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

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

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

This woman is one of two people the Agassiz RCMP are asking for assistance in identifying after a string of alleged thefts in Popkum. (Agassiz RCMP)
Agassiz RCMP ask for help to identify suspects in Popkum thefts

Images of the two suspects were captured on surveillance footage between Jan. 10 and 16

Only students who are attending in-person classes will be asked to take the Foundation Skills Assessment this year in the Fraser Cascade School District. (Unsplash)
Foundation Skills Assessment only for in-person learners: SD78

The provincial assessment will take place between Feb. 15 and March 12 for grades 4 and 7

Abbotsford’s Tradex has been transformed into a volleyball and basketball facility with Open Court. (Instagram photo)
Abbotsford’s Tradex transforms into sports facility

Open Court program hosting volleyball and basketball teams for practices and possibly games

Map of COVID-19 cases for Jan. 10 to 16 by local health area. (BCCDC)
Agassiz, Harrison COVID-19 cases heading back towards weekly normal

The area saw 10 new cases between Jan. 10 and 16, after a one week high of 19

Businesses continue to struggle under COVID-19 restrictions as the pandemic reaches the one-year mark. (B.C. government)
Another 564 COVID-19 cases, mass vaccine plan coming Friday

15 more deaths, community cluster declared in Williams Lake

A specialized RCMP team is investigating a suspicious trailer, which might have connections to the illicit drug trade, found abandoned outside a Cache Creek motel. (Photo credit: <em>Journal</em> files)
Police probe U-Haul trailer linked to illicit drugs left outside Cache Creek motel

Hazardous materials found inside believed to be consistent with the production of illicit drugs

Premier John Horgan leaves the podium following his first press conference of the year as he comments on various questions from the media in the Press Gallery at B.C. Legislature in Victoria, B.C., on Monday, January 13, 2020. THE CANADIAN PRESS/Chad Hipolito
Interprovincial travel restrictions a no-go, Horgan says after reviewing legal options

The B.C. NDP government sought legal advice as concerns of travel continue

Gem Lake Top, at Big White Ski Resort, seen at Jan. 8. (Big White Ski Resort)
Big White cancels $7.3M in lift tickets, accommodations due to COVID-19 orders

Since November, the ski resort has been forced to make several changes

Darlene Curylo scratched a $3M ticket, BCLC’s largest ever scratch and win prize. (BCLC)
Kelowna woman in shock after winning BCLC’s largest-ever instant-ticket prize

Darlene Curylo couldn’t believe her eyes when she saw the amount of money she’d won from a scratch ticket

Join Black Press Media and Do Some Good
Join Black Press Media and Do Some Good

Pay it Forward program supports local businesses in their community giving

Cannabis bought in British Columbia (Ashley Wadhwani/Black Press Media)
Is it time to start thinking about greener ways to package cannabis?

Packaging suppliers are still figuring eco-friendly and affordable packaging options that fit the mandates of Cannabis Regulations

While each person has different reasons for becoming homeless, a UBCO study shows they learn through their interactions with different services to perform ‘as homeless’ based on the expectations of service providers. (Contributed)
Kelowna homeless forced to ‘perform’ for resources, says UBCO study

One participant in the study said ‘It is about looking homeless, but not too homeless’

Gov. Gen. Julie Payette takes the royal salute from the Guard of Honour as she makes her way deliver the the throne speech, Wednesday, September 23, 2020 in Ottawa. THE CANADIAN PRESS/Fred Chartrand
Gov. Gen. Julie Payette resigns, apologizes for ‘tensions’ at Rideau Hall

Payette, who is the Queen’s representative in Canada, has been the governor general since 2017

Most Read