The judge in the trial of former CBC Radio host Jian Ghomeshi has approved the submission of new evidence from a fourth witness Tuesday, in an attempt to weigh her police statement that friend Lucy DeCoutrere contacted her after an alleged choking incident in 2003 against the defence’s claims DeCoutere fabricated allegations.
The new evidence will be heard in court on Wednesday, after which the defence said it is ready to close its case Thursday.
“I think the safest course is to hear the evidence and then I can determine what, if any, probative value it may have,” Justice William B. Horkins ruled in court Tuesday.
Crown lawyer Michael Callaghan argued in favour of the admissibility of another witness, who is a friend of the second complainant and Trailer Park Boys actress Lucy DeCoutere and not one of the complainants bringing forth allegations against Ghomeshi.
The Crown said the intention of calling its next witness would be to “rebut” the allegations of “fabrication” that were put forth against DeCoutere by the defence in cross-examination last week.
Callaghan said it was “very clear” there was an allegation of “fabrication” in DeCoutere’s testimony, in addition to one of “collusion” with at least one other complainant in the trial that they intended to rebut.
That allegation came after the court heard Monday that two of Ghomeshi’s accusers discussed their allegations of sexual assault against the former broadcaster in thousands of messages they exchanged before and after they went to police.
A woman who testified that Ghomeshi bit her shoulder and put his hands around her neck as they were making out in a Toronto park, initially said that while she was friends with another complainant, they never discussed the specifics of the allegations.
But during cross-examination, Ghomeshi’s lawyer Marie Henein said the woman, who cannot be identified due to a publication ban, exchanged 5,000 messages with DeCoutere, who testified Ghomeshi choked her and repeatedly slapped her.
The woman also said she initially didn’t tell police that she’d had a sexual encounter with Ghomeshi after the alleged assault because she was embarrassed, and acknowledged she was deliberately misleading.
The Crown intends to utilize the next witness’ police statement and correspondence with DeCoutere as a way to “corroborate” the alleged victim’s testimony, specifically in regard to the allegation that Ghomeshi choked her, adding that DeCoutere had confided in her after the alleged incident.
They also hope the witness can rebut allegations that DeCoutere had only come forward with allegations against Ghomeshi in attempt to gain more Twitter followers, “attention” and “notoriety.”
In response, Ghomeshi’s lawyer Danielle Robitaille said the defence team wasn’t suggesting DeCoutere had made up the allegations against him for Twitter followers, but added that she did “lie” about the course of events.
She said the defence had confronted DeCoutere with “very powerful” evidence that her allegations against Ghomeshi were “false,” adding that the alleged victim was like an “icon for sexual abuse” but did not adequately respond to correspondence she had sent to Ghomeshi the day after the alleged incident when she said she wanted to “f–k your brains out. Tonight.”
Robitaille said the defence intended to focus on showing DeCoutere’s “dishonesty” in her testimony, not exactly fabrication. She added they believe DeCoutere “made it up wholesale,” noting they don’t know when she began to lie about her allegations against Ghomeshi.
Robitaille added that the Crown’s witness does nothing to refute the “bald allegation of fabrication” from DeCoutere’s testimony and they made an effort in cross-examination to show Horkins the inconsistencies in DeCoutere’s writing to Ghomeshi and her account of alleged events.
She raised numerous legal cases from the Ontario Court of Appeal and said the defence’s biggest issue with the proposed witness was the “timing” of the statement she gave, adding that she thought she received a phone call from DeCoutere in 2004 about the alleged choking incident with Ghomeshi – which allegedly happened in 2003.
Robitaille said the proposed witness’ statement “lacks the hallmarks of independence,” which could be interpreted as further alleging collusion between the complainants, adding that she had erroneously reported to police she thought the phone call from DeCoutere occurred “about 10 years ago.”
She also pointed to a Facebook conversation between DeCoutere and the proposed witness, that defence counsel says in which DeCoutere told her police wanted to “corroborate” her story and that the witness’ statement it would make her look like she is “not a copycat.”
The defence said that statement would not help Horkins in “grappling” with the alleged inconsistencies in DeCoutere’s testimony and police statement, adding that the defence would be ready to close its case on Wednesday.
Horkins said that unlike a jury trial, a judge would not be “confused” by the testimony of another witness, adding that perhaps he should hear from her before deciding how to weigh her testimony. He later decided that the court would hear her police statement and correspondence with DeCoutere.
He also said that the fact the defence put to DeCoutere during her testimony that “it never happened” meant that hearing evidence from a witness who spoke to the complainant after the alleged attack could add important context to her testimony.
Callaghan said the new witness’ testimony “may affect your analysis of the credibility of the witness,” after DeCoutere’s credibility was targeted by the defence in cross-examination.
“It’s admissible for the fact that she made a complaint to someone else,” Callaghan said.
Forty-eight-year-old Ghomeshi has pleaded not guilty to four counts of sexual assault, and one count of overcome resistance by choking. He acknowledged in 2014 that he engaged in rough sex acts, but said it was consensual. He has pleaded not guilty to all charges.
Ghomeshi will face a second trial in June on a separate charge of sexual assault, which arose from an alleged incident in January 2008 while he was the host of Q.
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