Sex assault appeal thrown out

The Court of Appeal for Yukon has upheld the conviction of a Watson Lake man convicted of sexual assault two years ago.

The Court of Appeal for Yukon has upheld the conviction of a Watson Lake man convicted of sexual assault two years ago.

Donald Kinney argued that his conviction should be overturned because his accuser’s testimony was unreliable and that the trial judge, John Faulkner, failed to properly consider the flaws in her testimony.

The assault happened in December 2010.

The victim, who cannot be identified because of a publication ban, testified in the 2011 trial that she was drinking heavily the night of the assault and passed out in a bedroom at a friend’s home.

She said that she had no recollection of Kinney being at the house, but when she woke up he was having sex with her.

She pushed him off, left the house and later reported the assault to the police.

The friend who lived there did not testify, but during the trial the Crown conceded that she would have told the court the woman and Kinney were together in the living room and walked to the bedroom “hand in hand.”

During the trial the victim was adamant that she had not consented to any sexual contact with Mr. Kinney.

However, on cross-examination she said that it was possible that she walked down the hallway with him but was so drunk that she couldn’t remember.

Although she couldn’t recall much about the night, Faulkner still considered her to be a reliable witness.

“The evidence of the complainant, though sketchy in many particulars due to her degree of intoxication, is a credible story; and indeed, there did not emerge during the course of the trial any reason to think that either she has concocted or imagined what occurred, or that she has misidentified her assailant,” he said when handing down the original decision.

“She was very candid about what she could and could not recall,” he said. “She was forthright in acknowledging that she might have gone with the accused willingly and that something consensual could have occurred. When she could not recall what happened, she refused to be adamant. However, when she could recall, she was unmoved.

“At the end of the day, she maintained that she awoke to find the accused having sex with her and that this was unwanted and without her consent.” Kinney argued that there wasn’t enough evidence that she had withdrawn her consent to support his conviction and that Faulkner had made a mistake.

But the Appeal Court disagreed.

“The trial judge accepted (the victim’s) evidence that she passed out, and at that point it became impossible for her to consent to any continuing sexual activity, regardless of whether it had been consensual at the outset,” wrote Justice Daphne Smith.

The two other justices on the Appeal Court came to the same conclusion and ruled that the original conviction be upheld.

Contact Josh Kerr at joshk@yukon-news.com