Kevin Wilson
Northern News Services
Yellowknife (Jun 27/01) - A Fort Good Hope man imprisoned eight months for sexual assault is free after the territorial Court of Appeal quashed his conviction.
Steven Jones Kelly was sentenced to three years' imprisonment last June by a Yellowknife jury for the alleged assault, but the Court of Appeal ruled that the trial judge denied the jury in "meaningful assistance" to questions they had about evidence presented. A previous trial ended in a hung jury.
"My client, as you can imagine, is extremely relieved," said James Brydon, Kelly's appeal lawyer.
Brydon added that since the conviction was quashed, the Crown has since decided to stay the charges against Kelly.
Kelly was charged after a Yellowknife woman filed a complaint against him in May 1999. He had been visiting the home of the complainant and her husband.
On the last day of a three-day drinking party at the couple's house, the complainant and her husband went to their bedroom. Before passing out, she undressed and had sexual intercourse with her husband.
A short while later, she claimed to have woken up, finding Kelly "on top of her" and attempting to have intercourse with her. According to her testimony, Kelly's face was "right there."
Kelly claimed he'd been looking for a bottle of liquor hidden under a pillow in the bedroom. According to testimony, "indeed, a bottle was found."
The woman filed a complaint with the RCMP, but did not inform police that she'd had sex with her husband. She was taken to hospital to be examined for evidence of sexual assault. DNA samples obtained from the complainant matched only the woman's husband.
During the second trial, the jury asked two questions of the judge dealing with the complainant's statement to police and procedures used for examining a sexual assault.
According to the Court of Appeal decision, the trial judge, Supreme Court Justice Ted Richard, did not provide satisfactory answers to the jury's questions.
"A passing reference (to the complainant's reliability and her capacity to comprehend what was happening to her) does not, in our view, suffice," the Court of Appeal stated in their written ruling.
On the issue of the DNA evidence, the court said, "the lack of physical evidence implicating the appellant in the crime charged should, at the very least, have been noted for the benefit of the jury."
In the appeal court's view, "these omissions render the verdict unsafe."
The court issued the ruling immediately after hearing the Crown's submission. Brydon did not make a submission during the appeal.
"I took their advice and kept my mouth shut," he said.
Kelly told Yellowknifer Tuesday that he was still "kind of mad, because I spent almost a year in jail for something I didn't do." Upon having his conviction overturned, Kelly said the first thing he did was go, "straight to my own bed" in Fort Good Hope.
