The Chronicle Herald (Provincial)
Judge adjourns ruling on motion for mistrial
The judge at a Dartmouth sexual assault trial has postponed his decision on the Crown’s motion for a mistrial.
Jainish Sureshkama Patel, a former driver for a Dartmouth pizza shop, is accused of raping a customer during a delivery to her apartment in May 2020.
Patel’s trial in Dartmouth provincial court got underway April 7 but came to a halt April 13, just before lawyers were to make their closing submissions.
Prosecutor Cory Roberts instead announced he was applying for a mistrial, claiming questions posed by the judge the day before on the issue of identity had prejudiced the fairness of the trial and the Crown’s case.
Judge Alan Tufts heard arguments from counsel on the mistrial motion before reserving his decision until Tuesday.
But during a teleconference hearing Tuesday, Tufts said he was not ready to give his ruling.
“I’m going to need more time to complete my research and render my decision,” the judge explained.
Tufts is now scheduled to give his decision June 10, when he will appear via a video link from Port Hawkesbury, where he’s sitting that day.
Patel, 26, of Halifax, was working for Panada Pizza when he allegedly committed the offence at an apartment building in north-end Dartmouth on the night of May 31, 2020.
The 56-year-old complainant testified that after she paid for her food, the delivery driver touched her left breast, tried to give her an openmouth kiss, put a hand down her pants and took her into the bedroom. She said the driver told her to remove her pajama bottoms and panties and lie on her stomach on the bed, where he had sexual intercourse with her without her consent.
The woman said she cleaned the man’s ejaculate off her back with some wet wipes after he left the apartment. She gave the wipes to sexual assault nurses at the Dartmouth General Hospital, where she was examined June 2, 2020.
On cross-examination, defence lawyer Tom Singleton suggested the woman initiated physical contact with the driver and willingly had intercourse with him.
A DNA expert told the trial presumptive tests for semen and spermatozoa were conducted on the wipes but came back negative. Further testing for biological material found Patel’s DNA on one of the wipes.
After the Crown closed its case April 12, the judge asked the prosecutor if there was evidence on the essential elements of the offence, particularly on the identity of the alleged assailant.
A 10-minute discussion ensued between Tufts and Roberts. After that discussion, Singleton, who had earlier indicated Patel would be testifying, said he needed a recess to meet with his client.
When court reopened, Singleton said the defence would not be calling any evidence after all.
Roberts argued the judge’s questions were inappropriate at that point in the trial and caused “a 180-degree turn” in the defence strategy.
“Throughout this trial, it has been clear from the crossexamination of the complainant what the defence was going to be if Mr. Patel testified,” Roberts said. “This was not going to be an identity case. This was going to be about consent.”
Singleton said the Crown’s motion for a mistrial was based on pure speculation that the judge “somehow telegraphed to the defence something that resulted in Mr. Patel changing his mind about testifying.”