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After almost a year before a military court, the sexual assault trial of a former Royal Military College student, 23 year old Alex R. Whitehead, comes down to credibility. d decided Thursday that he didn need to hear evidence from a psychology professor Whitehead defence team sought to call as an expert witness on how human memory works, the frailties of autobiographical memory, and some of the factors that can lead to false memories.

Military lawyer Maj. Edmund Thomas, one half of Whitehead defence team, argued the professor opinion evidence would be an aid to the judge in assessing the testimony, in particular of the second of two female complainants against his client. Both women are former classmates of Whitehead who accuse him of sexually assaulting them in separate incidents in the fall of 2013.

But Crown prosecutor Maj. Maureen Pecknold argued Wednesday during a day long voir dire (trial of an issue within a trial) that the testimony of Prof. Timothy Moore wasn necessary because military and civilian judges routinely assess the credibility of witnesses and the reliability of their evidence. Moore, chair of the psychology department at York University Glendon College, teaches psychology and the law and has testified multiple times in trials as an expert witness

But Lt. Col. d concluded that knowing how memory works would not provide substantive assistance to his assessment of the credibility and reliability of the testimony he heard in this trial.

not saying that Prof. Moore is not qualified or does not have expertise to give to the court, he told the lawyers. just saying, in this case his expertise is not necessary. anticipates that he may deliver his finding next week, possibly as early as Wednesday.

In their closing arguments, however, the opposing lawyers offered the judge very different perspectives on the same evidence.

Pecknold suggested the judge should believe the accounts of the two women because Whitehead had previously had friendly relationships with both of them and counted the initial complainant as a close friend.

She argued they had no motive to lie and no reason to collude.

There was also no evidence during the trial that Whitehead had any reputation for predatory sexual behaviour or a bad attitude toward women.

Pecknold herself suggested to him during his testimony that he was a good student, who took his studies seriously. She referred to him several times as being in leadership role at the college. Prior to the allegations of sexual misconduct being levelled against him, he was captain of the men fencing team.

One of his accusers also testified that she allowed him into her room because he had always been in her experience.

But Pecknold told the judge everyone who comes through the doors of this court is a hardened criminal. She argued that Whitehead made in his behaviour toward his two classmates. She also accused Maj. David Hodson, the other member of Whitehead defence team, of contending in cross examination that consent can be implied where a woman doesn fight or explicitly use the word argued that, especially in the case of the second of Whitehead accusers, who testified that he forced himself on her in late October 2013 in her barracks room when she was too drunk to defend herself, Hodson tried to the onus on the complainant.

But is not the state of the law, Pecknold told the judge. According to her, the law requires a man to take steps to verify that a woman is consenting to sexual activity and, where alcohol is involved, he must exercise extra caution.

Whitehead initial accuser testified that after a night at a bar with Whitehead and another male cadet in early September 2013 and having consumed very little alcohol herself Whitehead came into her room and insisted on touching her. When she fled to the women showers, she claims he followed her, uninvited, and was only driven out when she turned a blast of scalding hot water on him. She testified that she was burned in the process and has a scar on her back,
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although there no documentation since she said she didn report the injury.

Whitehead disputed the accounts of both women; testified that in both instances they initiated intimacies with him; that he was invited into the showers; and that the incident with the scalding hot water never happened.

Maj. Thomas also suggested to the judge that his prosecution counterpart was misrepresenting the defence position. Hodson did not assert in cross examination and I do not assert now that there was an onus on [the second complainant] to fight off an attacker, he said.

But, a witness has said things that are untrue, he told the judge, court must take that into consideration in assessing whether you can rely on their evidence. argued that the testimony of the first complainant against his client was with inconsistencies and that demeanour in giving her evidence not that of someone trying to assist the court. He characterized her as frequently evasive and told the judge that while she claimed in court the sexual contact was all initiated by his client against her will, she told another cadet were making out. accuser and Maj. Pecknold both suggested she was referring to platonic kiss on the lips, Maj. Thomas noted, adding it was an explanation that should give the court pause: The term out is common usage, he said, it does not mean a peck on the lips. agreed with the prosecution that his client accuser consistently maintained on the witness stand that she did not consent to any intimacies with Whitehead. But, saying the same thing again and again does not make a witness credible, he told the judge.

Thomas also dismissed Pecknold suggestion that his client credibility on the issue of sexual consent was damaged by his admitted willingness to break school rules prohibiting men from entering the women showers and nixing sex in the barracks. He told the judge he leave it to him to decide whether there any probative nexus between the two.

The initial accuser was upset after her encounter with Whitehead, he suggested, not because his client had sexually assaulted her because the event had made her feel like a s . the second complainant, he told the judge, notwithstanding her testimony to the contrary, simply not remember what happened between her and Whitehead.

Three months after the event, he argued, she had no apparent recall, but would now have the court believe her memory improved over time. He also described her account in court as characterized by exaggerations and logical inconsistencies.

Thomas told the judge she testified that she was too drunk to push Whitehead away or even speak and claimed to have been terrified. Yet she testified that there was anything particularly terrifying about Alex Whitehead. also noted her and defiant demeanour in cross examination and argued, balance of probabilities suggests this particular woman would have done or said something to make him stop. her closing arguments, Maj. Pecknold suggested culpability on Whitehead part, in having sex with the second complainant after a female padre had told him that and alcohol is a bad mix. that a rule of law, that it is always a crime to have sex with someone who has had a drink? Maj. Thomas asked rhetorically, then added that the Crown prosecutor is wrong: is a difference between drunk sex and non consensual sex. predicted that the defence would cite the Jian Ghomeshi decision in closing and Thomas did. But he told the judge it was only to amplify the point that can be no relaxation of the burden of proof, which always falls to the Crown, and there is no special status afforded to sexual assault complainants.
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