The Judgment of Sexual Abuse was revised by the Appellate Court of Alberta after the judge "entered the conflict" and acted as a victim's lawyer, interrupting and rejecting the woman's complaint to the appellant to the extent that he had created an unfair trial.
The 2017 trial in Fort McMurray heard the testimony of a woman who was drinking with a friend and a friend at the bar. The three men then went home to one of the men, where they got sick and fell. She testified that the next thing he remembered was to be naked on the bed in the dark room with two men. One raped her, and another held her arms, she said.
She ran into a cold night without a shoe, purse or jacket. Soon, two men who came to look in the car were picked up by secretly recording them before the police stopped the car and she left with the cops.
Two were arrested and charged. The defendant testified in the appeal at the trial, saying that he had gone to bed that night and woke up to find a quarrel with his friend. He refused to attack her.
After giving her testimony in the court by answering the questions of the Krunski Prosecutor, the defendant's defendant then questioned the woman, a process called cross-examination, which was part of the court rule that enabled the accused to fully answer the defendants.
During cross-examination, trial judge Stephanie Cleary had almost fifty-fold injured, despite issues involving only 30 pages in the 325-page transcript of the trial, the Appellate Court announced.
"The judge entered the conflict and, unfortunately, undoubtedly unintentionally did so to defend the defense with the appearance of an unfair trial," the Judgment of the Appeals Chamber issued on 18 January.
The net effect "of the defense has prevented the examiner of the evidence of the complainant".
Cleary provided other interventions during the trial, including during the testimony of the prosecutor, but the Appellate Court found that these interruptions were different.
"It seems that the topic of these earlier engagements is generally directed at making the complainant do as pleasant as possible or to ensure that the (Spanish) translation is as accurate as possible," the Appellate Court states.
"A review of the transcript … reveals a significant number of situations in which a judge of trials prevented the defense attorney from posing certain questions without having previously received a complaint from the ombudsman or reformulated them so as to respond to her version of the issue, not from the defense.
"Many of these situations would not be enough to establish that the trial was unfair or that the defender was unable to improve the defense. However, cumulatively taken into account in the context of numerous additional engagements that the judge has pronounced to limit the cross-examination of the complainant, we conclude that the defense was endangered. "
The cumulative effect of Cleary's intercourse has created an impression of hostility towards the defense that contributed to the total justice of the trial. They have gone far beyond and above the interviews "necessary for the good functioning of the trial.
Many of these situations would not be enough to establish that the trial was unfair
The Appellate Court said cross-examination issues were not inappropriate because it meant humiliating a woman, as it was worrying about some rape trials, but were often "the typical questions asked by any cross-examineer."
The Appellate Court has said that there are cases when trials in a sexual assault trial are necessary, as when the defense makes "accidental blows in the complainant's reputation or unfounded issues focused on discredited" myths about rape "in the sense that the complainant was unclean or an excited state increased the likelihood of agreeing to the sexual activity involved. "
That was not the case, the Appellate Court stated.
The new accused, Yeider Quintero-Gelvez, ordered a new trial of the other judge. The name of the complainant remains under the banning of the publication.
The case is another example of the difficulties that may arise in sexual assault trials, where court rules may seem contrary to social preferences.
In 2017, the Appellate Court in Ontario abolished condemnation for sexual abuse because the judge used "unreasonable and abusive language" to the accused person and "let his personal feelings … take over his objectivity".
That same year, the court in Ontario also annulled the condemnation of sexual assault on Mustafa Ururyar in a very publicized case. The judge issued a bizarre decision of 179 pages citing academic studies and literature on sexual assault, including three pages that I know how to sing a bird in Maya Angelou cage.
A new trial was ordered, but it was not held, and the peace bond resolved the indictment.
Cleary was appointed as Judge of the Provincial Court of Alberta in 2008. Her appointment came after two years as Acting Principal Crown Prosecutor in Medicine Hat, several years as a prosecutor in New Scotland and two years as a lawyer in private practice.
When Alison Redford appointed the bench, the then Justice Minister and the future conservative Prime Minister praised her for establishing a specialized court for domestic violence in a medical hat.
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