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PROCEDURE - Trial judge’s duties - Charge or directions - Defences

Monday, August 24, 2020 @ 9:27 AM  


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Appeal by the Crown from the respondent’s acquittal of sexual assault. The appellant and the complainant were former classmates and friends. After they met at a coffee shop, they went for a drive in the appellant’s car. There was sexual contact in the car. The appellant claimed it was consensual fondling with digital penetration and oral sex, and that it did not include vaginal intercourse. The complainant alleged it was non-consensual digital penetration and non-consensual sexual intercourse. The appellant claimed the parties had previously engaged in consensual kissing and sexual touching numerous times, oral sex at least once, and sexual intercourse at least twice. He alleged an honest belief in communicated consent based on these occasions of prior consensual sexual contact. The Crown argued errors were made by the trial judge in his jury instructions, and in various voir dire decisions allowing or excluding admission of evidence. 

HELD: Appeal allowed. New trial ordered. The trial judge erred by failing to instruct the jury on the legally erroneous notion of implied consent. While the trial judge did not err in putting the defence of honest but mistaken belief in consent to the jury, he erred by failing to limit its application and by failing to give specific instruction on its application. Since the appellant denied that there was sexual intercourse, the trial judge was obliged to instruct the jury that the defence of mistaken belief had no possible application with respect to sexual intercourse. The trial judge also erred in failing to instruct the jury that the defence of honest but mistaken belief in communicated consent was not available where an accused did not take reasonable steps to ascertain that the complainant was consenting and in failing to instruct the jury on the type of evidence that could and could not constitute reasonable steps. The trial judge was obliged to caution the jury against acting on the mistake of law that prior similar sexual activities between the appellant and the complainant could be substituted for communicated consent. The trial judge erred by excluding evidence of observations of an abrasion and dried blood in the complainant’s vaginal area made by the emergency room nurse. The error was, however, minor in the context of this case because the emergency room physician was permitted to testify, and he gave evidence of his observations. The effect was that the jury heard the same evidence from the doctor that was proposed to come from the nurse. Under the circumstances, the error had no impact on the jury verdict. The trial judge’s errors were significant and directly affected the main issues for decision by the jury. The cumulative effect of these errors was such that a reasonable jury properly charged could well have reached a different verdict.

R. v. Kennedy, [2020] N.J. No. 146, Newfoundland and Labrador Court of Appeal, J.D. Green, L.R. Hoegg and W.H. Goodridge JJ.A., July 17, 2020. Digest No. TLD-August242020002