Crown appeal from jury acquittal on a first degree murder charge. Victim was found dead in a bathtub in a hotel room occupied by the accused. She died from blood loss from a more than 11 cm long perforation of her vaginal wall. Accused claimed that the injury was caused by accident and that it occurred during consensual sex.
Held: Appeal allowed, new trial.
“[T]he time has come to push the reset button for jury trials in this country for cases involving an alleged sexual assault … Key provisions in some jury charges have fossilized concepts Parliament sought to remove a quarter century ago … despite efforts to thwart them, myths and stereotypes continue to stalk the halls of justice … these persistent presumptions and problematic jury charges reduce the entitlement of individuals to the equal recognition and protection of the law”. Errors included: referring to the deceased as a ‘prostitute’, and admitting the accused’s evidence re: prior sexual intercourse with the deceased, without a s 276 CC haring; (2) this was compounded by referring to the deceased as a ‘native woman’ without a specific jury caution; and (3) errors in the instructions on consent and mistaken belief in consent. (Also other errors on manslaughter, motive, and after the fact conduct).
D. Bottos – Defence Counsel