Lawyers have until the end of the year to find a witness whom a judge will allow to be recalled to give further testimony at David Wesley Bobbitt’s dangerous offender hearing.
In his decision Tuesday in B.C. Supreme Court in Penticton, Justice Peter Rogers ruled Bobbitt’s right to defend himself outweighs the harm from any delay that may come with tracking down the woman, whose whereabouts are unknown.
Rogers gave the Crown and defence until Dec. 31 to find the woman and have her reappear at the hearing, otherwise he will rescind permission to have her recalled.
Bobbitt, 38, has pleaded guilty to seven offences related to the 2011 assault and unlawful confinement of a different Penticton woman inside his second-hand shop.
The Crown is seeking to have him declared a dangerous offender, which carries an indeterminate jail sentence, based partly on a similar assault in Penticton in February 2007 he’s alleged to have committed on the woman who will be recalled to court.
That woman, whose name is protected by a publication ban, testified in June she feared for her life when Bobbitt assaulted and raped her inside his home.
Mounties investigated the incident and later recommended charges, which the Crown did not approve.
Penticton RCMP Cpl. Dan Moskaluk, who led the 2007 investigation, was asked under cross-examination last month what reason he was given for the charges not being approved, but the Crown objected before he could answer.
Lawyers are still arguing this week over whether the charge assessment sheet, which contains an explanation, should be released to defence counsel James Pennington or whether it’s protected by solicitor-client privilege.
Moskaluk also testified he’d investigated a domestic disturbance in March 2007, involving the same woman and a different man, who claimed to have been assaulted by each other, but that police never recommended charges in that case. It’s testimony about that incident for which Pennington successfully applied to have the woman brought back to court in order to test her credibility. Rogers said he expects Pennington’s cross-examination about the March 2007 incident will aim to show the February 2007 allegation is “at least suspect, or, at the best for Mr. Bobbitt, not true.”
The judge added he’s concerned locating the woman may further delay a hearing that has been “anything but expeditious” since it began in June, but noted Bobbitt is facing the “most severe sentence permitted by the Criminal Code” and has the right to make a full defence.
Rogers ruled, however, that an open-ended delay would have “the effect of diminishing the reputation of the justice system” in the eyes of the public and therefore placed a time limit on efforts to find the woman.
The hearing is scheduled to continue through this week.
Bobbitt, who has a shaved head and goatee and wears jail-issued orange clothing and shackles on his ankles, has quietly observed the proceedings from the prisoner’s box.
