Credibility of victim questioned by man appealing sex assault conviction

An Island man who was convicted last month of sexual assault has filed an appeal, saying he didn't receive a fair trial.

A lawyer for Joseph Michael MacGillvray, 22, filed papers Wednesday in P.E.I.'s Court of Appeal.

Following a one-day trial in November, Judge Nancy Orr sentenced MacGillvray to two years less a day in provincial jail.

The appeal claims the judge erred in law. Those alleged errors include allowing text messages to be entered as evidence, and "failing to properly apply credibility tests."

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"The trial judge erred in law in that she found there was no evidence of mistaken consent or honest belief in consent ..." according to the papers filed by Charlottetown lawyer Ian Bailey. The appeal also claims that the judge erred "in her assessment of the credibility of the complainant and the reliability of her evidence."

MacGillvray's victim, who was 16 years old at the time of the offence in July 2016, testified by video link at trial in October. Court heard she was at a party in Stratford and had been drinking. She asked for a place to rest and was directed to a dark room. It turned out to be MacGillvray's bedroom, which was where the sexual assault took place.

Appeal claims judge 'erred'

MacGillvray and the girl had never met before and did not know each other, according to testimony at trial, but after the incident they exchanged text messages. Some of those messages, entered as evidence at trial, included an apology from MacGillvray to the girl for what he'd done.

According to a pre-sentence report,MacGillvraytold justice officialshe believes the victim lied on the stand and portrayed him unfairly.

MacGillvray pleaded not guilty and testified in his own defence at trial. The appeal argues the judge erred in her assessment of the credibility of MacGillvray and the reliability of his evidence.

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