Judge wrong to use woman’s email to police in sex-assault conviction

Judge wrong to use woman's email in sex case

TORONTO — A judge’s finding that an email a woman sent to police helped prove she had been sexually assaulted is enough to quash a conviction against her alleged attacker, Ontario’s top court ruled Friday.

In ordering a new hearing for Bo Zou, the Court of Appeal found the judge was wrong to view the email sent a day after the incident as confirmation of her account at trial.

The case arose when the then-18-year-old woman, who can only be identified as A.Y., went to Zou’s condominium in Toronto for a photo shoot in July 2012.

She alleged that Zou, then 33, who held himself out as a fashion photographer under the name Jay Dreamcollector, attacked her. Despite her protestations, she testified, he took off her clothes and raped her. For his part, Zou testified it was A.Y. who made advances on him, and that she was angry because he rebuffed them.

At trial, A.Y. gave an account of what happened in Zou’s studio. She also testified that, on the morning after the alleged assault, she angrily fired off an anonymous email to police that described in detail what allegedly had happened. The email version of events, the prosecution noted, was consistent with her oral testimony.

In July 2015, Superior Court Justice Robert Goldstein convicted Zou of sexually assaulting the woman and sentenced him to two years less a day. Among other things, Goldstein said Zou’s account made no sense. He also said he found A.Y. to be credible.

“Most importantly, I find A.Y.’s email, sent contemporaneously with the events, to be corroboration of her evidence,” Goldstein said.

Zou appealed, arguing the email could not legally have been used to support A.Y.’s testimony about the assault.

For its part, the prosecution maintained the judge only used the email as circumstantial evidence to support A.Y.’s testimony about her state of mind after the alleged attack.

However, defence lawyer Marie Henein countered that it might have been proper to use the note to show the woman was angry at Zou, but that using its contents to confirm her account of what happened flawed the conviction.

The Appeal Court agreed with Zou, saying the email was not from an independent source that could confirm the truth of A.Y.’s story.

“The trial judge’s use of the word ‘corroboration’ in the context of a prior consistent statement by a witness is troubling,” the Appeal Court said.

“That word, as commonly understood, refers to evidence from a source other than the witness whose evidence is challenged which is capable of confirming the veracity of the evidence of the challenged witness.”

The Appeal Court pointed out that Goldstein referred to the email six times in his reasons for conviction.

 

Colin Perkel, The Canadian Press

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