A new trial has been ordered for a man who was convicted of sexual assault following a trial in Surrey provincial court.
The Court of Appeal for British Columbia on Monday set aside James Osinde’s conviction and ordered a new trial after finding there had been a miscarriage of justice.
Justice David Frankel noted that credibility was a “critical issue” at the trial.
A publication ban remains on any evidence that could identify the complainant, referred to in Frankel’s March 29 reasons for judgment only by the letter X.
She testified she woke up in Osinde’s Surrey apartment, where a group of friends went after having drinks at a bar in downtown Vancouver on Sept. 5, 2015, to him “having sexual intercourse” with her without her consent.
Osinde denied this happened.
Osinde’s lawyer argued the trial judge erred by failing to consider inconsistencies in X’s evidence, by “unevenly” evaluating his client’s evidence and that of X, and by misapprehending evidence related to a confrontation between Osinde and a friend of X’s that formed part of the judge’s finding that Osinde lacked credibility.
Frankel noted that while a trial judge is “uniquely positioned to make credibility assessments, where those assessments are based on misapprehensions of evidence and played a critical role in reaching a conviction, the assessments and the verdict will be insupportable.
“I would allow this appeal, set aside the conviction, and order a new trial,” Frankel said.
Justices Mary Saunders and Joyce DeWitt-Van Oosten agreed with his decision.