The evidence of a sexual assault expert who died before finishing her testimony at a Burnaby murder trial has been thrown out because the defence wasn't able to fully challenge her "reliability, credibility and impartiality" under cross-examination.
Dr. Tracy Pickett, a former director of the BC Women's Hospital sexual assault service, testified at the trial of Ibrahim Ali in September before going missing from her Vancouver home on Sept. 26.
On Sept. 28, Vancouver her body had been found in the Southlands neighbourhood and no foul play was suspected.
Police have released few details about Pickett's death, but the jury at the Ali trial was told Tuesday afternoon it must now disregard all the evidence she gave.
Cross-examination incomplete
"The cross-examination of Dr. Pickett was significantly curtailed by her unexpected death; therefore, to preserve the fairness of the trial, I am instructing you to completely disregard Dr. Pickett’s evidence in its entirety," B.C. Supreme Court Justice Lance Bernard told the jurors.
He described cross-examination as the "cornerstone" of Canada's adversarial justice system.
"The right of an accused to make full answer and defence includes the right to challenge the testimony of Crown witnesses through cross-examination, including challenges to their reliability, credibility and impartiality," he said.
Because Pickett's cross-examination was cut short, Bernard told jurors they must put her evidence out of their minds as if they had never heard it.
"From this point forward, you cannot and must not consider Dr. Pickett's evidence, and it will therefore have no place in your deliberations," he said.
Bernard said the jury was not the first to be instructed to disregard the evidence of a witness and likely wouldn't be the last.
Such instructions are "a well-recognized and accepted practice," he said, and the law accepts jurors can and will follow them.
"I wish to assure you that it is an intellectual exercise that is not as difficult as it might seem at first blush, and I have every confidence that you will be able to abide by my instruction to do so here," Bernard said.
Because he has directed the jury to disregard all of Pickett's evidence, Bernard said the circumstances of her death are "completely irrelevant" to anything the jury will be asked to decide on in the trial.
"To maintain your impartiality and not compromise your solemn duty to decide this case based solely on the evidence presented in the courtroom, you must resist all speculation, inquiry and research into Dr. Pickett's death," Bernard said.
"To do otherwise would risk exposing yourself to information or misinformation that could compromise your duty to decide this case based solely on the evidence presented in the courtroom."
Bernard added it was essential to the fairness of the trial and the jury's impartiality that jurors not blame Ali in "any sense whatsoever" for Dr. Pickett's death.
'Unexpected circumstances'
Pickett first took the stand on Sept. 18, and defence lawyer Ben Lynskey began cross-examining her on Sept. 22.
She was scheduled to begin a third day of cross-examination on Sept. 28 but did not appear.
Benard told the jury "unexpected circumstances" had arisen that precluded the trial continuing that day, and he dismissed them until Oct. 17.
On Oct. 17, and instructed them not to speculate or conduct their own research about it until he had decided how to deal with her testimony.
Ali is on trial for first-degree murder in the death of a 13-year-old girl whose body was found in Burnaby's Central Park on July 19, 2017, less than two hours after her family reported her missing.
Ali has pleaded .
The girl cannot be identified because of a publication ban.
The is that Ali and the girl were strangers to one another and that he attacked her on a trail in Central Park, dragged her into the forest and strangled her to death while sexually assaulting her.
The defence has not outlined its theory but has the killer and whoever had sex with the young teen — "either forced sex or sex" — are not the same people.
The trial, which was expected to last three months, is now in its eighth month.
The Crown has called 40 witnesses, including Pickett, and intends to call two more.
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