Sides haggle over evidence in sleepwatcher case

The Crown’s application for admitting ‘similar fact evidence’ was rejected by Judge Wood in the Barry Sinclair trial.

Sinclair, 50, has been charged with two counts of break and enter and five counts of voyeurism.
The Crown had applied to use evidence from one break and enter count for the other and vice versa.
“Normally in trial, evidence in one charge cannot be used as evidence in the other charge in the indictment unless the crown makes an application to have evidence considered,” explains Crown Attorney Denise Smith. “[This is] known as similar fact evidence.”The break and enters occurred on Shirley Street and South Street on Sept. 15, 2011, half an hour apart.

The Crown argued that the degree of similarity between the two break and enters was high.

The defence

The Crown and the defence argued over the “improbability of coincidence,” the idea that it is improbable that a situation is coincidental, but rather that it has significant links.

Defence lawyer Luke Craggs argued the lack of cases makes the probability of coincidence higher. If there were multiple cases this would be a stronger argument, but because there was only two break and enter counts, the probability of coincidence is high.

Craggs argued that specific similarities the crown brought up were not significant similarities, rather that they were mere coincidental.

The judge agreed with the defence and dismissed the application for similar fact evidence.

“I’m happy with it,” says Craggs. “I wasn’t really worried about the outcome of it either way.”

Craigs says the evidence in the case will speak for itself.

“We have a photo line-up where the complainant picked out a photo that was not Mr. Sinclair, which was presented to her in the photo lineup,” says Craggs. “[And] one complainant could not describe anyone — and described someone who might have blond hair.”

Sinclair and Craggs have been in communication throughout the trial. Craggs says Sinclair is stoic.

“He presents pretty much as he does in the courtroom. He’s listening attentively and is very interested in the outcome,” he says. “He’s keeping his chin up.”Closing arguments will be made on Friday morning.

What would have been similar fact evidence

The Crown argued that there were nine similarities between the two break and enter counts.

  1. Both break-ins occurred on the same day
  2. The break-ins occurred half an hour apart
  3. There was a short geographical distance between the break-ins
  4. Both occurred in ground floor apartments occupied by numerous young women
  5. Both break-ins did not have a forced entry
  6. The perpetrator in both break-ins did not wear gloves
  7. Neither break-in reported anything stolen or disturbed
  8. Both break-ins involved bedroom doors opening, that were shut, in rooms that had sleeping women in them
  9. Both intruders closed the bedroom doors upon detection and left immediately

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