Darren Smalley, one of four British sailors charged with sexual assault causing bodily harm, attends provincial court in Dartmouth, N.S., on June 30, 2015. The credibility of a woman who alleges she was gang raped at a Halifax-area military base was undermined by inconsistencies in her testimony, the lawyer for an accused British sailor told Nova Scotia Supreme Court on Thursday.THE CANADIAN PRESS/Andrew Vaughan

Nova Scotia judge to deliver verdict in British sailor’s gang rape case

HALIFAX — A decision is expected Friday in the high-profile case of a British sailor accused in a gang rape at a Halifax-area military base, even as the Crown mulls whether to reinstitute a sexual assault charge against a second member of the Royal Navy.

Darren Smalley, who is in his late 30s, is charged with sexual assault causing bodily harm and participating in a sexual assault involving one or more people in barracks at 12 Wing Shearwater on April 10, 2015.

The complainant testified at his trial last fall that she went to sleep next to a sailor, and later awoke face down and naked as at least three men sexually assaulted her.

Smalley was one of four British sailors originally charged.

Charges against Simon Radford were stayed early during the trial because he was being treated in hospital for an infection.

Prosecutor Cheryl Schurman said Justice Patrick Duncan’s ruling in Smalley’s case — it was scheduled to be delivered Thursday but is now expected Friday — may impact the Crown’s decision on whether to resurrect the charges against Radford.

“A decision on whether to reinstitute the charges will be made before this October — the expiry of the stay of proceedings,” said Schurman in an email.

“The Crown will take into account all of the available information, including the decision in Mr. Smalley’s case.”

Charges against the other two men, Craig Stoner and Joshua Finbow, were dropped.

Several days into a preliminary inquiry in April 2016, charges were dropped against Stoner, while charges against Finbow were withdrawn in December 2017.

The Crown said the prospect of convicting Finbow became unrealistic after Duncan deemed his police statement inadmissible at trial.

Smalley was part of a Royal Navy hockey team that was in Halifax to compete in a tournament.

In his final submissions at the conclusion of the Nova Scotia Supreme Court trial, defence lawyer Ian Hutchison argued that the credibility of the complainant was undermined by inconsistencies in her testimony.

Hutchison told the court that all of the witnesses provided contradictory evidence, and that the woman’s testimony contrasted sharply with what witnesses had to say about her behaviour.

However, Crown lawyers rejected that view, arguing the defence had largely relied on rape myths to bolster its case.

The woman, whose identity is protected by a publication ban, testified she was at Shearwater’s Warrior Block barracks because her friend had invited her on a double date after meeting a British sailor on Tinder.

She testified she went to sleep in a bed next to Radford, and later awoke to at least three men sexually assaulting her.

The woman told police she couldn’t see the men, but she was able to identify Smalley’s voice.

The court heard swabs taken by a sexual assault nurse confirmed that semen found near her anus and on her underwear matched Smalley’s DNA profile. The nurse also found bruising on the woman’s shoulder, leg and groin area, and lacerations to her genitals and anal area.

The complainant testified that she became fearful earlier in the evening after she lost sight of her friend, but said she did not want to leave the barracks without her friend. She recalled being frantic in the unfamiliar building, which was filled with hockey players.

But Hutchison argued that every witness, including the woman’s friend, told the court the complainant appeared happy and comfortable in her surroundings.

“Despite having this fear of being in an unsafe environment, she consumes alcohol and gets into bed with Mr. Radford,” he told the court on October 19.

As well, Hutchison noted the woman gave Radford a kiss on the lips when she got into his bed, which she said was a way of saying thank you for letting her sleep there.

Schurman said it was wrong to infer that the kiss was important to the case.

“It does not mean she consented to group sex,” Schurman said. “The kiss is a red herring.”

Schurman also argued that the woman’s outward behaviour was not necessarily inconsistent with how she was feeling inside.

She said the idea that the woman had a duty to flee the barracks should be understood as a rape myth.

“Regardless of how uneasy she was, she was under no obligation to flee,” she argued.

Smalley did not testify at the judge-only trial.

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