A new trial has been ordered for a man accused of sexually molesting his niece in Surrey and Harrison Hot Springs.
The Court of Appeal’s two-to-one split decision was rendered on Tuesday in Vancouver.
That man, whose name is subject to a publication ban to protect the alleged victim’s identity from being revealed, was convicted by a jury of sexual assault and sexual interference following a six-day trial in B.C. Supreme Court in New Westminster and was sentenced to 30 months in prison.
The crimes allegedly occurred between 2006 and 2011. The victim alleged her uncle sexually touched her at her grandmother’s apartment when she was in Grade 5 and during a family camping trip when she was in Grade 6. She told her mom about it when she was in Grade 9.
He appealed his convictions, in the Court of Appeal for British Columbia in Vancouver, claiming the trial judge failed to provide the jury with sufficient instructions concerning credibility and also failed to adequately answer a question from the jury.
Justice John Savage would have dismissed the appeal. He noted that while the accused submitted the judge provided the jury with insufficient instruction on credibility, “he does not argue that anything anyone said to the jury at any point was wrong.”
“The judge gave clear, complete instructions on credibility in his initial charge, and given this initial charge, I do not think the jury could have been left with an erroneous view of the law,” Savage wrote in his dissenting reasons for judgment.
“The jury was given ample instruction on assessing credibility and the burden and standard of proof,” he found.
Justice Nicole Garson disagreed with Savage’s conclusion “for three main reasons,” and Justice David Harris concurred with Garson. “I would allow the appeal and order a new trial,” she said.
“First, the judge’s charge to the jury was confusing in the context of the manner in which the indictment was drawn. The judge failed to adequately explain to the jury that the indictment charged two offences which covered a period of time during which two separate incidents were alleged to have occurred,” Garson reasoned.
“Second, when the jury returned with a question that appears to have arisen from confusion about the two offences and two incidents, the judge engaged in a confusing colloquy with the foreperson and did not clearly answer the question,” she further explained. “Third, the jury question raised the issue of whether the jury could reject the complainant’s evidence about one of the incidents, but accept her evidence about the other. The possibility that the jury was rejecting a significant part of the complainant’s evidence should have led the judge to provide further instructions on credibility.