A new trial has been ordered for a Surrey taxi driver who was found guilty of sexually assaulting a teenage girl four years ago.
Wasim Asghar Malik was convicted in October 2011 and was sentenced to 18 months in jail last spring. The conviction, however, was overturned by the B.C. Court of Appeal this week.
Malik appealed on the grounds that trial Judge Murray Blok failed to address inconsistencies in the alleged victim's testimony and didn't properly consider text messages sent to a friend throughout the night.
An appeal hearing was held in March and the judgement posted online Thursday (June 6).
In her written reasons for judgment, Madam Justice Pamela Kirkpatrick said the evidence in the case was not so overwhelming that only a guilty verdict was possible, and questioned Blok's assessment of the teen's text messages. Appeal court Justices Harvey Groberman and Elizabeth Bennett agreed.
The charge against Malik arose from an incident that took place in April 2009, when he was 47 and working as a cab driver. He picked up a 17-year-old girl, identified as A.B., and her friend at about 3:30 a.m. at a Surrey house.
There is a publication ban on any information that could identify the complainant.
After attending two parties, the two girls wanted a ride to another party in Fort Langley. The court heard that A.B. had consumed two beer and five shots of whisky. The girls had no money, but a friend gave them an address and said he'd pay the cab fare when they arrived.
When they got there, no one was there and the friend could not be reached.
A.B. testified she told the driver she didn't have money but offered her mp3 player and camera as collateral. Malik testified she didn't offer any collateral, but said she would pay him later. He said he just wanted to get back to Surrey and get back on shift.
He dropped off A.B.'s friend in Cloverdale and instead of driving A.B. home, drove to another location where he changed cars. The teen testified it was "kind of weird" but she wasn't alarmed.
Malik then drove to another house. A.B. needed to use the washroom, so followed him inside. She texted her friend because again, she found the situation "a little weird."
She claimed Malik came out of his bedroom wearing a bathrobe and started making sexual advances. She ended up on the floor underneath the man, she said, but managed to squirm away and leave the house.
Malik, however, said the girl said she didn't have a job and would do anything to repay him for the taxi fare, asking 'Do you have a place we can go'?" He claimed she offered to perform oral sex, but then told him she couldn't go through with it and left.
Justice Kirkpatrick said the trial judge rested his final decision mainly on two things: the complainants behaviour and appearance after she left the accused's home and the text messages.
"In order for the text messages to assist the judge in assessing the credibility of the complainant’s and the appellant’s version of events, it would be necessary for them to be more consistent with one version than with the other," said Kirkpatrick in her decision.
She said the text messages were "at least equally" consistent with Malik's version of events as with the teen's recollection of the night.
"I am unable to understand the judge’s conclusion that there would be no reason for the complainant to text her friend if she were going to a complete stranger’s house at 5:00 a.m. to perform sexual services. It seems to me that in such a situation it would be very important to the complainant that someone be aware of where she was and be alert to the possibility of danger.
"In my opinion, the judge erred in holding that the text messages were 'much more consistent with A.B.’s version of events'," Kirkpatrick said.