Miscarriage of justice brings stay for convicted rapist who was deported to India | chandigarh | Hindustan Times
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Miscarriage of justice brings stay for convicted rapist who was deported to India

A man who was found guilty nine years ago in the gang rape of a 19-year-old woman with medical problems has had his charges stayed on appeal.

chandigarh Updated: Dec 07, 2014 20:16 IST
Vancouver Desi

A man who was found guilty nine years ago in the gang rape of a 19-year-old woman with medical problems has had his charges stayed on appeal.

In 2005, Gurdev Singh Dhillon was convicted of the 2004 sexual assault and sentenced to four years in prison for the offences, after which he was deported to India.

Following his deportation, previously undisclosed DNA evidence identified two men on exhibits seized from the victim in a basement suite in Surrey. Neither DNA profile matched Dhillon.

The Crown announced that there had been a miscarriage of justice and lawyers for the accused, whose prior appeal had failed, launched a fresh appeal in the case.

The Supreme Court of Canada sent the case back to the B.C. Court of Appeal to determine whether an acquittal, a new trial, or a stay of proceedings would be the appropriate remedy for a miscarriage of justice.

In a ruling released Friday, B.C.’s highest court said that while the fresh evidence demonstrated that the conviction constituted a miscarriage of justice, an acquittal was not the appropriate remedy.

Dhillon had already served his full sentence and therefore it would not be in the interests of justice to order a new trial, the court found.

The non-disclosure of the DNA evidence was a serious breach of Dhillon’s Charter rights and the prejudice was “irreparable,” said B.C. Court of Appeal Justice Anne MacKenzie in her reasons for judgment.

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“In all the circumstances, I conclude that a new trial would constitute an abuse of process, and that a stay of proceedings is the appropriate remedy.”

The victim, who cannot be identified due to a publication ban, testified that she was driven to the basement suite by two males and upon arrival met a third male.

She said she was pushed into a bedroom where two of the three males raped her and that the owner of the suite was one of her attackers.

The victim, who suffered from epilepsy, diabetes and a breathing disorder, identified Dhillon, who was the owner, as one of the men who assaulted her.

Shortly after the attack, Dhillon was found passed out, naked and in a state of extreme intoxication in the suite. He did not testify at trial but made admissions that he lived in the suite and was present on the night of the assault.

On appeal, Dhillon’s lawyer argued that the fresh evidence was not so compelling that it clearly established his innocence but claimed it was an appropriate case for an acquittal.

The Crown argued the appropriate remedy was to quash the conviction and direct a stay of proceedings.

MacKenzie concluded that the fresh evidence was not sufficiently cogent to exclude the reasonable possibility of a conviction.

“The test for an acquittal is strict: the court must be satisfied that no jury acting reasonably could convict on the evidence. I am not satisfied that an acquittal would be the only reasonable possibility.”