New trial ordered in sexual assault case
Judge put defendant under more scrutiny than complainant, appeal court finds
REGINA In a two-to-one decision, the province’s highest court has granted a new trial to a local music entrepreneur found guilty of sexually assaulting a sleeping woman.
Awet Mehari, 30, was found guilty following a trial in January 2019, Regina Court of Queen’s Bench Justice Janet Mcmurtry having found he had sex with a woman who had been asleep and was therefore unable to consent. In May, Mcmurtry imposed a three-year prison term.
In January — almost exactly one year after his conviction — Mehari’s matter was argued at the Saskatchewan Court of Appeal. Through his legal counsel Aaron Fox, Mehari argued Mcmurtry had made a number of errors in reaching her conclusion.
The court reserved decision and this week, Justices Peter Whitmore and Jeff Kalmakoff voted to overturn the lower court’s decision and order a new trial. The remaining judge on the panel, Justice Robert Leurer, disagreed.
Among his grounds for appeal, Mehari argued that the way Mcmurtry handled testimony amounted to a reversal of the burden of proof; that she failed to properly consider circumstantial evidence pertaining to the complainant’s testimony she was asleep when the sexual activity began; and that she didn’t consider the defence of honest but mistaken belief that consent had been given.
The majority ultimately overturned the ruling based on another defence claim, that the trial judge applied “a more stringent level of scrutiny to the evidence given by Mr. Mehari” than to the complainant.
“Such an error means that Mr. Mehari did not have a fair trial and, therefore, a new trial is warranted,” wrote Kalmakoff for the majority.
The appeal court noted the case hinged almost entirely on credibility, given that only Mehari and the woman were present during the alleged incident.
Fox argued Mcmurtry didn’t properly examine the frailties in the complainant’s testimony while applying greater scrutiny to Mehari’s — an argument with which the majority agreed.
“This isn’t to say that I think the trial judge’s conclusion on credibility was necessarily wrong,” Kalmakoff wrote. “In fact, the jurisprudence is clear that an appellate court is not entitled to reassess credibility findings absent palpable and overriding error. However, if the trial judge in this case had applied as exacting a standard of scrutiny to the evidence of (the complainant) as she applied to Mr. Mehari’s evidence, she may well have been left with a reasonable doubt about his guilt.”
The court didn’t go so far as to find the verdict was unreasonable and not supported by the evidence, and therefore did not enter an acquittal.
In his dissenting findings, Leurer dismissed each of Mehari’s grounds of appeal.
Speaking to the grounds on which Kalmakoff based the majority decision, Leurer detailed several areas in which uneven scrutiny was said to have occurred. He found the trial judge considered the various issues in question — including inconsistencies between the two witnesses’ testimony — before preferring the complainant’s evidence to Mehari’s.
Leurer added Mcmurtry considered Mehari a “poor witness,” leading to her dismissal of his evidence. On the other hand, she found the complainant an “honest witness” who was “anxious to tell the truth.”
Leurer wrote he wasn’t prepared to question a trial judge’s read on Mehari’s testimony based solely on “a sterile transcript,” adding a trial judge is in the best position to make such an assessment.
“A trial judge does not commit the legal error of uneven scrutiny simply because, when all things are considered, she or he reaches the sometimes difficult, and always unwelcome, conclusion that an accused is a ‘poor witness’ whose testimony is not to be believed,” Leurer wrote.