Hearsay evidence debated

Closing arguments made in attempted murder trial

Hearsay evidence provided during an attempted murder trial is simply not reliable, and the 20-year-old man accused in a violent attack on a woman in 2015 should be acquitted, says the man’s lawyer.

Lethbridge lawyer Scott Hadford argued Tuesday in Lethbridge provincial court that it would be inappropriate for the judge to convict his client on statements the victim and a witness gave before they died several months after the attack. And even though those statements were allowed at trial, Hadford reminded court the victim and witness could not testify under oath or be cross-examined, forcing the court to rely on the testimony of officers who questioned them and recorded their statements.

The accused, who can't be named under a court-ordered publication ban because he was only 17 at the time, is charged with attempted murder, aggravated sexual assault, unlawful confinement, break and enter and commit sexual assault, uttering threats and robbery. He is accused of breaking into an apartment May 3, 2015, dragging a woman outside and sexually assaulting her before cutting her throat with a knife.

During the trial, which began in December 2016, most of the evidence was presented during a voir dire — a trial within a trial — to determine the admissability of hearsay evidence. Hadford had argued the hearsay evidence should not be admitted because a witness and the woman who had her throat slit died of unrelated causes several months after the incident and couldn’t testify or be questioned during trial.

Scott said Tuesday the victim’s absence from the trial means he couldn’t question her about her statements to police, determine if they were accurate or even recorded properly. And according to a toxicology report, her blood-alcohol level was four times the legal driving limit, further casting doubt on the reliability of her statements.

However, Crown prosecutor Lisa Weich said during her submissions Tuesday the judge is required to consider the evidence the court has, not what it does not have.

Weich said there’s no reason not to accept the police officers’ evidence pertaining to the victim’s statements, and when she talked with police she was alert and spoke clearly. The witness, who appeared tired when he spoke to police, also provided a clear, concise statement and didn’t give police any reasons to be concerned about the level of his sobriety.

The witness also provided police with a clear description of the accused and said he recognized him from previous visits to the apartment with is father. He also picked out the accused from a photo lineup.

Perhaps, however, the most damning evidence is the victim's DNA that was found on the accused’s shirt.

During trial, the accused testified the DNA police found on his clothes could have come from a fight he had with two men and two women several days before the attack, suggesting one of those women could have been the victim, and that’s when her DNA got on his clothes.

The Crown dismissed the story as unreasonable.

The accused told court during his trial that he had spent the night before the attack with his sister and friends, hung around downtown for a few hours and went to a night club before returning to his sister's southside suite with his sister and several others about 3 a.m. the next day. The group continued drinking in the home, but after they began arguing the accused decided he was “done with it” and fell asleep.

When he woke up it was to police banging on the door and asking if another man was in the home. After searching the home they left, but returned sometime later and arrested the accused.

Although he testified he never left the house, and didn’t even know where the victim lived, a Crown witness testified she saw him leave the house with a duffel bag about 4 a.m., around the same time of the attack. The attacker was also seen carrying a duffel bag.

The case has been adjourned for a week, at which time a date will be set for the judge to render his decision. In the meantime, the accused remains remanded at the Calgary Remand Centre, and he will appear at the next hearing by closed-circuit TV.

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