The Defendant, a 28 year old man of good character, was accused of sexual assault by two separate complainants in incidents which were 2.5 years apart.
The prosecution asserted that one of the complainants had been asleep when the sexual touching had begun. They sought to rely on evidence from the complainant’s “Fitbit” device to show that she must have been asleep when contact was initiated. This type of evidence has become increasingly prominent due to the increasing popularity of such devices. A successful S.78 application was made to exclude the evidence on the basis that the underlying data had not been recovered and its accuracy could not be properly challenged. The case also raised difficult questions concerning the cross-admissibility of each count on the indictment. The defence team secured an acquittal on both counts at the conclusion of the 4 day trial.
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