Ontario Criminal


Evidence


Accused was incarcerated at time alleged assault occurred

IDENTITY OF ACCUSED

Accused was charged with sexual assault, touching person under fourteen for sexual purpose, two counts of invitation to sexual touching and unlawful confinement. Complainant was eight years old in 2009 and testified that when she went to garbage chute in her apartment building, she was confined by man who asked to see her underwear, attempted to lift her dress and to pull her dress down, asked her to touch his penis and then masturbated in front of her. Accused had tattoos which were not identified by complainant and was also incarcerated at time alleged assault occurred. Accused was identified by photo lineup where complainant testified accused looked sort of like attacker. Accused was only person in photo lineup with shaved head with complainant placing her hand over other photos to see what they looked like with shaved head. Accused found not guilty. Complainant made every effort to identify accused honestly however photo lineup was flawed. Accused also had tattoos visible that most likely would have been identified and accused was also not in area at time of assault.

R. v. Osborne

(July 23, 2012, Ont. S.C.J., Forestell J., File No. 12-1000107-0000) 102 W.C.B. (2d) 262 (12 pp.).

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