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EVIDENCE - Methods of proof - Inferences - Judicial notice

Friday, June 28, 2019 @ 6:25 AM  


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Appeal by the accused from convictions for sexual interference, sexual exploitation and sexual assault. The complainant was the appellant’s stepdaughter. The complainant alleged the sexual contact occurred between 2012 and 2015 when she was between 15 and 18. The sexual contact commenced after the complainant told the appellant that she had sexual intercourse with his half-brother in 2011. At trial, the appellant denied any sexual contact with the complainant. The appellant claimed that the complainant made false allegations against him as an act of revenge, because he contacted a male with whom she was communicating over social media when she was 18 years old.

HELD: Appeal dismissed. There was no misapprehension of evidence by the trial judge going to the substance of the charges. The failure to analyze the content of the messages did not indicate a misapprehension of evidence. The judge’s lack of comment on irrelevant testimony was not a misapprehension of evidence. The trial judge made no mistake as to the substance of the evidence or any other readily obvious error. The inferences drawn were not inconsistent with the evidence. The trial judge was attuned to the inconsistencies in the complainant’s evidence and acknowledged the appellant’s argument that inconsistencies were a cause for concern. The trial judge did not address every inconsistency, but his reasons overall illustrated that the core of the allegations were unaffected by the inconsistencies. Some of the inconsistencies related to peripheral matters and did not warrant any comment by the trial judge.  On the entirety of the evidence, the allegations remained intact, despite the inconsistencies. There was no assertion by the appellant that the evidence of bad character was improperly received into evidence. It was clear from his reasons that the trial judge confined his reliance on the unrelated lies by the appellant to the issue of credibility. The trial judge did not shift the burden of proof to the appellant. Part of the overall credibility assessment of the appellant was influenced by acts of dishonesty unrelated to the allegations. These were peripheral matters, but, in the circumstances, it was not an error to consider these earlier acts of dishonesty in the overall credibility assessment. The appellant did not demonstrate that the decision reached by the trial judge was an unreasonable verdict or one not supported by the evidence. The trial judge committed an error of law in taking judicial notice of how or whether telecommunication companies store text messages. The error was not material to the decision and no consequences flowed from it.

R. v. M.L., [2019] N.J. No. 174, Newfoundland and Labrador Court of Appeal, D.E. Fry C.J.N.L., C.W. White and W.H. Goodridge JJ.A., May 23, 2019. Digest No. TLD-June242019014