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Good reason not to question complainant about allegations: Presser

Canadian Press THE CANADIAN PRESS

TORONTO – Jian Ghomeshi's defence lawyer is grilling ``Trailer Park Boys'' actress Lucy DeCoutere about a series of emails and a raunchy photo she sent to the disgraced broadcaster months after he allegedly choked her.

Under intense cross-examination by Marie Henein, DeCoutere expressed embarrassment about some of the emails as she read over them, including one in which she says she is going to ``beat the crap'' out of the CBC star if he doesn't agree to see her.

The actress says she feels terrible reading that email now, because it sounds as though she was propositioning him – but she says she wasn't.

Henein also showed her a photo the actress sent to Ghomeshi showing her simulating fellatio on a beer bottle.

DeCoutere acknowledged sending the photo, but added that it didn't mean Ghomeshi hadn't assaulted her. She said she thought the photo was funny and so sent it not only to the CBC star, but to other people as well.

In another email, DeCoutere asks Ghomeshi for a chance encounter in a broom closet in advance of seeing him again at the same Banff conference where she'd met him a year earlier in June 2003.

In yet another email, entitled ``brace yourself,'' DeCoutere then tells Ghomeshi that she plans to call him and ask him to ``play'' with her in October 2003, months after he allegedly choked and slapped her repeatedly in his home.

The actress says she was simply inviting him to dine with her when she arrived in Toronto from Halifax for the Gemini Awards.

She denied it was flirtatious, instead describing it as platonic. Of the other emails, she insisted she had no sexual interest in Ghomeshi.

Henein has also accused DeCoutere of withholding pertinent information about her friendship with the disgraced broadcaster until just this week.

``So when you tell police that your paths would cross and you were never comfortable with him ... are you prepared to admit that that is a lie?'' Henein asked

DeCoutere replied: ``I will go out of my way to find a way to not have negative feelings with somebody and so I will spend time with them. I've done that lots of times.''

Henein also reminded DeCoutere that she told police she had no intention in seeing Ghomeshi romantically. During cross-examination, Henein outlined a number of details about their friendship more than a decade ago that she says DeCoutere only told the Crown in recent days, after his sexual assault trial started.

Henein suggested DeCoutere has held back information that indicates she's been dishonest about their subsequent relationship.

DeCoutere pushed back, saying she provided the new information when the opportunity presented itself. She added that some of those details hadn't made a significant impact on her – the way his alleged choking did.

DeCoutere, who has waived her right to a publication ban, is the second complainant to take the stand at Ghomeshi's closely watched trial.

She is one of three women behind five charges against Ghomeshi – four counts of sexual assault and one count of overcoming resistance by choking. He has pleaded not guilty.

DeCoutere acknowledged Thursday that her profile soared after she made public allegations against the former CBC host as Ghomeshi's lawyer repeatedly questioned why she maintained a friendship with him following an alleged attack.

DeCoutere alleges that 48-year-old former CBC Radio host started choking and slapping her in the face without warning while they were kissing.

While she recalled vivid details of the incident when questioned by a Crown prosecutor, Henein accused DeCoutere of omitting key details when talking to the police. Now she says she's revealed new details as recently as Thursday.

Henein asked why DeCoutere hadn't told police about some emails she exchanged with Ghomeshi after she alleges he assaulted her, noting the actress only disclosed them to the Crown on Thursday, after the first complainant to testify at the trial was confronted with her own emails to Ghomeshi sent 18 months after her separate alleged assaults.

``I didn't understand the importance of after-contact incidents,'' DeCoutere explained.

As in her cross-examination of the previous complainant, Henein didn't challenge DeCoutere's allegation that Ghomeshi hit her, but concentrated on other details of the time the two spent together.

In an interview with AdvocateDaily.com, Toronto criminal lawyer Jill Presser says in the opening days of the Ghomeshi trial, Henein has vigorously cross-examined the two complainants who have taken the stand, but in a move that seems to have surprised media commentators, she has not challenged the complainants on the details of the alleged assaults.

“Instead, Henein has focused on other details. She has asked about what the witnesses did and did not tell police, the nature of their relationships with Ghomeshi apart from the incidents, and the complainants' communications with Ghomeshi after the fact,” she tells the online legal newspaper. 

Presser explains there is good reason for defence counsel not to question a complainant about the specific allegation on trial. 

“A complainant is never going to back down on the stand — even under the most skilful cross-examination — and change her core story, let alone admit that her allegation is a lie (even if it is),” she says. “By the time a matter gets to trial in a criminal court, the complainant has too much invested. And all the more so in a case like this where the whole country is watching. The complainant will stand by her story.”

Presser says complainants can, however, often be productively challenged by defence counsel on the details around the allegation. 

“Whereas the complainants and Ghomeshi were the only ones present at the time of the alleged assaults (and he may yet take the stand to deny the allegations), emails from the complainants to the man they say hurt them speak for themselves,” she says. 

“So DeCoutere's emailed invitations to Ghomeshi speak powerfully. They make the reasonable, objective viewer question whether the alleged assaults actually occurred as described, even though Henein did not.”

– With files from AdvocateDaily.com 

© 2016 The Canadian Press

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