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EVIDENCE - Witnesses - Credibility - Prior inconsistent statement

Wednesday, December 04, 2019 @ 7:57 AM  

Lexis Advance® Quicklaw®
Appeal by the accused from conviction for sexual assault. The issue at trial was whether the complainant consented to the activity. The complainant described situations in which she did not consent to the activity, sometimes objecting, and at other times passively, but unwillingly, involved in the events. The appellant portrayed the complainant as a willing participant whose consent could be inferred from her conduct. The complainant gave a lengthy statement to the police in an interview that occurred on the afternoon after the events in question. The appellant did not cross-examine the complainant on the statement which the trial judge used to bolster the complainant’s credibility. The statement to police was not, itself, part of the evidence at trial. The appellant disputed the trial judge’s credibility findings. He argued the judge made improper use of the complainant’s statement to the police as a factor to boost her credibility and improperly allowed the appellant to be cross-examined on his sexual history, and then used that history inappropriately to draw inferences that the appellant was not credible.

HELD: Appeal allowed. New trial ordered. The judge ought not to have speculated on the content of a complainant’s statement to police that was not in evidence. By assuming that the contents of a statement that was not in evidence bolstered the credibility of the complainant, the judge was relying on assumptions not founded in evidence. Even if there was evidence establishing that the complainant’s prior statement was consistent with her evidence at trial, it would have been improper to take the consistency into account in assessing credibility. The judge made impermissible use of a prior statement that he presumed was consistent with the complainant’s evidence at trial. The cross-examination on the appellant’s prior sexual history was improper. The evidence was not directed to issues of the appellant’s ability to observe or remember details of events but to paint him as a person who was promiscuous and a sexual opportunist. The evidence of the appellant’s sexual history did not have any clear connection with the issues in the case, nor was it closely connected with any issues of credibility.

R. v. Grant, [2019] B.C.J. No. 2000, British Columbia Court of Appeal, H. Groberman, S. Stromberg-Stein and S.A. Griffin JJ.A., October 11, 2019. Digest No. TLD-December22019007