Following a conviction on one count of sexual assault, the defendant brought an application to re-open the trial and seek a mistrial based on fresh evidence that emerged in the victim's impact statement.
The fresh evidence revealed that the complainant had pre-existing mental health conditions and was taking multiple medications at the time of the alleged assault, information that had not been disclosed during trial.
The defendant's former counsel had relied on a health history form completed by the complainant that failed to disclose these conditions.
The court found that the fresh evidence was material and could have affected the verdict, particularly regarding the complainant's credibility and reliability as a witness.
The court granted the application to re-open and declared a mistrial, finding that the trial judge could not objectively reassess the complainant's credibility without creating an appearance of bias.
