Evidence by complainant omitted in sexual assault trial

A Supreme Court judge has decided to omit evidence given by a complainant during a sexual assault trial after she was unable to complete a cross-examination.

The woman, who was 19 at time of trial, unable to complete cross examination

The woman, who was 19 at the time of the trial, was unable to complete cross examination. (Jeremy Eaton/CBC)

A sexual assault complainant who testified against her alleged attacker — but then simply refused to finish cross-examination — has presented a rare quandary for the justice system.

The matter in Newfoundland and Labrador Supreme Court underscores the tenuous balance between the right to cross-examine a witness — a cornerstone of the adversarial court process — with the importance of minimizing the potentially traumatic impact the legal system can have on alleged victims.

At issue is a he-said, she-said case: A 19-year-old woman said she had been sexually assaulted by a Newfoundland man, but he said the incident never happened. Court documents did not indicate when the alleged assault took place.

It would be an extremely rash or violent thing to have happen to her if she was brought in under arrest.- Crown Brenda Duffy

"The complainant says that the alleged incident which underpins the charge occurred," Justice George L. Murphy of Corner Brook said in a decision this month. "The position of the accused is that it did not."

On the second day of the trial last February, it became evident the case would not be completed in the two days allotted and additional time would be needed.

The woman became upset and asked if she could drop the charges, saying she didn't want to ruin any more of her life.

"I can't move on with my life," she told the court. "I can't go back to school until I get this over with."

She added: "I just wanna go home. I don't wanna come back here."

'She doesn't have anything left'

The woman was testifying by closed-circuit television and could have had a support person but declined.

The judge scheduled the trial to continue in late March, but the complainant did not appear in court.

When the trial resumed, Crown lawyer Brenda Duffy indicated that the complainant "doesn't want to have anything to do with it. She doesn't have anything left."

The judge asked whether the Crown would use a court order to force the woman to attend the trial, but Duffy said the Crown "does not intend to add to that emotional upset by having her arrested and brought in under force."

"It would be an extremely rash or violent thing to have happen to her if she was brought in under arrest," she said.

Signalling just how unusual the situation was for the court, it appears there were few comparable legal precedents to draw upon in deciding what to do next.

Murphy said he was "somewhat surprised" that neither counsel for the Crown or defence was able to point to any case that had previously dealt with a Crown witness under cross-examination who failed to show up for trial continuation.

"I would think that such a scenario would have been previously encountered," he said, noting that in other cases the Crown either sought a warrant compelling the witness to appear or opted not to proceed any further with prosecution.

Defence lawyer Robby Ash argued for a judicial stay of proceedings or the exclusion of the complainant's evidence.

However, Crown lawyers argued some cross-examination had already occurred, and suggested instead affording the complainant's evidence less weight or admitting the evidence from the preliminary inquiry.

Violating right to fair trial

They also said the woman was having significant emotional difficulty in testifying about a traumatic event — the alleged sexual assault.

"The Crown argued that therefore there is a very good explanation for why the complainant did not appear for continued cross-examination," Murphy said in his decision.

"While there is no doubt that I am able to conclude that the complainant became emotionally upset during cross-examination, I believe it would be an error for me at this juncture to reach any conclusion as to the reason for her becoming emotionally upset," he said.

He said it would be inappropriate for a trial judge to draw conclusions as to the reason the complainant became emotional.

"To do so requires me to accept she was sexually assaulted by the accused in a case where the position of the accused is that the incident which is alleged to have constituted the assault did not occur," the judge said.

Murphy chose to exclude the evidence given by the complainant during the trial, saying the woman's failure to complete a cross-examination would violate the accused's right to a fair trial.

"The importance of cross-examination in a case such as this where it is essentially one person's word against another person's word, with one person saying an incident occurred and the other saying it did not, cannot be overstated," the judge said. "It is critical to the defence."

Murphy acknowledged that eliminating the woman's testimony "might from a practical perspective mean the end of the prosecution of the accused."

The man is expected to appear in court again on June 22 when the Crown will seek admission of the complainant's preliminary inquiry evidence.

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