N.L. judge faces rare legal dilemma in sex assault case

Right to cross-examine vs. minimizing trauma a fine balance for courts

A sexual assault complainant who testified against her alleged attacker — but then simply refused to finish cross-examination — has presented a rare quandary for the justice system.

The matter in Newfoundland and Labrador Supreme Court underscores the tenuous balance between the right to crossexamine a witness — a cornerstone of the adversarial court process — with the importance of minimizing the potentially traumatic impact the legal system can have on alleged victims.

At issue is a he-said, she-said case: A 19-year-old woman said she had been sexually assaulted by a Newfoundland man, but he said the incident never happened. Court documents did not indicate when the alleged assault took place.

On the second day of the trial last February, it became evident the case would not be completed in the two days allotted and additional time would be needed. The woman became upset and asked if she could drop the charges, saying she didn’t want to ruin any more of her life.

“I can’t move on with my life,” she told the court. “I can’t go back to school until I get this over with.”

The woman was testifying by closed-circuit television and could have had a support person but declined. The judge scheduled the trial to continue in late March, but the complainant did not appear in court. When the trial resumed, Crown lawyer Brenda Duffy in- dicated that the complainant “doesn’t want to have anything to do with it. She doesn’t have anything left.” Justice George Murphy asked whether the Crown would use a court order to force the woman to attend the trial, but Duffy said the Crown “does not intend to add to that emotional upset by having her arrested and brought in under force.”

Signalling just how unusual the situation was for the court, it appears there were few comparable legal precedents to draw upon in deciding what to do next. Murphy said he was “somewhat surprised” that neither counsel for the Crown or defence was able to point to any case that had previously dealt with a Crown witness under cross-examination who failed to show up for trial continuation.

Defence lawyer Robby Ash argued for a judicial stay of proceedings or the exclusion of the complainant’s evidence. However, Crown lawyers argued some cross-examination had already occurred, and suggested instead affording the complainant’s evidence less weight or admitting the evidence from the preliminary inquiry. They also said the woman was having significant emotional difficulty in testifying about a traumatic event — the alleged sexual assault.

Murphy said it would be inappropriate for a trial judge to draw conclusions as to the reasons the complainant became emotional.

Murphy chose to exclude the evidence given by the complainant during the trial, saying the woman’s failure to complete a cross-examination would violate the accused’s right to a fair trial.

The man is expected to appear in court again on June 22.