Lorna Bolton

The appellant was convicted by a jury of two counts of sexual assault, one count of invitation to sexual touching, and one count of indecent exposure to a person under 16.

On appeal, he argued the trial judge erred in the collusion instruction by failing to direct the jury that the instruction did not apply to him, and by failing to caution the jury that rejection of his family members' evidence on the basis of collusion could not be used to infer that the appellant was less credible or guilty.

The Court of Appeal found that there was no evidentiary basis to include the appellant in the collusion instruction, as he had not been cross-examined about participating in any family discussions of the allegations.

The failure to provide limiting instructions left the jury inadequately instructed on fundamental credibility issues.

The curative proviso was not applied because credibility was the central issue in the trial and the errors were not harmless or trivial.

The appeal was allowed, convictions set aside, and a new trial ordered.

The appellant was convicted of six counts of sexual assault involving six complainants who worked at his adult massage parlour.

The trial judge dismissed the Crown's similar act evidence application but failed to instruct the jury against propensity reasoning and the cross-count application of evidence.

On appeal, the Court of Appeal held that these limiting instructions were mandatory to prevent the jury from improperly using the evidence across counts.

The Court declined to apply the curative proviso, finding that even if the similar act evidence should have been admitted, the lack of proper jury instructions meant there was a reasonable possibility the verdicts would have been different.

The conviction appeal was allowed and a new trial ordered.