Ex-pizza driver’s acquittal upheld
The Nova Scotia Court of Appeal has upheld a former Dartmouth pizza driver’s acquittal on a charge of sexual assault, finding the trial judge made no reversible errors in analyzing the evidence.
Jainish Sureshkama Patel, 28, of Halifax was accused of having sexual intercourse with a woman without her consent during a food delivery to her Dartmouth apartment May 31, 2020.
Patel’s trial got underway in Dartmouth provincial court in April 2022.
Judge Alan Tufts rendered the not-guilty verdict in March 2023, saying he was not convinced beyond a reasonable doubt that the sexual activity took place without the complainant’s consent.
The Crown appealed the acquittal, claiming Tufts made at least five errors in law in his assessment of the evidence.
The prosecution said Tufts piecemealed the evidence, failed to consider the whole of the evidence related to the live issues at trial and misapprehended the evidence.
The Crown further alleged the judge erred “by explicitly refusing to apply common sense and human experience to his assessment of credibility” and by engaging in stereotypical reasoning.
But a three-member Appeal Court panel, in a unanimous ruling released this month, affirmed the trial judge’s decision and dismissed the appeal.
The identity of the complainant, now 58, is protected by a publication ban.
The woman testified that after she paid the Panada Pizza driver for her order, he touched her left breast, gave her an open-mouth kiss and put a hand down her pants before guiding her into the bedroom.
She said the driver got her to lie on her stomach on the bed and had sexual intercourse with her without her consent.
The woman said she cleaned the man’s semen off her back with some wet wipes after he left. She gave the wipes to sexual assault nurses at the Dartmouth General Hospital, where she was examined June 2, 2020.
Patel, who’s from India. was doing a master’s degree in engineering at Dalhousie University at the time. He testified through a Guajarati interpreter that the complainant initiated the sexual activity.
The young man said that after he placed the woman’s food in the kitchen, she hugged him and touched his rear and crotch. He said he became “excited” and returned the hug.
Patel testified the woman suggested they go into the bedroom and have sex. He said she took his hand and led him to the bedroom, where they engaged in consensual intercourse in two positions.
‘PROBABILITY NOT SUFFICIENT’
In his decision, Tufts said “it is possible, or perhaps probable, the events may have unfolded the way the complainant testified. However, probability is not sufficient to discharge the criminal burden of proof.”
The fact Patel misled investigators and refused to admit he’d had sex with the woman does not necessarily mean the sexual activity was non-consensual, Tufts said.
“The reality is people do lie about having sex,” he said. “This not an unknown occurrence.”
Tufts said he found certain aspects of the complainant’s testimony “troublesome.”
“She testified the accused turned her around when they were in the kitchen/bathroom area and ‘guided’ her to the bedroom,” the judge said. “She said she went blank and tended to ‘disassociate’ herself with what was happening. … I do not accept this.”
In the Appeal Court decision, Justice Anne Derrick found Tufts considered the whole of the evidence in his assessment of whether the Crown had met its burden of proof.
“The trial judge concluded he did not find (the complainant) a ‘compelling and convincing’ witness,” Derrick wrote for the panel, which also included Chief Justice Michael Wood and Justice Ted Scanlan. “His assessment of her credibility attracts deference on appeal. We are not to re-do the credibility analysis and weigh differently the factors he considered. The appellant is effectively seeking to have us do so.”
Derrick also said Tufts appropriately cautioned himself on the risks associated with common-sense reasoning in sexual assault cases and was careful not to engage in stereotypical reasoning.