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Client found not guilty of Sexual Assault and Assault after a three-day trial in the Ontario Court of Justice, Brampton.  D.M. was in an unhappy marriage.  Both he and the complainant were thinking about ending the marriage.  The complainant had an argument with D.M. and while he was out with a friend, she contacted police and alleged a historical sexual assault and an assault.  D.M. was charged. He retained Joseph Neuberger of Neuberger & Partners LLP to defend him.  Joseph obtained a complete history and worked with the family lawyer representing D.M. in the matrimonial proceedings.  The pleadings showed the complainant filed for divorce days after the arrest of D.M. and asked for an unequal distribution of the matrimonial assets and alleged a history of abuse both verbal and physical.  The pleadings outlined significantly more allegations than her sworn police statement.  Further, Joseph Neuberger, sent D.M.’s smart phone to an expert to do an extraction of lost messages between the parties including days leading up to the argument and the day of the argument.  Through the forensic analysis, relevant messages were obtained that showed the complainant was in fact asking D.M. to not leave the marriage and to work through their differences. However, on the day the complainant contacted police, she accessed his phone and sent herself a message thread D.M. had with another women about going away for the weekend.  The message thread appeared that D.M. was starting a relationship with another woman and thus, seemed to be a motive for the complainant to make an allegation due to her anger at D.M.  The matter proceeded to a motion under section 276/278 of the Criminal Code to have the messages admitted. The motion was successful. At trial, the complainant was confronted with a series of messages that undermined her story to police, including rebutting that she was the one who wanted to end the marriage.  Further, material inconsistencies were raised through cross-examination on her family pleadings.  Finally, the forensic evidence demonstrating that she accessed his phone and retrieved D.M.’s message thread with another woman created a strong motive to fabricate. Rather than just admitting that she had accessed his phone and sent the message thread to herself, she denied it.  The defence called the expert and had admitted the forensic extraction into evidence.  After testimony of D.M. and detailed written submissions, D.M. was found not guilty of both counts of Sexual Assault and Domestic Assault.