Local man ordered back to jail

Supreme Court of Canada overturns N.L. Court of Appeal decision

Rosie Mullaley rmullaley@thetelegram.com
Published on February 17, 2012
Thomas Molloy. File photo

Canada’s highest court has ordered a child molester from this province back to jail.

The decision in the case of Thomas Leonard Molloy came down Tuesday in Ottawa.

It means Molloy must immediately begin serving the rest of his federal prison term.

The 51-year-old was found guilty in November 2010 of six

sexual offences — two counts each of sexual assault, touching for a sexual purpose and invitation to touching for a sexual purpose — following a trial at Newfoundland Supreme Court in St. John’s.

The sexual assaults occurred in the late 1990s in two different communities.

The complainant — who was between eight and 10 years old at the time and can’t be identified — was forced to perform oral sex and was molested by Molloy. In one incident, he attempted to perform anal sex on the child.

In February 2011, Justice James Adams sentenced Molloy to a three-year prison term. With six months given for pre-trial custody, it left 2 1/2 years on his term.

Less than a month later, Molloy appealed both the conviction and sentence. He was released on bail, pending appeal.

The appeal was heard March 7, 2011, and was argued by special prosecutions senior Crown Steve Dawson and Molloy’s lawyer at the time, Bob Buckingham.

A month later, the three-person Court of Appeal panel voted two-to-one to overturn the conviction and sentence.

A new trial was ordered.

At issue was the admissability of similar fact evidence at the trial — evidence introduced to demonstrate that Molloy had previously engaged in similar behaviour.

Some years before, he had been convicted of sexually assaulting another eight-year-old girl. In both incidents, the complainants were sexually assaulted while in close proximity to other people.

However, the N.L. Court of Appeal ruled that the previous incident was not similar enough to the more recent case.

“It could not be said that the accused had shown observed pattern of propensity with repeated conduct in a particular and highly specific situation,” Justice Malcolm Rowe wrote in the panel’s decision at that time.

“There was only one prior occurrence involving the accused.

“While there were similarities between what the accused did to the other girl and what he was alleged to have done to the complainant (in this case), it was not so distinctive as to constitute it a ‘calling card,’ ‘signature’ or ‘hallmark.’”

Rowe and Justice Gale Welsh agreed to overturn Adams’ decision, but there was one judge on the three-member panel who didn’t, Justice Lois Hoegg.

“I cannot agree with my colleagues that the trial judge erroneously admitted the similar fact evidence in this case,” she stated at the time.

“In my view, the trial judge correctly stated and applied the law. … There is no error in his approach or analysis. His decision to admit the similar fact evidence is deserving of deference and should stand.”

That was the basis of Dawson’s argument when he presented the case in front of the seven-member panel at the Supreme Court of Canada on Tuesday.

Defence lawyer Derek Hogan argued the case on behalf of Molloy.

The decision came almost immediately and was unanimous.

“We agree with (Justice) Hoegg dissenting at the (N.L.) Court of Appeal, that the trial judge committed no reviewable error. Therefore, the appeal is allowed,” said Madame Justice Marie Deschamps, who headed the panel.

As well, the panel agreed to drop one of the sexual assault charges, since it was considered redundant with the other charges.

But that didn’t change the sentence.

“We always thought Justice Hoegg had been correct which is why we felt so strongly bringing  it on appeal,” Dawson told The Telegram Thursday.

“It’s demonstrating a common theme in the Supreme Court of Canada and that is that trial judge’s decision should be given a great deal of deference,” he said.

“If it’s a decision that involves a balancing of factors, a weighing of factors, the trial judge is in a better position than an appeal panel, since the trial judge was there to hear all the evidence.

“So, if there’s no error in law, if he correctly interpreted the law, which he did, it shouldn’t be disturbed.”

It’s rare for cases from this province to be brought to the Supreme Court of Canada.

The last case was argued by recently appointed provincial court Judge Pam Goulding who, in March 2003 as senior Crown, argued the  murder case of Derrick Allen in Ottawa.

The decision on Molloy was a huge success for Dawson — particularly since it was his first time  appearing before the country’s highest court.

“It was very exciting,” he said.

“It certainly was a great experience for me.”

rgillingham@thetelegram.com

Twitter: @TelyCourt