A judge has declared a mistrial in a sex assault case in Cranbrook Supreme Court.
Justice Anthony Saunders made the ruling on Wednesday morning after a jury adjourned to deliberate a verdict late Tuesday afternoon.
Matthew Allan Buxton had been facing charges for events alleged to have occurred on Oct. 8, 2016, at the accused’s home following a night of drinking at a local bar. A woman, whose identity is protected by a publication ban, told police she had been sexually assaulted, while Buxton claimed the intercourse was consensual.
Justice Saunders declared a mistrial after the jury of seven men and five women played back witness testimony in the jury room without the court officials, including the judge, crown and defence lawyers, being aware of it.
“My apprehension of the risk to Mr. Buxton’s rights in this case is that the jury apparently was addressing, or was turning their mind, to a specific concern and Mr. Buxton has been deprived of his ability to make submissions as to the appropriate means of responding to that concern,” Saunders said.
“It may very well be the case, and I think it is likely the case that faced with the potential burden of having to listen to the entirety of a days worth of testimony from the complainant, the jury may very well have elected to pursue a less intrusive means and counsel certainly would have been able to make submissions as to how best to respond to the jury’s concerns without the risk of the distortion of the body of the evidence having taken place by listening only.”
According to Justice Saunders, the jury wished to review the audio testimony of three witnesses on Tuesday evening, then changed their minds without notifying court officials and began listening to the playback of the testimony of the alleged victim.
Justice Saunders said he was alerted to the request to hear the evidence playback of three witnesses, but not the fact that the jury had changed their minds to listen to the playback of the alleged victim.
Defence counsel Bobby Movassaghi argued Tuesday evening that counsel should have been notified of the jury’s request to review evidence to ensure there was no prejudice to his client, and requested a mistrial, which was initially denied.
Crown counsel attempted to provide a remedy of the situation by suggesting the playback of the audio testimony in open court with the jury present, however, Justice Saunders was not swayed.
“I thank counsel for their submissions,” Justice Saunders said. “It does not address my substantial apprehension that there has been an irreparable breach to Mr. Buxton’s right to participate in an important part of the trial process, and for that reason, a mistrial will be declared.”
Buxton was charged with sexual assault, attempting to choke to overcome resistance and uttering threats to cause death or bodily harm. However, during the course of the trial, Justice Saunders found Buxton not guilty on the attempting to choke to overcome resistance charge due to a legal matter, and instructed the jury to find Buxton either guilty or not guilty on a lesser included charge of common assault.
A new trial will need to be ordered, with the next court appearance scheduled for Nov. 20 in Cranbrook Supreme Court.
The crown’s case consisted of witness testimony from two friends who followed Buxton and the alleged victim from the bar back to his home, Buxton’s roommate, and responding RCMP officers. Buxton did not elect to call any evidence.