R. v. Shamsuddin

R. v. Shamsuddin

Although intercourse and the accused's ejaculate on the complainant were proved beyond a reasonable doubt, the judge was left with a reasonable doubt as to whether the complainant did not consent or was incapable of consenting and whether the accused lacked the requisite mens rea; the defence of honest but mistaken belief in communicated consent had an air of reality on the evidence and the Crown did not disprove, beyond a reasonable doubt, that the accused was reckless or wilfully blind or failed to take reasonable steps under s.273.2, therefore the accused was not proved guilty and must be acquitted.

Citation
2018 NSSC 157
Parties
Crown: Her Majesty the Queen; Accused: Dawood Shamsuddin
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
27 June 2018
Procedural Posture
Criminal Sexual Assault / Trial Decision
Outcome
Not guilty (acquitted)
Legal Topics
Consent, Capacity to Consent, Honest But Mistaken Belief (mistake of Fact), Reasonable Steps to Ascertain Consent (s.273.2), Demeanour Evidence, SANE Examination, DNA Evidence
Source Language
English
Criminal Law Sexual Offences Evidence Forensic DNA Publication Ban Consent Capacity to Consent Honest But Mistaken Belief (mistake of Fact) +4 more

Case Brief

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Parties

Her Majesty the Queen

Crown

Dawood Shamsuddin

Accused

Procedural Posture

Criminal Sexual Assault / Trial Decision

Legal Issues

  1. 1 Whether the complainant consented (actus reus)
  2. 2 Whether the complainant was incapable of consenting
  3. 3 Whether accused had an honest but mistaken belief in communicated consent and whether that defence has an air of reality

Ratio Decidendi

Although intercourse and the accused's ejaculate on the complainant were proved beyond a reasonable doubt, the judge was left with a reasonable doubt as to whether the complainant did not consent or was incapable of consenting and whether the accused lacked the requisite mens rea; the defence of honest but mistaken belief in communicated consent had an air of reality on the evidence and the Crown did not disprove, beyond a reasonable doubt, that the accused was reckless or wilfully blind or failed to take reasonable steps under s.273.2, therefore the accused was not proved guilty and must be acquitted.

Court Disposition

Not guilty (acquitted)

Orders

  • Accused found not guilty and acquitted.
  • Publication ban imposed under Criminal Code s.486.4 prohibiting publication identifying witness 'JB'.