I didn't know of raping M that I didn't know anything that happened that night. I don't remember raping her. I was so shocked when the police came and ask me, I feel like I lock my mind but what I really meant I did not do it, I did not rape her." At trial, the Defendant's testimony was emotional at times. In cross-examination the Defendant was questioned closely by Crown Counsel. "I said M wanted to have consensual sex with me. Before that, she had expressed intimate intention toward me. Because she was wearing short pants, sexy shorts and when I told her to not lay on the bed or for herself lying on the bed, she did not do anything." He denied that the Complainant told him to stop when he first touched her breasts or that she told him to stop at all. Crown Counsel's questioned the Defendant about his failure, when confronted with the allegation of rape at various points during the period 3-5th September 2018, to explain that the Com consented to the Com's sexual intercourse. Crown Counsel's also wherewhieved un the Defe of response to the allelrist was: the Com's arrestedgat ant's respe put to hit "The police officer did tell me that it was my opportunity to state what happened and also to say details. I agree she asked me a number of times to tell her details. ```
```html <table> <tr> <td>My mind was blank. I was blank. I was scared, shocked of what happened. I could</td> </tr> <tr> <td>not compose myself to say what really happened in interview with police.</td> </tr> <tr> <td>What I really meant was I don't remember raping her. I did not rape her.</td> </tr> <tr> <td>I did not say sex was consensual. That is what I really meant but I guess I did not</td> </tr> <tr> <td>express myself in the proper words that I should have done."</td> </tr> <tr> <td>He agreed, under cross-examination, that his account at trial, that he and the Complainant had had</td> </tr> <tr> <td>consensual sex, was the first time that he had related this version of their encounter. He also agreed</td> </tr> <tr> <td>that some of the specifics he related to the Court of that encounter were not put to the Complainant</td> </tr> <tr> <td>when she was cross-examined by his counsel.</td> </tr> <tr> <td>The Defendant clarified that he was not drunk during the encounter with the Complainant although</td> </tr> <tr> <td>he had drunk some alcohol before the incident.</td> </tr> <tr> <td>When Suzanne came to the house that night, I only drank a few. I drank a little</td> </tr> <tr> <td>bit.</td> </tr> <tr> <td>I drunk some, I was not drunk.</td> </tr> <tr> <td>At that time, earlier in the afternoon, I was a little bit drunk.</td> </tr> <tr> <td>I was not drunk and I know what was happening."</td> </tr> <tr> <td>Apart from the Defendant there were no other witnesses for the defence.</td> </tr> <tr> <td>COURT'S REASONING AND CONCLUSIONS</td> </tr> <tr> <td>During the course of the closing speeches, counsel for the prosecution and for the Defendant were</td> </tr> <tr> <td>agreed to arrive at a verdict on the facts of this case, that I would have to determine</td> </tr> <tr> <td>whether the Complainant, that the Court would have to determine whether the Complainant, that the</td> </tr> <tr> <td>Defendant was consensual or not.</td> </tr> <tr> <td>The medical evidence, the findings upon examination of the Complainant on the night of the 3rd of</td> </tr> <tr> <td>September 2018, did confirm that the Complainant's hymen was not intact and did support the fact</td> </tr> </table> ```
```html <table> <tr> <td>of sexual intercourse. Although the medical evidence detailed，"Bleeding...from her introitus"and</td> </tr> <tr> <td>“Her vulva was swollen and abrasion with oozing noted from her introitus” this evidence in and</td> </tr> <tr> <td>of itself does not confirm non-consensual sexual intercourse. I consider, as well, the Complainant’s</td> </tr> <tr> <td>evidence；that she was a virgin before the encounter. This could explain the presence of the blood</td> </tr> <tr> <td>observed upon examination，and again does not support any conclusive finding of non-consensual</td> </tr> <tr> <td>sexual intercourse.</td> </tr> <tr> <td>52.</td> </tr> <tr> <td>The evidence of Mavis Simbre and Marsha Bismark-Clarke is evidence of a recent complaint and</td> </tr> <tr> <td>does support the consistency of the Complainant’s account of the incident. The Complainant</td> </tr> <tr> <td>reported to both within a relatively short time：from the Complainant’s evidence within five minutes</td> </tr> <tr> <td>of her returning from the bathroom after the incident she told Mavis Simbre that the Defendant had</td> </tr> <tr> <td>raped her and she also told Mrs. Clarke within an hour of the incident that it was Jean Michael，the</td> </tr> <tr> <td>Defendant，who had raped her. The account to both of these witnesses of the manner in which</td> </tr> <tr> <td>the incident took place is largely consistent with her own evidence of the encounter in Court.</td> </tr> <tr> <td>53.</td> </tr> <tr> <td>There were inconsistencies between the evidence of the Complainant and of Mavis Simbre as to to</td> </tr> <tr> <td>what was discussed，and what were the arrangements made between them before the incident. The</td> </tr> <tr> <td>Complainant stated that she told Ms. Simbre that she had a headache and that she wanted to go to</td> </tr> <tr> <td>Suzanne’s apartment to lie down. She also said that Suzanne told her that she would be home early.</td> </tr> <tr> <td>In cross-examination Suzanne stated that she had had no reason to leave work early that evening，</td> </tr> <tr> <td>that she returned home at her usual time and that the Complainant had not complained to her about</td> </tr> <tr> <td>having a headache.</td> </tr> <tr> <td>54.</td> </tr> <tr> <td>I do not consider that there matters go to the main issues in this case or that they are inconsistencies</td> </tr> <tr> <td>of such magnitude to cause me to doubt the account that the Complainant gave of the incident with</td> </tr> <tr> <td>the Defendant，nor do they cause me to doubt Suzanne’s recollection of what the Complainant</td> </tr> <tr> <td>reported to her on the evening of the 3rd September 2018.</td> </tr> <tr> <td>55.</td> </tr> <tr> <td>I have also carefully considered the arguments put forward by counsel for the Defendant that the</td> </tr> <tr> <td>lack of the Complainant’s evidence of an attempt to prevent the Defendant from raping her，</td> </tr> <tr> <td>the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evidence of</td> </tr> <tr> <td>an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to prevent</td> </tr> <tr> <td>the Defendant from raping her，the lack of evidence of an attempt to prevent the Defendant from</td> </tr> <tr> <td>raping her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of</td> </tr> <tr> <td>evidence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，the lack of evidence of an attempt to prevent the Defendant from raping her，the lack of evi</td> </tr> <tr> <td>dence of an attempt to prevent the Defendant from raping her，the lack of evidence of an attempt to</td> </tr> <tr> <td>prevent the Defendant from raping her，the lack of evidence of an attempt to prevent the Defen</td> </tr> <tr> <td>endant from raping her，the lack of evidence of an attempt to prevent the Defendant from raping</td> </tr> <tr> <td>her，
The Complainant’s responses appear to be to this Court consistent with her professed faith and evidence of her involvement in the church and the Filipino community. Even where the victim is an adult the fallout from disclosures of sexual assault and the effect on a victim of sexual assault can be unpredictable in such circumstances. Further, experience has shown that people may react differently to the trauma of sexual assault and that this extends to responses or reactions during the incident itself. In any event, victims of rape do not always have injuries to show for it and there is no classic reaction to a demand for unwanted sexual activity. I remind myself that the prosecution does not have to prove that the Complainant communicated her lack of consent by shouting at the Defendant or screaming and scratching him. I do not find that the lack of screaming and scratching in the circumstances of this case are such as to cause me to doubt the Complainant’s account. I remind myself that the Complainant has given evidence that at various points during the incident she clearly told the Defendant to stop, that she was saying no and attempting to get away from the Defendant. I observed the Complainant as she gave her evidence of these matters. When she stated that she had fought and fought and she was tired it appeared to this Court that she was resigned to her fate. That is not an indication of consent. The same is true when she says she told the Defendant that she would kill him if she got pregnant. The Complainant’s evidence was that at this point, when the Defendant had already managed to take off her clothes despite her protests and efforts to get him to stop, she had become tired from fighting him off. However, these actions do not vitiate her lack of consent. The Defendant has posited a number of scenarios surrounding his reaction to the allegations by the Complainant. In his interview under caution he stated that he was drunk and so did not remember the incident or that he had had sexual intercourse with the Complainant at all. On this account the Defendant remembered the events that led up to the moment when the Complainant states the rape occurred but not the act itself. At trial he stated that he was not sure what he meant, when he said in interview that he could not remember anything at all, was that he could not remember the encounter being rape as was being alleged. On this version he knew that
```html <table> <tr> <td>he had had sexual intercourse with the Complainant and that it was consensual, but he was confused</td> </tr> <tr> <td>and afraid and was therefore unable to express what he meant to the police.</td> </tr> <tr> <td>At trial， the Defendant related what he remembers as the correct version of what happened on</td> </tr> <tr> <td>the 3rd September 2018. He was clear that he had had consensual sexual intercourse</td> </tr> <tr> <td>with the Complainant, in which they both freely participated and enjoyed, and that he was not in</td> </tr> <tr> <td>fact drunk when such consensual intercourse took place.</td> </tr> <tr> <td>I have had the benefit of viewing the video recording of the Defendant's interview. There was no</td> </tr> <tr> <td>challenge to the admissibility of the record of interview at trial. The Defendant had the benefit of</td> </tr> <tr> <td>speaking to counsel before the interview commenced and one of the police officers interviewing</td> </tr> <tr> <td>the Defendant was able to speak to him in his native language. There did not appear to be any point</td> </tr> <tr> <td>at which the Defendant did not fully understand what was being asked of him. He never complained</td> </tr> <tr> <td>of such. He answered freely. I am not persuaded by the Defendant's statements that he was</td> </tr> <tr> <td>confused and unable to express himself and therefore unable to state that what had occurred</td> </tr> <tr> <td>between himself and the Complainant was consensual.</td> </tr> <tr> <td>The Defendant admitted that he was offered many opportunities during that interview to explain</td> </tr> <tr> <td>what had happened between himself and the Complainant and he did not. I note that he made no</td> </tr> <tr> <td>explanation when first confronted with the allegation on the 3rd of September 2018 upon his arrest.</td> </tr> <tr> <td>These matters raise some doubt in my mind about the Defendant's explanation and account of the</td> </tr> <tr> <td>incident.</td> </tr> <tr> <td>At trial the Defendant related in great detail what he says transpired between himself and the</td> </tr> <tr> <td>Complainant, yet many of these specifics were not put to the Complainant when she was being</td> </tr> <tr> <td>cross-examined, raising the spectre of recent fabrication.</td> </tr> <tr> <td>I do not believe the account given by the Defendant. His lack of response when first taxed with the</td> </tr> <tr> <td>allegations between versions of what occurred between himself and the Complainant, and the</td> </tr> <tr> <td>fact that were not pursued and</td> </tr> <tr> <td>of the eve 3rd September Complainant does herself that I vict</td> </tr> <tr> <td>many detail to the current， and the</td> </tr> <tr> <td>vening of the Con ber 2018mys</td> </tr> <tr> <td>simply because I do not believe his testimony of what happened that evening. I must go back to</td> </tr> <tr> <td>consider the prosecution's case.</td> </tr> </table> ```
The prosecution must prove sexual intercourse without consent and that the Defendant knew that the Complainant was not consenting or was reckless as to whether she was consenting or not. On the evidence presented by the prosecution the Complainant was clear in her words and by actions that she did not consent to sexual intercourse with the Defendant. I believe her evidence. She gave a very detailed account of what transpired. She maintained her account under cross-examination and the evidence of Mavis Simbre and Marsha Bismark-Clarke bolster her evidence by supporting the consistency of her account of what transpired that evening. It is clear that the Defendant’s defence was consent. I find that the prosecution’s evidence has satisfied me so that I am sure that the Complainant did not consent to sexual intercourse with the Defendant. I am satisfied so that I am sure that the Defendant knew that the Complainant was not consenting or that he was reckless as to whether she was consenting or not. The Defendant did not advance at trial that he reasonably believed that the Complainant was consenting and counsel for the Defendant did not address me in that regard. However, to the extent that any of the Defendant’s testimony could arguably indicate that he reasonably believed that the Complainant was consenting to sexual intercourse with him, I have considered whether there were any grounds for such belief and also whether he could reasonably have held such a belief. I do not find that there were any grounds upon which he could reasonably have held such a belief in all the circumstances of this case, and I do not find that he reasonably held such belief. I am satisfied so that I feel sure that the defendant is guilty of rape. Dated this 21<sup>st</sup> day of February, 2019. Madam Justice Marlene I. Carter ge of the GrActing) Jud and Court ( Verdict Judgment: R v John Michael Soriano; IND 57 of 2018 Coram: Carter J. (Actg.). Date: 21 February 2019 Page 22 of 22