A new trial has been ordered after B.C.’s Court of Appeal overturned a sexual assault conviction in Surrey.
The accused, identified in court only as R.S.B., had been convicted on Dec. 12, 2017 of one count of sexual assault but acquitted of five other crimes on the same indictment, including assault and uttering a threat to cause death or bodily harm.
The appeal court on Jan. 23 ordered a new trial, finding the Surrey provincial court judge erred in respect to his assessment of text messages sent between the accused and his alleged victim.
Justice Mary Saunders noted credibility “was the central issue at trial.” The Surrey judge found the alleged victim to be a credible witness concerning the conviction that was the subject of the appeal and found the accused’s testimony didn’t raise a reasonable doubt, Saunders said in her oral reasons for judgment.
Saunders said the trial judge rejected his testimony on two “prongs,” namely, his claim he did not go into a room where the sexual assault was alleged to have taken place, and his claim he didn’t have sex with the complainant after late 2015.
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The trial judge found R.S.B.’s denial was inconsistent with text messages he had sent to his alleged victim but were consistent with the complainant’s claim that a sex assault occurred in April 2016.
But the appeal court found the text messages “simply are not inconsistent with the appellant’s evidence as to when the parties last had sexual relations, contrary to the judge’s finding of inconsistency that was one of the bases given for finding the appellant lacked credibility.”
Saunders also found the judge erred in finding that other text messages corroborated the alleged victim’s testimony as to when the sexual assault was alleged to have occurred.
“The erroneous interpretation of those text messages formed part of the judge’s reasoning in assessing the complainant’s credibility,” Saunders said. “I consider that both errors fatally undermine the verdict because they are material to the assessments of credibility.”
Appeal court Justices Gregory Fitch and Bruce Butler concurred.
“I would set aside the conviction and order a new trial,” Saunders decided.
tom.zytaruk@surreynowleader.com
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