The Court of Criminal Appeal has set aside William Canty’s conviction on one count of sexual assault, ruling that the jury’s verdict was unsafe because it was not clearly told to disregard prejudicial evidence that had no bearing on that charge.
The judgment, delivered by Murray J. on 18 October 2011, gives the court’s reasons for a decision announced on 29 July 2011 to grant leave to appeal and allow the appeal. The court set aside the conviction on count 15. It did not decide that the alleged assault occurred or did not occur.
At trial in October 2010, Canty faced 15 counts concerning two sisters, identified in the judgment as D.C. and C.C. They had babysat his children over a number of years and were his nieces, the court said. The jury was directed to find him not guilty on counts 5 to 14 after C.C. gave no evidence of sexual assault on the occasions those counts concerned. The jury acquitted him on counts 1 and 2, failed to agree on counts 3 and 4, and the prosecution later entered a nolle prosequi on those two counts. On count 15, concerning an alleged assault on C.C. in a sitting room, the jury returned a 10–2 majority guilty verdict. Canty received an 18-month prison sentence.
The appeal court rejected challenges to the trial judge’s decisions to keep the remaining counts together and not discharge the jury. It said there was still a sufficient connection between the allegations involving the sisters, including their family relationship and the babysitting context.
But the court agreed that C.C.’s evidence about earlier bedroom incidents described conduct that was non-criminal, prejudicial and had no probative value on count 15. The trial judge had said it would have no relevance to that count and that the jury would be told so “in no uncertain terms”. The appeal court found the jury was not given a clear and specific direction to put that evidence out of its minds.
The court said that omission raised a real doubt about the safety of the verdict. It allowed the appeal and set aside the conviction. The judgment does not state that the court ordered a retrial or determined the appeal against sentence separately.