NWT man’s conviction upheld after victim testifies for defence

The NWT Supreme Court has ruled a Behchokǫ̀ man was rightly convicted of sexually assaulting and beating his partner, even though the woman recanted her original sworn complaint and testified in his defence at trial.

The ruling denying an appeal, released on Monday, closes a case that began on January 2, 2017, when Kelvin Aaron Lafferty was charged with five counts – including sexual assault and three counts of assault – arising from incidents a month earlier in Behchokǫ̀.

Following a trial in Territorial Court, Lafferty was convicted on September 8, 2017 of one count of sexual assault and three counts of assault.

On November 24, 2017, he was sentenced to a total of 28 months of imprisonment, minus pre-trial custody credit, followed by three years of probation.

The complainant’s original statement to RCMP detailed several violent incidents involving Lafferty over a period of about two weeks, Justice Shannon Smallwood stated in this week’s Supreme Court decision.

In December 2016, the woman had told police Lafferty bit her nose and sexually assaulted her. He was said to have hit her in the head and pushed her to the ground on other occasions.

“The accuracy of the statement was a danger because the complainant had consumed alcohol and was intoxicated during the incident and when providing the statement,” stated Smallwood in her decision. “The sincerity of the statement was a danger because there was evidence that the complainant was motivated to lie because of jealousy.”

Smallwood stated that the trial judge, however, concluded the complainant was not “so drunk that she did not know what she was doing or what she was saying.” Moreover, the woman “was fairly clear and quite detailed” about some aspects of the statement. The inquiries by the police officer were not leading questions.

The original complaint

On May 25, 2017, the matter was set for trial in Behchokǫ̀. The complainant was subpoenaed for the trial but did not attend.

In an agreed statement of facts introduced at the trial, various communications were detailed between the woman and the Crown leading up to the court.

The woman expressed different thoughts at different times about the matter. At times, she said she did not want to proceed. At other times, she said she would cooperate with the Crown but was nervous about doing so.

When she failed to appear in court, the Crown sought a warrant for the woman and she was held in custody overnight. But the following day, the trial was derailed when Lafferty’s lawyer quit, citing a breakdown in the solicitor-client relationship.

An adjournment was requested so Lafferty could retain a new lawyer, but the Crown prosecutor opposed it, stating the woman was “very reticent” to come to court and was “very traumatized and wants to get this over with.”

The trial judge granted the adjournment and called the woman in front of her before a closed courtroom. The judge advised the woman of the new trial date in July and that she would be released on a recognizance which would require her to attend court.

The woman said “OK” and responded “no” when asked if she had any questions, stated Smallwood’s decision.

However, the woman did not show up for the rescheduled trial and the Crown decided not to seek a warrant for her re-arrest, intending instead to rely on her original video-recorded statement.

Court documents detail what the woman told police in that sworn statement. She describes Lafferty beating her up on the day in question in December 2016 and sexually assaulting her.

The woman also told police Lafferty bit her on her nose – hard enough to cause bleeding so significant that she described using a bed sheet to try to stop it.

During the course of the same interview the woman disclosed two other assaults, less serious, that Lafferty committed earlier that month.

Testimony for the defence

The complainant’s statement was ruled admissible and made an exhibit at the trial. However, later in the trial, the complainant showed up and instead testified for the defence.

In that testimony, she denied Lafferty had assaulted or sexually assaulted her, stated Smallwood in this week’s decision.

“She denied that [Lafferty] bit her nose, claimed that she had consensual sexual intercourse … and that her injuries were caused by her own actions. She claimed that she was intoxicated when providing her statement, had an incomplete memory of giving the statement, and had lied to the police,” stated Smallwood.

Under cross-examination by the Crown, the woman was asked about her relationship with Lafferty, including an incident where the he was convicted of aggravated assault in 2015 for again biting her nose.

Court documents show the woman required surgery to repair the damage to her face. Lafferty was sentenced in 2015 to 21 months in jail, followed by probation for two years. That included a no-contact condition with respect to the woman.

That probation order was in effect in December 2016, when he attacked her again. The Crown did not pursue the probation violation at trial.

Court documents show Lafferty has other convictions for crimes of violence, including three convictions for violence on other women.

Trial judge’s decisions ‘reasonable’

Despite the complainant’s decision to testify in his defence, Lafferty was ultimately convicted.

His appeal focused on whether the woman’s first, out-of-court statement should have been admitted at his trial. Lafferty’s appeal argued this amount to hearsay.

In dismissing the appeal, Smallwood said the trial judge’s assessment of the rules related to hearsay – and their decision to admit the woman’s out-of-court statement – were reasonable.

The appeal also claimed the trial judge erred in “allowing the Crown to introduce evidence of prior discreditable conduct without properly assessing the probative value and prejudicial effect of the evidence,” stated Smallwood in her decision.

Smallwood did state the trial judge erred when deciding to admit the evidence of Lafferty’s “prior discreditable conduct” without knowing the specific evidence the Crown proposed to bring forward.

However, she concluded the trial judge “was careful to use the evidence in a proper manner.”