The Yukon Court of Appeal has ordered a new trial for a man convicted of sexual assault in 2014, ruling the Yukon Supreme Court judge who made the original ruling didn’t properly evaluate the evidence presented at trial.
Because much of the case rested on the complainant’s testimony, the judge had to make a ruling based solely on her credibility.
In this case the trial judge rejected the accused’s evidence and didn’t find that his testimony raised any doubt. But the court of appeal found a number of issues with the trial judge’s ruling.
The judge didn’t take into account evidence that contradicted the complainant’s testimony and made findings based on evidence not heard at trial, the appeal court found.
“I consider that the judgment rests on conclusions material to the credibility assessment that are either unsupported by the evidence or are based upon evidence that was misapprehended,” Justice Mary Saunders wrote for the court.
The accused was seeking to be acquitted.
“As there is a body of evidence supporting the charge, I do not consider an acquittal should be entered,” Saunders wrote.
A publication ban prohibits identifying the victim. In the appeal court’s written judgment, the accused is identified only by the initials MTL.
The case stems from the night of Aug. 31, 2013 when the complainant was at the home of the accused, who was a friend, near Whitehorse.
There’s very little in common between the two testimonies, except for the fact the two had sex.
The question at trial was whether it was consensual.
The victim testified it wasn’t, that the accused made her uncomfortable at a bar that night, touching her.
During the trial she testified she stayed at the accused’s home because she didn’t have a place to stay.
When they got to the accused’s home, he tried to kiss her and she avoided his advances.
She testified she woke up on a couch in the accused’s home, with the man on top of her.
MTL testified the sexual encounter took place when the victim came to his bed.
In its ruling the court of appeal only addressed two of the mistakes the judge made, saying those alone were enough to overturn his decision.
At trial, the accused said bite marks on the woman’s neck were a hickey the victim asked for, while she said the accused bit her “really hard” leaving bruises.
The bites were more consistent with a bite than a hickey, the judge said. But it’s not that clear-cut, the court of appeal said.
“Yet having viewed the photographs, I am unable to conclude they support (the victim’s) version of the sexual encounter as the judge said they did,” Saunders wrote.
“They are at best equivocal and do not provide a basis upon which one may say ‘the marks are more consistent with a bite than a hickey.’”
The judge ruled the victim’s testimony was largely corroborated by her partner, who also testified during the original trial.
That was simply not the case, the Court of Appeal found.
“More troubling is that in narrowing the purported area of corroboration, the statement does not grapple with obvious differences in the overall accounts of (the victim’s partner) and (the victim) that could, depending on the trier of fact’s view of those witnesses, reflect adversely on the reliability of (the victim’s) testimony,” Saunders wrote.
The court cited as an example the victim and her partner contradicting each other about how many calls they made to each other after the alleged sexual assault.
“To the extent the judge considered (the victim’s partner’s) evidence largely corroborated (the victim’s), I conclude the corroboration was on narrow and relatively undisputed facts,” Saunders wrote.
“Significant divergence between their evidence was not acknowledged in the reasons for judgment.”
Contact Pierre Chauvin at pierre.chauvin@yukon-news.com