“Sometimes sexual activity can occur covertly in the presence of other people, but without others realizing it,” he said.
“You can use your own life experience, not necessarily your own personal life, but your life experience in general to appreciate the force behind that comment of mine and think about it in terms of the evaluation.”
In summarizing the evidence at trial, Judge Hampel went on to describe an issue as “evidence of disclosures made by [the complainant] over the years her father had sexually abused her. “
Generally, lawyers and judges use the word “complaint,” but Judge Hampel said it was not “always a particularly accurate term” and the disclosure was more neutral.
She then went on to tell the jury, in what she called a comment rather than an instruction, that making a disclosure or speaking is “not an easy thing to do, you might think, and it might take something of courage to do it.” .
Attorneys for the defendants, led by Theo Kassimatis, QC, and attorneys at James Dowsley & Associates, said the jury might have thought Judge Hampel viewed the plaintiff as an honest and trustworthy witness.
Appellate judges said Judge Hampel’s comment on eyewitnesses should not have been made because it addressed an important issue of fact in dispute, in a case in which the plaintiff’s credibility was a central issue.
“The judge’s comment significantly undermined a substantial part of the plaintiff’s defense, namely the improbability of the plaintiff’s account of sexual offenses against her of the type described in a room where other people were present,” the appellate judges said. .
It amounted to substantial judicial error, they said, and could have improperly swayed the jury.
Appellate judges, who confirmed all three grounds for appeal, said that by saying that courage was needed to make a disclosure, the jury could have understood that Judge Hampel was suggesting that courage was needed for the plaintiff to come forward.
“From one point of view, it would only take such courage if those accusations were true,” they said.
A new test date has not been set yet.
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