Evidence 'all over the place' in sex assault trial: lawyer

Cornwall Standard Freeholder

27 February 2008

Posted By Kevin Lajoie

A lawyer argued in a city courtroom Tuesday his client could be the victim of mistaken identity in an historic sexual abuse case.

"It's all over the place," said defence lawyer Ewan Lyttle of the case against his client, a Cornwall man who is facing charges of indecent assault and gross indecency dating back to the mid-1960s.

The man, now in his late 50s, is accused of sexually assaulting a male neighbour when he was in his teens and the neighbour was only six or seven years old.

The court has heard accounts of sexual contact between the accused, the victim and a brother of the victim. The alleged victim's brother has already pleaded guilty to similar charges and has been sentenced.

The names of those involved are protected under a publication ban.

Lyttle said the Crown witnesses - the alleged victim, the brother and a sister - were unable to provide detailed physical descriptions of the man who committed the alleged improprieties.

And aside from a few brief run-ins over the years, the witnesses did not actually identify the accused until they were in court for the trial.

There was no attempt at identifying the accused before that through photographs, a police line-up or some other fashion, Lyttle added.

"This is a stranger case," he said, noting the witnesses didn't talk or rarely saw the accused in more than 40 years.

The defence lawyer also pointed out the three witness offered three different version of events.

The victim testified the sexual contact involved oral sex, while the brother testified the contact only consisted of anal sex.

The sister claimed to have seen her younger brother performing oral sex on her older brother, but she later changed her testimony to having seen her younger brother performing the same act on the accused.

The witnesses also had varying recollections of other details like times, seasons and the surroundings, Lyttle said.

Based on all that, Lyttle concluded the consistency and quality of the evidence was not enough to support a conviction.

Crown attorney Jennifer Burke shot down the identity concerns raised by Lyttle, saying all three recognized the accused as someone they had a significant experience with previously.

While there may be some inconsistencies in the accounts, Burke said there's no denying the fact the victim, the brother and the accused were together in a bedroom when some alleged sexual contact occurred.

"That's the basic fact," she said.

As for the inconsistencies in other details, like seasons and times, Burke said it's likely there will be some mix-ups in recollections because it's based on an event that happened more than 40 years ago when those involved were very young.

"The inconsistencies lends credibility to their evidence," Burke told the court in her closing argument.

Judge Bruce MacPhee reserved his decision until April 14.