The issue of consent wasn't a factor in the sexual assault trial of Thomas Patrick McGrath, his lawyer argued Thursday — the issue was whether or not a sexual assault happened at all.
Having heard testimony from close to a dozen witnesses, provincial court Judge James Walsh decided there were too many contradictions to the alleged victim's evidence for him to convict McGrath. He acquitted McGrath of the sexual assault charge and told him he was free to go.
"There are too many inconsistencies in the testimony of the complainant that are otherwise contradicted by the physical evidence and the medical evidence and the evidence of the others … as well as her own admissions as to the unreliability of her evidence," Walsh said.
McGrath, 41, had pleaded not guilty to sexually assaulting the young woman by penetrating her digitally and forcing her to give him oral sex around a bonfire in C.B.S. on Jan. 28.
During his trial, the woman told the court she had been planning to stay at some friends’ home that night, and they decided to go to a bonfire at the residence of a neighbour. It was there that she met McGrath.
The woman said her friends had begun arguing and wanted to go home, and she decided to stay at the bonfire because she didn't want to listen to them fight. Her plan was to go back to the house later, she said. The woman said she and McGrath ended up being the last two at the gathering, and he pressured her into dancing with him before sitting in a chair by the fire and pulling her into his lap.
She told the court he put one hand on her breast and the other inside her pants, inserting his fingers in her vagina.
The woman said she remembered being on the ground at one point, with McGrath forcing her mouth onto his penis, telling her how much she liked it. She said she managed to activate an emergency feature on her iPhone by pressing the side button five times, resulting in a call to 911, but she was unable to speak when the operator answered. 911 dispatch records presented in court corroborated this evidence.
"I don't remember how it ended, but I do remember feeling very sick when it did end. I vomited instantly," she said. She threw her glove away at the scene because it was covered in vomit, she told the court.
The woman said she went back to her friends' house and found the door locked, so she called her mother, who told her to get a taxi and come to her place. She returned to the bonfire and McGrath offered to let her stay at his house for the night, but she left in the taxi instead, she said.
The woman went to the hospital that night, where she agreed to a sexual assault exam. The exam report noted a bruise on her arm, broken blood vessels on the roof of her mouth, and redness and tenderness in her genital area and cervix. A nurse told the court the woman was tearful and shaking, and had mud on her clothes.
Forensic identification officers took the woman's pants - which had mud on one knee - as well as her underwear, which was stained with blood. According to investigators, the woman had not had a menstrual cycle in more than a year due to birth control medication.
Forensic testing of swabs taken from the woman's mouth and vagina found no other DNA apart from her own. After reviewing the pelvic exam findings, Dr. Simon Avis, the province's chief medical examiner, reported seeing no evidence the woman had been bleeding from her vagina, and said the redness and tenderness could have been caused by trauma or infection or chemical irritation.
McGrath did not testify, though a video of his interview with RNC investigators was played for the court. In it, McGrath insisted he had not sexually assaulted the woman. He acknowledged they had been the last two people at the bonfire, and said the woman had left to go to her friends’ house, where she was staying. She returned shortly thereafter, he said, crying because she was locked out and had nowhere to go.
"I told her she had one of two options," McGrath said. "She could get a taxi home or she could come and sleep on my couch. She called a cab and went on home or somewhere."
Defence lawyer Jason Edwards pointed out the lack of mud on both of the woman's pants knees, even though she had said she had been kneeling on the ground; the fact her gloves - which had been given to the nurse at the hospital, and not thrown away as the woman had testified - contained no evidence of vomit; the lack of DNA and medical evidence; and the woman's own testimony that she had trouble remembering certain details.
Edwards questioned why the woman didn't call 911 again when she was away from McGrath and attempting to get back into her friends' house, and why she didn't try to wake her friends up to let her in.
Crown prosecutor Shawn Patten asked the judge to look at the evidence as a whole, keeping in mind the taxi driver, nurse and the woman's mother had all testified to her being distraught and crying; that there was no evidence to suggest how much she had vomited; the verified call to 911; the fact the woman had been too intoxicated to consent to sexual activity; and McGrath's denial of having seen the woman to the cab, even though the woman and the cab driver testified otherwise.
In the end, Walsh said the woman's evidence wasn't reliable, and found McGrath not guilty.
"Given (the complainant's) level of intoxication, I wouldn't expect her to have precision when it comes to who was where and what was what, but her lack of recollection of a number of things is concerning," the judge said. "But I have an allegation from somebody who has an unclear recollection of events that have been contradicted on physical evidence and medical evidence. If something happened, it didn't happen as described by the complainant."
tara.bradbury@thetelegram.com
Twitter: @tara_bradbury
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