A Newfoundland Supreme Court judge has ordered that a new trial be held in the case of Ray Bursey, who had been charged with voyeurism.
In a decision that was made public Friday, Justice Robert Stack agreed with the Crown’s appeal that the provincial court judge who heard the trial last year made an error in fact that resulted in a not-guilty verdict “that was unreasonable and not supported by the evidence.”
Bursey had been arrested and charged as a result of an incident 2 1/2 years ago.
In October 2014, a video camera was found in a television set in the living room of a woman with whom Bursey had been involved romantically. There was no suggestion that any recording was made by the camera, but the transmitted images could be observed “live.”
During his trial last year, Bursey — who was represented by St. John’s lawyer Randy Piercey — said the woman knew about the camera, which had been placed there five months earlier. He said it had been directed downward toward the cat’s bed so he could use his phone to keep an eye on the cat, which had been sick.
The woman testified that she had no idea the camera was there.
It was also discovered that the camera was painted black and its glowing light was taped over so it would not be detected. As well, the cat had died the same month the camera was placed in the television.
The provincial judge who heard the trial was satisfied that the camera was surreptitiously placed in the woman’s living room, a place where she had a reasonable expectation of privacy, “and where she could reasonably be expected to be nude … or to be engaged in explicit sexual activity.”
However, Bursey was acquitted because the judge was not satisfied beyond a reasonable doubt that Bursey actually observed the woman and intimate images of her.
However, during the appeal hearing, Crown prosecutor Jude Hall argued that Bursey admitted he observed the woman via the video camera.
In an interview with police, an officer asked him, “So … basically, you could watch that at any point in time, without her knowing, is that possible?”
Bursey replied, “Yeah, I guess.”
The officer says, “But you’re watching her.”
Bursey replied, “OK, go ahead.”
Hall said by not taking this exchange into consideration, the judge, “missed this critical point in the respondent’s testimony in review of the evidence.”
Stack said, “given the evidence as a whole, the only reasonable inference that can be taken … is that the respondent admitted that he watched the complainant via the video camera.”
He went on to say, “The trial judge was in error, therefore, when she found as a fact that (Bursey) did not admit to observing the complainant via the camera. The verdict insofar as it was based upon that erroneous finding of fact was unreasonable because it is contradicted by the evidence. Consequently, the acquittal must be overturned on this basis.”
There’s no word on whether the Crown will schedule another trial. Meanwhile, Piercey told The Telegram Friday that he has not yet decided whether to take the case to the Newfoundland and Labrador Court of Appeal.