A Penticton judge chided police for an inadequate investigation as she delivered a not-guilty verdict for a man accused of sex assault on a then-13-year-old babysitter at a party.
The verdict came from the judge who held serious reservations about the the testimony of the man, who can only be identified as B.J., and with scathing critique of police work from the defence attorney.
At the same time, Justice Alison Beames had a strong endorsement of the testimony of K.D., who Beames said she had no doubt was assaulted that night.
“I have absolutely no hesitation in accepting in the main her evidence about having been assaulted. Through no fault of hers, she was never asked to identify the accused,” Beames said.
But Beames also said a supporting woman’s testimony, one of the owners of the house, identifying B.J. was likely swayed by her belief of K.D.
B.J.’s short trial only kicked off this week and examined the night of Oct. 16, 2016 where an engagement party was taking place at an Oliver residence.
K.D., babysitting at the party, said she fell asleep on a couch after putting kids to bed, and testified she was awoken during the night, finding her pants pulled down and underwear pushed aside, with a finger rubbing inside of her vagina. She was able to provide a description of the man who assaulted her, noting he wore white shorts, which became a focus of the trial, with conflicting evidence of whether or not B.J. ever wore white shorts that night.
She also testified she had not seen B.J.’s tattoos, described by the judge as easily noticeable.
Upon arrival, Const. Martindale with the Oliver RCMP walked into the backyard, where B.J. was talking with another party guest, and testified to hearing B.J. say he “didn’t know how old she was,” and found that to be probable cause for arrest.
Beames was firm in rejecting B.J.’s attempt to link those words to consensual interactions with an adult woman in a hot tub at the latter end of the night, also calling it “unlikely” that he walked naked through the house, where he knew children lived, after leaving the hot tub, without drying off.
The investigation was also fraught with issues, according to both the defence and Beames.
Notably missing from the trial was testimony from homeowner, who could have contextualized B.J.’s comments on a female’s age — testimony the Crown could have brought forward.
K.D. was not given an opportunity to identify B.J., whom she does not know, until a preliminary inquiry, which Beames called a “notoriously frail form of eyewitness identification.”
Martindale also did not take notes of the incident to back up any of his testimony, or to document what items were taken from B.J., including clothing.
“The other what-ifs are: did the police arrest him? Did they take his clothing? What was that clothing? We don’t have that,” defence lawyer Don Skogstad asked.
“I know, the notes are…” Beames said, trailing off, before Skogstad interjected to say “It’s pitiful, really.”
And while Martindale seized the girl’s underwear, he did not submit it for DNA testing.
While she remained factual in most of her assessment, when those issues were brought up by defence lawyer Don Skogstad, who called it “so incompletely investigated,” Beames made clear gestures of agreement with Skogstad.
“You’re put in a position of trying to judge a case that’s so incompletely investigated, really. But that can’t burden the accused; that can only hurt the Crown,” Skogstad said.
Beames appeared to agree with that characterization.
“I emphasize again that none of the frailties in the Crown’s case are the fault of K.D., who clearly was the victim of a sexual assault. She was, as I have said, a good witness, and I consider her to be very courageous.”
Beames ultimately found that she could not say beyond a reasonable doubt that B.J. was K.D.’s assaulter.
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Dustin Godfrey | Reporter
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