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Complainants won’t have to testify at Toronto man’s preliminary inquiry

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Two men who allege they were sexually assaulted over three decades ago won’t have to testify at the preliminary inquiry of the man they have accused of committing the assaults.

Herbert Penney Flynn, 73, a former Corner Brook resident now living in Toronto, is charged with six offences — sexual assault; indecent assault on a male; buggery; gross indecency; administering, or causing to be administered, a noxious thing; and administering, or causing to be administered, a stupefying or overpowering drug.

Five of the charges are in relation to one victim and are alleged to have occurred in 1982 and one charge involves the second male and is alleged to have occurred in 1988.

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There is a publication ban in place that prevents the identification of the alleged victims, who were in their teens at the time and are now in their 50s.

During a hearing in provincial court on Monday the Crown asked to present evidence at the preliminary inquiry through the presentation of witness statements from the complainants. The application contained copies of the audio recorded statements and transcripts of the statements and an affidavit from the investigating officer.

Penney-Flynn opposed the application and requested that if the statements are admitted he should be able to cross-examine the complainants at the preliminary inquiry.

On Wednesday, Judge Wayne Gorman released his written decision granting the Crown’s application and denying Penney-Flynn leave to cross-examine.

Gorman said he decided the statements are admissible because the Crown has established that they are credible and trustworthy.

He said cross-examination is not a right at a preliminary inquiry and to grant the leave to cross-examine the complainants would render his decision on the admissibility of the statements meaningless.

He said the proposed questioning is of a general nature and concluded it has not been shown that it would affect the issue of committal.

Penney-Flynn has already elected to be tried by judge alone in the Supreme Court of Newfoundland and Labrador, should be committed to stand trial.

His preliminary inquiry will take place on Dec. 21.

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