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EVIDENCE - Witnesses - Credibility

Thursday, October 01, 2020 @ 6:12 AM  

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Appeal by the accused from conviction for sexual assault. The issue at trial was whether the activity was consensual. The appellant and complainant left a nightclub after drinking and took a taxi to the complainant’s residence. The appellant alleged consensual sexual activity took place in the taxi. The complainant denied this. The complainant claimed she allowed the appellant to sleep at her residence so that he would not have to walk home in poor weather. The complainant claimed the appellant forced her to have intercourse with him. The appellant alleged all sexual activity was consensual. The judge acknowledged there were parts of the appellant’s testimony that she could not dismiss because they were consistent with evidence provided by the complainant and other witnesses but found there were other aspects of the appellant’s testimony that were both internally and externally inconsistent. The judge also acknowledged there were difficulties with the complainant’s evidence. There were inconsistencies between her testimony and prior statements she made about the events. However, the judge found that the defence was only able to impeach the complainant on peripheral details and her evidence with respect to the core allegation of sexual assault was generally consistent and was supported by other Crown evidence. The appellant argued that the judge committed reversible error in her assessment of credibility and that his cross-examination was improper and undermined the fairness of his trial.

HELD: Appeal allowed. New trial ordered. The judge erred in law by taking an unbalanced approach to the assessment of credibility which resulted in an unfair trial. The credibility assessment as between the appellant and the complainant was rendered uneven because the trial judge adversely assessed the appellant’s evidence using speculative reasoning, her credibility assessment relied upon the fruits of improper cross‑examination, and the judge failed to appreciate significant inconsistencies and contradictions involving the complainant’s evidence and to resolve them before accepting the complainant’s evidence as proving non‑consent. The reasons for conviction revealed a speculative assumption about the appellant’s ability to sustain prolonged physical effort based on his training as a powerlifter. That assumption played an integral role in disbelieving the appellant’s narrative about sexual interaction during the cab ride. The way the subject of intoxication was explored in the appellant’s cross‑examination was problematic because it was bound up with demands made of him that he explain the evidence provided by others, or that he comment on the veracity of their testimony. The questions posed to the appellant invited him to provide reasons for why the Crown’s witnesses observed the things they described, or why they formed the opinions about his intoxication that they expressed at trial. The Crown’s repeated invitation to provide reasons for the evidence of other witnesses laid the groundwork, in material part, for a finding that the appellant was intentionally trying to distance himself from the descriptions of him as intoxicated. The judge found precisely that, and her finding carried significance in the credibility assessment, tainting the reasoning process. The reasons for conviction reflected a failure to appreciate and resolve several inconsistencies and contradictions involving the complainant’s evidence that carried significance to the overall credibility assessment. The absence of a demonstrated appreciation for, and grappling with, the inconsistencies and contradictions supported the appellant’s submission that in making her credibility findings, the judge applied a more rigorous scrutiny to the defence evidence than to that tendered by the Crown.

R. v. Roth, [2020] B.C.J. No. 1333, British Columbia Court of Appeal, D.C. Harris, L.A. Fenlon and J. DeWitt-Van Oosten JJ.A., August 27, 2020. Digest No. TLD-September282020007