Compliment renders witness ‘unreliable’
An Ontario judge found an alleged victim’s testimony to be “unreliable” in part because the witness interrupted her testimony to tell the defence lawyer she was beautiful.
Dzenita Omerovic was on the witness stand when she addressed Toronto criminal defence lawyer Ines Gavran.
“May I just say something?” said Omerovic to Gavran, a 2013 Miss Canada. “OK,” said Gavran. “You are beautiful.” In dismissing almost all charges, Justice Joseph De Filippis said Omerovic’s testimony could not be trusted.
“The record before me shows the complainant to be obsessive, occasionally vindictive and insecure,” wrote De Filippis in the Aug. 23 decision. With regards to Omerovic being insecure, the judge noted “her observations about defence counsel’s physical appearance are instructive.”
He acquitted Guesly Gemelus of bruising Omerovic’s arm, confining her in a motel room and stealing her cellphone. However, he found him guilty on two counts of breaching bail conditions.
Alice Woolley, a University of Calgary law professor, called the decision “empirically pretty suspect” for relying on a single exchange to diagnose a witness’s character.
“You generally do not draw legal conclusion based on the kind of person someone is, you draw it based on the evidence,” she said.
This opinion was shared by Toronto criminal lawyer David Butt, who specializes in sexual assault cases.
He noted that the witness would have been under enormous amounts of stress, and could have made the comment for any number of reasons aside from insecurity.
“This judge has certainly stepped outside, in my view, the parameters of appropriate characterization of a witness,” he said, adding that the judgment would have been perfectly sound without the observation.
The judge’s comments on the exchange were “unnecessary and they were over the line,” Butt said.
Prosecutors at the trial had relied heavily on testimony from Omerovic for the assault and confinement charges.
According to Omerovic’s version of events, she was assaulted by her ex-boyfriend in two instances at the Royal Motel in Whitby in September 2016.
In the first, she said he forcibly kept her in the room and held her down on the bed to prevent her from confronting a suspected romantic rival.
In the second instance, Omerovic approached her ex-boyfriend about suspicious calls on his cellphone. She said he tried to block her exit from the hotel room and forcefully grabbed her arm as she “broke free.” Photographs taken by Omerovic show bruising on her upper arm.
Ultimately, however, the judge ruled that a physical confrontation of some kind had likely taken place, but he could not convict because prosecutors had not proven beyond a reasonable doubt that the encounters had played out as Omerovic described.
Contacted by the National Post, Gavran refused to comment on the case, saying “Justice De Filippis’ ruling and his assessment of the credibility of the complainant speaks for itself.”