Summerside man acquitted of sexual assault

SUMMERSIDE — Judge Jeff Lantz admitted he didn’t know who to believe.

As a result, the judge dismissed charges of sexual assault causing bodily harm, assault and sexual assault against 45- year- old Dwayne Arthur Hawkes.

“I can’t say that I totally believe the version offered by the accused. But, hearing all the evidence I am unable to decide who to believe,” said Lantz in his decision delivered Wednesday morning in provincial court in Summerside.

“There could be some truth or no truth to any of the versions I heard. In the end, I don’t know who to believe and, therefore, I am not satisfied the Crown has proven any of the charges beyond a reasonable doubt.”

The decision came down to credibility, something, the judge admitted, he questioned when it came to the testimony of both Hawkes and the female complaint.

“Given the nature of these charges, it’s often times one person’s version against another’s,” added Lantz. “A criminal trial is not a credibility test where a judge chooses which side gave the better account or chooses which side he believes.”

Hawkes was accused of sexually assaulting a woman, who was known to him, with sex toys as another man watched online, pushing the woman and strangling her the next day and, months later, sexually assaulting her again as another man allegedly watched online.

Hawkes testified during a two- day trial that the sex was consensual in the first alleged incident and that it was the woman who initiated the encounter and broadcast it on the web.

He also denied the assault that was alleged to have happened the next day.

The woman testified that with the third assault it had started out as consensual sex but when she found out it was allegedly being streamed on the Internet, she asked Hawkes to stop and he didn’t as a man and woman allegedly watched.

Hawkes testified he and the woman were having consensual sex when he joked someone was watching on the computer, that he showed the woman the computer wasn’t on and that the consensual sex continued.

Lantz, in his almost 25minute decision, reviewed testimony in the case, including that of Hawkes and the alleged victim.

Lantz said the onus was on the Crown to prove beyond a reasonable doubt its case, adding if the court doesn’t know whether to believe the accused or the complainant, the accused must be acquitted.

“The accused and the complainant in this case both offered sworn testimony to the court. There were aspects of both that caused me some concern,” added the judge.

He first referred to the testimony of the victim, who Hawkes alleged reported him to police for a conditional sentence breach on unrelated matters in 2011, which resulted in him spending months behind bars.

The woman, during her testimony, said she thought Hawkes was innocent of those charges while Hawkes said the woman reported him to police since she was jealous and believed he was fooling around.

“His version seems more plausible,” said Lantz.

The judge also pointed to the woman’s alleged injuries from the first sexual assault. She testified during the trial that the assault left her torn and bleeding and that she still suffered pain as a result to this day.

But, said Lantz, an examination months later showed no telltale sign of injuries sustained in the assault and a further examination by the woman’s family doctor, although it showed thickening in the perianal area, showed nothing unusual.

“Obviously, there is a lack of medical corroboration,” said the judge, who admitted he found that rather strange considering the woman’s testimony.

Lantz also questioned aspects of Hawkes’ testimony, particularly his downplaying the use of alcohol on the night of the first alleged sexual assault.

“In this case, the Crown’s case obviously cannot be classified as powerful.”

Given his concerns over the credibility of the woman and Hawkes’ evidence, lack of corroborating medical evidence and no evidence of the assault found in RCMP’s forensic analysis, Lantz dismissed all charges.