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Procedure - Trial judge’s duties - Assessing credibility of witnesses

Thursday, September 08, 2016 @ 8:00 PM  

Appeal by the accused, MK, from a conviction and sentence for multiple sexual offences. The accused, age 54, was in a position of trust in relation to the complainant. The accused engaged in kissing, fondling and partial intercourse with the complainant. The complainant was between 13 and 19 years of age at the time of the accused’s conduct. She testified on behalf of the Crown. The accused testified and denied the allegations. He also adduced evidence from the complainant’s mother and her brother that supported his denial to some extent. The trial judge rejected their evidence as a biased and calculated effort to assist in the accused’s exculpation. The accused was convicted and sentenced to seven years’ imprisonment less 250 days’ credit for time served. The accused appealed both the conviction and sentence.

HELD: Appeal dismissed. The trial judge made explicit reference to the WD test for assessing reasonable doubt at the outset, conclusion, and once during the course of the reasons for conviction. The judge expressly stated that the trial was not a credibility contest. He considered the credibility of each witness, found the complainant worthy of belief, and the defence witnesses unreliable and lacking in credibility. The mere fact that the trial judge reviewed the evidence of the complainant and the defence witnesses consecutively did not establish that he considered the case a credibility contest in view of his express statements to the contrary. The reasons as a whole did not disclose any error in the assessment of the evidence or misapprehension of the evidence. The sentence imposed was fit and within the appropriate range. No error in principle or disproportionate emphasis on any relevant sentencing objective, principle or factor was established. Sentence: Six years, eight months and ten days’ imprisonment.