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APPEALS - Miscarriage of justice - New trial - To receive new evidence

Tuesday, June 18, 2019 @ 10:06 AM  

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Appeal by A.W.H. from his conviction for sexual interference. In 2014, the 4-year-old complainant told her mother, the appellant’s girlfriend, that she did not want the appellant to take her to school because she did not want him to touch her anymore. In a 2015 videotaped statement, the complainant indicated she shared a secret with the appellant but did not say what it was. After several months of counselling, the complainant disclosed to the mother that she had been punched on her vagina. In a second videotaped interview in 2016, the complainant disclosed details of the alleged touching by the appellant. The videotaped statements were admitted at trial. The appellant led fresh evidence that his trial counsel advised him not to testify because of his prior criminal record, which included previous convictions for sexual offences against children. He further alleged counsel failed to secure text messages between himself and the mother about the end of their relationship and the fact he had been considering a small claims action against her. He provided explanations for innocently touching the complainant when he changed her diaper and indicated his secret with her was that he gave her candy that he did not give her siblings.

HELD: Appeal allowed; new trial ordered. There was no reasonable prospect that texts between the appellant and the mother could have impeached the mother’s credibility. The appellant’s trial counsel was mistaken that the appellant’s criminal record would count against him with respect to his guilt or innocence. Counsel’s advice fell below a reasonableness standard and affected both the reliability and fairness of the trial. The appellant’s evidence would have directly addressed some of the trial judge’s reasons for his conviction. It was relevant to decisive issues concerning the complainant’s credibility and reliability and what inferences could reasonably be drawn from her evidence. His evidence was reasonably capable of belief. A miscarriage of justice occurred.

R. v. A.W.H., [2019] N.S.J. No. 217, Nova Scotia Court of Appeal, D.R. Beveridge, J.E. Fichaud and P. Bryson JJ.A., May 23, 2019. Digest No. TLD-June172019004