Sexual assault conviction overturned, new trial ordered
A North Vancouver man who was found guilty of sexually assaulting and assaulting his former girlfriend has had his conviction overturned on appeal.
In May 2015, B.C. Supreme Court Justice Gail Dickson found Mohammadmahdy Hamzehali guilty of the offences against his ex-girlfriend, who cannot be identified due to a publication ban.
The judge concluded that Hamzehali slapped S.M. over the face one day in May 2013, leading her to distance herself from him. She found that Hamzehali did not accept the decision and tried to continue their relationship, assaulting S.M. again and sexually assaulting her in an act of nonconsensual intercourse.
Hamzehali, who came to Canada from Iran and has permanent-resident status, was sentenced to 23 months in jail followed by three years of probation.
On appeal, Hamzehali argued that there had been a miscarriage of justice primarily due to the “ineffective assistance” of his lawyer at the trial. A three-judge panel of the B.C. Court of Appeal has agreed that the cumulative effect of the lawyer’s conduct clearly fell below the standard of reasonable professional judgment.
The main issue on the appeal was lawyer Hubert Gawley’s handling of text messages between Hamzehali and the complainant and the decision not to cross-examine her on those messages.
Hamzehali’s lawyers on the appeal pointed out that Hawley provided the text messages to the Crown before they were officially translated and later informed the prosecution that he didn’t use the messages because he believed they had been manipulated. The lawyers on the appeal also argued that Hamzehali was not properly informed that the Crown had offered a favourable plea resolution.
In her reasons for judgment, Justice Elizabeth Bennett concluded that while some of the allegations against Gawley would not individually fall below reasonable professional judgment, the cumulative effect of them was to do so. “In my view, Mr. Hamzehali did not receive a fair trial, and thereby a miscarriage of justice occurred,” said Bennett, who set aside the conviction and ordered a new trial.