Summary

37021

Nihal Awer v. Her Majesty the Queen

(Alberta) (Criminal) (As of Right)

(Publication ban in case)

Keywords

Criminal law.

Summary

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Criminal law - Sexual assault - Evidence - Expert evidence - Forensic DNA analysis - Whether the trial judge misapprehended the factual matrix presented by the evidence before her - Whether the trial judge mischaracterized the evidence of the defence’s expert witness - Whether the trial judge relied upon anecdotal and unscientific evidence from the Crown’s expert witness - Whether the trial judge relied upon trade journals which had not been admitted for the truth of their contents.

Mr. Awer was convicted of sexual assault by a judge sitting without a jury. The complainant was drugged and sexually assaulted during a party at which six men were present. She identified Mr. Awer as the assailant. He was taken to the police station and agreed to give a penile swab. The penile swab revealed the presence of the complainant’s DNA. The Crown and defence each called one expert witness to interpret the DNA data. Both experts gave opinion evidence regarding what reliable inferences could be drawn about how the complainant’s DNA was transferred to Mr. Awer’s penis. The trial judge preferred the evidence of the Crown’s expert and also found that Mr. Awer was not a credible witness. She concluded that the only reasonable inference to be drawn from the evidence as a whole was that Mr. Awer had non-consensual sexual contact with the complainant. The majority of the Court of Appeal dismissed Mr. Awer’s appeal. Berger J.A., dissenting, would have allowed the appeal and ordered a new trial. He was of the view that the outcome at trial, which was premised largely on the trial judge’s reliance on the expert DNA evidence proffered by the Crown, and the reasons supporting it were flawed.