A man who was convicted of groping a woman while she slept has had his conviction overturned by the Court of Appeal, which ruled the trial judge misdirected the jury prior to their deliberations.
The appeals court decision was handed down in August, some 15 months after Corey Robert Dodge was sentenced to three years and three months in prison in April 2019 for a single count of indecent assault.
Prior to the incident, which occurred in the early hours of 17 June 2017, Dodge and the complainant “knew of each other but had not previously met”, according to the written judgment. However, on the night in question, they were both at a gathering at Dodge’s neighbour’s house. When the woman went to sleep in a bedroom, Dodge left the premises but later returned and entered the room where he found her sleeping alone.
During the trial, Dodge admitted to touching the woman’s breasts but said he did so under the impression that she was consenting to the encounter. The woman denied Dodge’s claims and said she did not consent to being touched, instead that she was awoken to the feeling of being groped.
According to the original judgment, Dodge fled the scene after he panicked when the woman woke up and screamed.
In their written judgment, the appeals court judges said Dodge’s conviction was “unsafe”.
The judges referred to a section of Justice Marlene Carter’s summation of the trial, which dealt with Dodge’s evidence on whether he believed the woman had consented to being touched.
“We are bound to observe that this part of the summing up was profoundly unsatisfactory in that it was extremely confusing and gave the distinct impression that it was for the Appellant to prove that he honestly believed his touching was consented to when… it was plainly for the prosecution to prove that he did not believe that the complainant was consenting to the touching,” reads the judgment in part.
The judges also took issue with the manner in which Justice Carter dealt with queries from the jury.
“We are in no doubt that the judge was in serious error to proceed in this manner engaging as she did in a debate in open court with members of the jury,” reads the judgment.
The judges said Carter should have asked the jurors to write out their questions, and then discuss them with the defence and prosecution attorneys, “before dealing with it in open court if she thought it was appropriate”.
The prosecution did not seek a retrial of Dodge, who was released from custody.