Man convicted of molesting his niece in Surrey, Harrison Hot Springs, to get a new trial

The two-to-one split Court of Appeal decision was rendered on Tuesday

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.

READ ALSO: Judge acquits accused Surrey drug dealer, finding arrest was ‘unlawful’

READ ALSO: Judge annuls hairdresser’s forced marriage to boss’s relative

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.



tom.zytaruk@surreynowleader.com

Like us on Facebook Follow us on Instagram  and follow Tom on Twitter

Just Posted

Broad support for shuttle bus service in North Delta neighbourhood

71 per cent of survey respondents were in favour of having a community shuttle in Sunshine Hills

Seventh lane now open on Alex Fraser Bridge

Four lanes heading southbound, three heading northbound for now

Developer looks to build 25-storey office tower by Surrey mall

Proposed for site of former Best Buy store

5,000 ducks race at Surrey beach

‘Ducktona’ event raises funds for Royal Canadian Marine Search and Rescue Station 5

Infant’s sudden death at Surrey complex for vulnerable women prompts police probe

Officials say child was two years or younger; won’t comment on cause of death until investigation complete

VIDEO: Vancouver Island mayor details emergency response after fatal bus crash

Sharie Minions says she is ‘appalled’ by condition of road where bus crashed

Vancouver’s Tristan Connelly shocks the UFC world

Late replacement upsets big favourite Pereira, main event sees Gaethje stop Cerrone in round one

UVic president offers condolences after two students killed in bus crash

‘We also grieve with those closest to these members of our campus community,’ Cassels says

Coming Home: B.C. fire chief and disaster dog return from hurricane-ravaged Bahamas

The pair spent roughly one week on Great Abaco Island assisting in relief efforts

Newcomer Ferland lines up with sniper Pettersson as Vancouver Canucks camp opens

Ferland provides more depth and a scoring threat up front, Pettersson says

Intelligence official charged seemed to be ‘exemplar of discretion’: UBC professor

Professor Paul Evans says he served on Cameron Ortis’s doctoral dissertation committee

B.C. company gets licence to test psychedelic drugs for therapy treatment

Salvation Botanicals interested in manufacturing, testing and research and development

B.C. police watchdog to investigate man’s head injury during RCMP arrest

Suspect fled on a bicycle and fell off when an officer attempted to stop him

‘A real shame’: B.C. MLA says factors behind Tolko mill closing should have been caught

Kelowna-Mission MLA Steve Thomson said the industry is in bad shape across the province

Most Read