Former cabbie found not guilty at retrial for sexual assault of unconscious woman
Published Wednesday, September 4, 2019 10:24AM ADT Last Updated Thursday, September 5, 2019 7:30AM ADT
HALIFAX -- A former Halifax taxi driver who faced a high-profile retrial for sexual assault of an intoxicated, unconscious woman in his car has for a second time been found not guilty.
Bassam Al-Rawi was originally charged after a woman who was naked from the waist down was spotted by police officers shortly after 1 a.m. on May 22, 2015 in the back seat of the vehicle he was operating.
Judge Ann Marie Simmons delivered her acquittal in Halifax provincial court Wednesday after a two-week retrial earlier this year.
She concluded reasonable doubt arose over issues including whether Al-Rawi was able to reach back from the driver's seat and remove the woman's urine-soaked pants and underwear, as alleged by the Crown.
"I'm not satisfied that the Crown has proved it was Mr. Al-Rawi who removed her clothing ... and I'm not satisfied the Crown has proven Mr. Al-Rawi touched her body with his lips," the judge said in the closing portions of a three-hour long decision.
During the trials, the court heard the woman had been highly intoxicated and had urinated in her pants. Al-Rawi's testimony was that she removed her own wet clothing.
Al-Rawi was originally acquitted by Judge Gregory Lenehan in 2017.
In his oral ruling, Lenehan said there was no evidence of a lack of consent or a lack of capacity to consent. His comments sparked public outrage. In particular, the judge faced sharp criticism for saying: "Clearly, a drunk can consent."
An independent judicial review committee dismissed complaints against Lenehan last year, saying it found no evidence of impermissible reasoning or bias.
Still, a unanimous decision by the Nova Scotia Court of Appeal concluded Lenehan erred in law by finding there was no evidence of lack of consent, and in 2018 it ordered a new trial.
In Wednesday's ruling, Simmons said the woman's level of intoxication clearly showed she couldn't consent.
She noted the young woman began drinking beer after 8 p.m. on May 21, 2015, ate no food and then went to another bar, drinking one or two mixed drinks and two shots of tequila.
"It goes without saying that while she was lying unresponsive, she could not have consented to sexual activity," said the judge.
However, Simmons found problems with the evidence of sexual assault or physical contact by the cabbie.
"Mr. Al-Rawi's account of the nine minutes during which (the complainant) was in his taxi was compelling. An extraordinary story without question, but not, as the Crown urges, implausible or incredible," said the judge.
She noted his testimony the woman had kissed him on the cheek and had taken his ball cap off him, creating opportunities for "secondary" transfer of her DNA onto his lips.
The judge also said that had Al-Rawi wished to, he could have turned his taxi towards a more secluded area to commit an assault.
Instead, "he drove his taxi to a neighbourhood with houses on both sides of the street, stopped the car at least one metre from the sidewalk such that the car was not hidden and in plain view, parallel to a fire hydrant and left the car (engine)running," she said.
The judge also had trouble accepting the various scenarios of the tall man removing the woman's clothing.
"It is alleged that at six-foot, two-inches tall, in the confines of a Honda Civic, Mr. Al-Rawi was able to reach into the back of the taxi, remove wet, tight jeans from her body, all while the taxi is idling and he is found in the front seat of the car just nine minutes after (the woman) had entered the taxi," said the judge.
Simmons said she also was "not persuaded" Al-Rawi exited the front seat of the taxi, entered the back seat, removed the jeans, and returned to the front seat of the idling car during the stop in the residential neighbourhood.
Overall, the jurist concluded the Crown was asking her to make too many inferences and to engage in speculation.
"Is the circumstantial evidence in this case, viewed logically and in light of human experience, reasonably capable of supporting an inference other than that the accused is guilty?" she asked.
"The answer is yes."
Al-Rawi declined comment on his way out of court, but defence lawyer Ian Hutchison said his client was extremely relieved and pleased by the result.
"It's been a very, very difficult time for him. He's lost his business. He's lost his good name. He's been subject to what can only be described as visceral attacks on social media," he said.
"He would ask the decision be accepted, be respected by the public and that he be allowed to move on with his life and put this incident behind him."
Al-Rawi faces another trial in 2020 for a second alleged sexual assault the Crown says occurred in 2012.
Police had decided in March 2013 there was insufficient evidence to charge Al-Rawi in the case, but took another look at the file in 2017 and decided there were grounds for a sexual assault charge.