Judge to decide admissibility of deceased woman's testimony in N.W.T. man's trial

A Yellowknife judge is deciding whether statements and testimony given by a woman who has diedcan be used in the trial of a man accused of sexually assaulting her.

The man, Peter Tsetta, is charged with two counts of sexual assault and forcible confinement in connection with two separate incidents in 2017, one involving the deceased woman and one involving a woman who testified last month.

The deceased woman passed away Dec. 8, 2018. She gave a videotaped statement to police and was cross-examined at Tsetta's preliminary inquiry. The videotape was played earlier at Tsetta's judge-only trial on the understanding that its admissibility would be decided later.

In the video, the woman said that on May 13, 2017 she and another woman had been drinking downtown and met Tsetta at the liquor store. He invited them to continue drinking at his house in Ndilo. They agreed to join him. The woman said the next thing she remembers is waking up with Tsetta on top of her, raping her. She said he held her down. When she tried to scream he put his hand over her mouth.

Both prosecutor and defence agreed that the courts have established that when complainants are not available to testify their previous statements can be used as evidence at trial only if they are substantially reliable.

"The key issue is the lack of opportunity to cross-examine the complainant," said Tsetta's lawyer, Evan McIntyre. "The standard is high."

Similarities between alleged assaults

He argued the woman's testimony did not meet the test. He said she admitted she had been drinking the day of the alleged assault and had no memory of what happened leading up to it "sexual assault is not the only logical conclusion," said McIntyre.

McIntyre noted that a security person at a boarding home where the woman went after the alleged attack told police the woman "had definitely" been drinking. In court on Tuesday the man testified he may have mistaken a diabetic episode for intoxication and did not smell any alcohol on the woman.

McIntyre pointed out that, after resisting police efforts to get a statement from her for months, she finally gave one after her niece told her she had been sexually assaulted by Tsetta.

"If [the complainant]was here, we could ask, 'What did you say to your niece? What did you make of that press release?" said McIntyre.

The woman finally spoke to police shortly after they issued a press release saying Tsetta had been charged with sexually assaulting two other women in March and June. The charge related to the alleged March attack has since been withdrawn.

Prosecutor Annie Piche said the woman's initial reluctance to speak to police was an indication she did not make up the allegation out of malice toward Tsetta.

Piche said there were remarkable similarities between the alleged assault on the other woman Tsetta is accused of assaulting and the deceased woman, similarities that corroborate the deceased woman's story.

Both allegedly happened at Tsetta's home after chance meetings in downtown Yellowknife. Both women said they passed out and awoke to being sexually assaulted by Tsetta. Both said he persisted despite their protests.

Piche said if the statements and testimony the woman gave before her death are not permitted to be used as evidence, the charges related to that alleged attack will be stayed.

The judge is scheduled to give her decision on Monday.