The law courts in Whitehorse. The Yukon Court of Appeal has ordered a new trial for a man convicted of sexual assault and breaking and entering in 2018.(Joel Krahn/Yukon News file photo)

Yukon Court of Appeal orders new trial for man convicted in 2016 sexual assault

The Court of Appeal found the trial judge erroneously concluded the man had made up his alibi

The Yukon Court of Appeal has ordered a new trial for a man convicted in 2018 of breaking and entering and sexual assault after the trial judge rejected evidence suggesting he was at home, asleep, at the time of the crimes.

In a unanimous decision released Aug. 6, Justice Elizabeth Bennet, supported by Justices Susan Cooper and John Hunter, wrote that the trial judge had concluded without evidence that the man and his ex-girlfriend had “concocted” an alibi.

The man’s name, as well as the victim’s and any witnesses’, are covered by a publication ban.

The accused is identified only as “M.J.H.”

M.J.H. allegedly broke into the victim’s home in December 2016 after having had drinks there with her and another friend earlier that day.

The victim alleged that she had gone to sleep but woke up to find M.J.H. having sexual intercourse with her. She chased him out of her house with a stove poker, she said, before calling her sister and going to a nursing station.

She eventually reported the incident to police in March 2017.

The friend testified that M.J.H. told him the next day that the victim had chased him with a poker.

The man, however, denied having told the friend that. He testified that he had not returned to the victim’s house after leaving, but instead had walked home and passed out in bed.

M.J.H.’s then-girlfriend also testified, saying she came home from work to find him asleep in bed. She said she cooked hamburger soup and woke him up to eat. He went back to bed afterwards, she said, and neither left the house again that night.

A territorial court judge rejected the girlfriend’s testimony, partly because she waited eight months after hearing about the alleged assault to talk to police and because of her “unusual” recollection of details from that day and “angry and argumentative” demeanour.

The judge concluded that M.J.H. and his girlfriend, with plenty of time to discuss details, had fabricated his alibi, and based on that finding, convicted him of sexual assault and breaking and entering.

The judge added that even if he were wrong about the fabrication, he would still have rejected M.J.H.’s testimony and convicted him.

Bennett, however, wrote that there “was not a scintilla of independent evidence, as it is defined in the law,” to support the conclusion that M.J.H. had invented an alibi.

“The sole fact that Mr. H. and (his ex-girlfriend) discussed the allegations is not evidence supporting a fabrication. If it was, every alibi put forward by a family member or friend would be seen to be concocted … (There) is no independent evidence supporting concoction that was intended to deceive the trier of fact, and the trial judge erred in so finding. He therefore erred in drawing an inference of guilt against Mr. H.,” she wrote.

“The trial judge went on to say that if he was wrong, he would still disbelieve Mr. H.’s evidence and would find him guilty,” she continued. “In my view, that additional finding cannot correct the grave error of law he made in incorrectly drawing an adverse inference against Mr. H. This is particularly so given that he gave no reasons for rejecting Mr. H.’s evidence other than that it was inconsistent with the Crown witnesses’ evidence.”

Bennett set aside M.J.H.’s convictions and ordered a new trial on both counts.

Contact Jackie Hong at jackie.hong@yukon-news.com

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