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Court of Appeal sets asides Gurdev Dhillon’s 2005 convictions but refuses to acquit him

IN February 2013, Surrey RCMP Chief Superintendent Bill Fordy apologized after special prosecutor Peter Wilson concluded that there was “a miscarriage of justice” in the case of Gurdev Singh Dhillon who was convicted of sexual assault in October 2005 for an offence that was said to have occurred on July 7, 2004.

Wilson approved a charge of sexual assault against Mohammed Zaaid Ukhttar and Sital Singh Bhatti in the case.

Dhillon’s lawyer Paul Briggs told the media at the time that the DNA of two different people was found on the victim’s underwear and neither sample matched Dhillon’s DNA, according to what the special prosecutor told him.

Dhillon, who had a good job in Canada, was deported after serving two thirds of his four-year sentence. His wife left him and finally divorced him.

Ina statement the Criminal Justice Branch said: “The case against Mr. Dhillon included an in court identification of him as one of the perpetrators of the sexual assault, and other evidence of his presence at the scene.  Based on the evidence before the Court, the trial judge was satisfied beyond a reasonable doubt that Mr. Dhillon was one of two men who were alleged to have sexually assaulted the complainant.  Following his conviction, Mr. Dhillon was sentenced to four years in prison.  Subsequent appeals to the Court of Appeal from both conviction and sentence were dismissed in 2006.”

The CJB added: “In 2011, as a result of ongoing investigation by police into the identity of the second alleged perpetrator of the sexual assault, Crown Counsel learned of the existence of material evidence that had not been disclosed to the Crown either at the time of Mr. Dhillon’s trial or his appeal from conviction. Because this material was not in the possession of Crown Counsel, it was never disclosed to Mr. Dhillon or his counsel at any point.”

Briggs told me at the time that Dhillon had got in touch with him and he was “trying to move forward to help him.”

 

IN a ruling released last week, the B.C. Court of Appeal refused to acquit Dhillon and instead set aside his convictions.

The summary of the ruling states: “The Supreme Court of Canada remanded the appellant’s application for leave to appeal to this Court to consider fresh evidence and whether the convictions constitute a miscarriage of justice.  The Crown concedes the fresh evidence should be admitted and the convictions set aside.  The remaining issues concern the appropriate remedy and whether costs should be ordered against the Crown.”

The summary adds: “While the fresh evidence demonstrates the convictions constitute a miscarriage of justice, an acquittal is not the appropriate remedy.  The fresh evidence is not sufficiently cogent to exclude the reasonable possibility of a conviction.  In other words, an acquittal would not be the only reasonable verdict on retrial.

“The normal remedy would thus be a new trial. However, this is a clear case that justifies entering a judicial stay of proceedings, pursuant to s. 686(8) of the Criminal Code, to prevent an abuse of process.  In particular, due to the Crown’s non-disclosure, the appellant suffered irreparable prejudice at his original trial. This prejudice would be perpetuated if a new trial were ordered.

“Further, the appellant has already served his full sentence and it would therefore not be in the interests of justice to order a new trial.  Costs should not be ordered against the Crown.  The Crown’s failure to disclose the reports did not, in the circumstances, constitute a marked and unacceptable departure from the reasonable standards expected of the Crown.”

 

BRIGGS told the Vancouver Sun last week that Dhillon, who has remarried in Punjab and has a young son, can now take steps to return to Canada. He still has to go to Federal Court to have his 2006 deportation order set aside as no longer valid.

 

Full ruling:

http://www.courts.gov.bc.ca/jdb-txt/CA/14/04/2014BCCA0480.htm

 

– BY RATTAN MALL

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