Trevis Smith – the professional Canadian football player found guilty on two counts of HIV exposure and imprisoned for five and a half years – has lost his appeal.
This is news all over Canada, but the most detailed report comes from the local paper in Regina, the Leader-Post.
Saskatchewan court dismisses former Roughrider Smith's appeal
by Karen Brownlee, with files from Jana G. Pruden
Thursday, May 15, 2008
REGINA -- The Saskatchewan Court of Appeal dismissed former Saskatchewan Roughrider Trevis Smith's appeal of his conviction on two counts of aggravated sexual assault.
Smith was convicted in February 2007 of having unprotected sex with two women without disclosing to them that he is HIV-positive. He filed an appeal within weeks of his conviction.
Smith's lawyer, Clemente Monterosso of Montreal, argued in the Saskatchewan Court of Appeal in late April that his client had been denied at least two rights during his trial -- the right to be presumed innocent and the right to remain silent.
However, Saskatchewan Court of Appeal Justices Gary Lane, Georgina Jackson and Darla Hunter said in their decision released on Wednesday morning that it was appropriate that the trial judge found Smith guilty.
"We are unable to see any basis for interfering with the trial judge's conclusion," wrote Lane.
The decision also said it was "open to the trial judge to disbelieve Smith and to find the defence evidence did not raise a reasonable doubt."
The three concurred they were satisfied that no error was made when the trial judge, Provincial Court Judge Kenn Bellerose, believed the two complainants and convicted Smith based on their evidence.
Smith's testimony during his trial differed greatly from the complainants.
Smith testified that he had not had sex with one of the complainants after learning of his HIV status. Bellerose didn't believe him.
In Smith's appeal, it was argued that the judge needed to listen to Smith and consider his testimony as part of the total evidence presented. Jackson, Lane and Hunter said in their decision that Bellerose had considered all the evidence and concluded that he didn't believe Smith. The evidence supports that conclusion, they state.
As for the second complainant, Smith said he had protected sex with her, while she said protection wasn't used.
Again in Smith's appeal, it was argued that Bellerose held Smith's testimony to a different standard than that of the complainant. This in part violated Smith's right to silence, it was argued, since Bellerose relied on evidence from a public health nurse and the police to assess Smith's credibility.
Jackson, Lane and Hunter said again that Bellerose reviewed all the evidence in deciding Smith's credibility on this point. Bellerose also explained extensively why he believed the complainant, the three state.
Monterosso has said that Smith is willing to take the case to the Supreme Court of Canada.
Smith is serving a six-year sentence at the Prince Albert Penitentiary. He is more than a year into his sentence and will be eligible for parole in February. He can apply for day parole this fall.