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Update: Defence for David Case seeks mistrial over judge’s statement

Sentencing delayed for former track coach convicted of sexual assault
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David Case will be seeking a mistrial based on what his defence lawyer called inaccurate testimony from the woman who accused him of sexual assault. (Supplied)

David Case will be seeking a mistrial based on what his defence lawyer called inaccurate testimony from the woman who accused him of sexual assault.

Case was convicted of sexual assault, assault causing bodily harm and assault concerning a female athlete in the mid-1980s to early 1990s, who he eventually married in secret when she turned 18 years of age.

The woman said she waited 30 years because she said she was afraid no one would believe her.

Sentencing submissions took place Dec. 15. The Crown is seeking a five-year prison term, while the defence is asking for probation. 

In court on Monday morning, his lawyer, Nicholas Xynnis, said he will be submitting an application for mistrial based “erroneous misapprehension of evidence” given at trial.

Specifically, Xynnis referred to the judge’s statement during the trial that he was impressed by what he called “spontaneous disclosure” from the victim that she had once held a knife to Case's throat.

Xynnis said that evidence came to light during a preliminary hearing, and the judge based his guilty verdict on an "erroneous misapprehension of the evidence," and there was “clearly inaccurate evidence” given by the complainant.

Today, Superior Court Justice Alex Kurke was ready to deliver a sentence for Case, with Xynnis seeking probation and the Crown seeking a five-year prison sentence.

Crown attorney Stephanie Baker said she had received notice of the motion only moments before Case’s sentencing was to get underway Monday morning.

“I’m very shocked by the lateness of this application,” Baker said. She said Xynnis has not articulated a basis for a mistrial. She asked Kurke not to allow an adjournment and an application for a mistrial.

Kurke said he had no notice at all of the pending motion. He said there are a “host of issues” that need to be addressed. 

“At this point in time, unfortunately, and regrettably, I see no alternative but to adjourn the matter,” Kurke said. “I had prepared a sentencing decision that I’m not happy about not being able to deliver, but in fairness of proceeding, I will adjourn to allow the application for mistrial to come properly before the court.”


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Arron Pickard

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