Newfoundland judge tosses abuse victim’s recantation overboard

When a Newfoundland judge was about to sentence the skipper of a fishing boat for trying to throw his wife overboard, he suddenly found himself in a tricky legal position.

The skipper’s wife — the victim of the crime that had just been proved beyond a reasonable doubt — came forward to say it never happened, that she made it all up because she was angry.

This was a problem, raising fears of a miscarriage of justice, and the judge’s ultimate solution is a rare illustration of the law on victims who recant criminal accusations.

When he briefly reopened the trial last week, Judge Wayne Gorman had already convicted Trent John White of assault and aggravated assault, plus mischief for actually throwing his wife Jessica Decker’s cellphone into the heaving North Atlantic during a fight over her use of opiates. White admitted throwing the phone, but could not explain why, and denied assaulting her.

As White put it, bluntly, if he “wanted to throw her overboard, she would have been overboard.”

But Gorman did not believe his denials. He believed the two crew members who were aboard the boat in the Labrador Sea in the summer of 2017, fishing for turbot, when they heard screaming from the back of the boat. They testified they found White and Decker struggling, with Decker halfway over the side.

As crew member Eustace Hewlin put it: “Well we heard a loud scream — me and (another crew member) was up in the wheelhouse; I think we were eating a sandwich at the time, or I was, and then I heard a scream — like, a desperate scream for help, and both of us barrelled back to the deck of the boat where we observed — Jessica was over the side of the boat with her fist grabbed — her hand grabbed around the fish trays, and one leg was still in over the boat. So, immediately we just grabbed Jessica and hauled her back in over and from there on I don’t know — I can’t say too much after.”

Had Decker actually gone overboard, Hewlin testified, they would never have been able to get her back, given the rough sea.

In considering whether to pursue this new claim that the victim lied, the judge decided the risk of wrongful conviction demanded he interpret the law liberally and re-open the trial, even after reaching the guilty verdicts.

He decided he could not refuse to hear from Decker on technical grounds, simply because she had been subpoenaed by the Crown and was present at the trial, but not called as a witness by either prosecution or defence.

Not calling her was “a reasonable and tactical decision made by Mr. White’s former counsel,” based on the fact, as the lawyer later explained in an affidavit, that she gave inconsistent versions of her recollections. White got a new lawyer after his conviction.

A tactical decision by defence counsel is not normally enough to warrant reopening a trial, but Gorman let Decker testify to see if it would alter his verdicts.

She said she lived with White through the spring and summer of 2017, and that she has an addiction to opiates, and he to alcohol, but that their relationship was “great.” At the time of the fishing trip, she had given him all her pills, so he could dole them out slowly to wean her off. She said they would often fight, typically at her instigation, which is what happened the day of the assault. She said she threatened to kill herself by jumping overboard, and White said to go ahead. She said she tried to make it look like he was hurting her, which is how they came to be struggling when the other two crew intervened.

She did not report the assault until several months later, when she spoke to police after they responded to reports that he was assaulting her on a roadside.

She was interviewed by an officer, but as she told Gorman, she lied and exaggerated for two reasons: to get back at White, and to divert police suspicion from her own possession of drugs and the fact she had just driven a vehicle. She claimed she was high during the interview, but the police officer found her sober and had no concerns about her mental state.

So the judge re-opened the trial and heard her out, but it had no effect on the convictions. He concluded Decker was not being honest, and that her recanting was “purposefully false” and designed to help her husband, who faces a significant jail sentence.

“I do not accept Ms. Decker’s evidence as being reliable or honest. It does not, in the context of the totality of the evidence presented cause me to have a reasonable doubt. It does not cause me to alter any of my verdicts,” Gorman wrote in his new decision this week.