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EVIDENCE - Methods of proof - Identification

Tuesday, October 27, 2020 @ 9:06 AM  

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Appeal by the accused from convictions for sexual assault causing bodily harm and unlawful confinement. The complainant, then 18, was drinking at a house party. There were several men drinking there. Just after waking up from sleeping on the couch, she was taken forcibly to the basement and sexually assaulted by two men. She was very intoxicated at the time, and the basement was in total darkness. Eventually, B came down and pulled the men off. The complainant’s evidence was that she did not see her assailants during the assault itself. She did not know which man was first and which was second in assaulting her. She testified she got a glimpse of the appellant’s face in the light from the kitchen when she was on the stairs but that it was his voice that confirmed her recognition. There was no forensic evidence identifying the appellant as having had any sexual interaction with the complainant. The complainant testified that B told her who had committed the assault and that she did not know who it was at first. B did not testify at trial. 

HELD: Appeal allowed. New trial ordered. The judge misapprehended critical evidence related to the complainant’s identification of the appellant which played an essential role in the reasoning process. The judge misapprehended the substance of the complainant’s evidence in erroneously finding that the complainant was able to identify the appellant as the second man who assaulted her, the complainant saw the appellant clearly when B pulled the men off her, and the appellant was speaking near the complainant’s face while sexually assaulting her, which would have enabled her to recognize his voice during the assault. The judge’s misapprehension of the complainant’s evidence had the effect of bolstering that evidence and meant that important inconsistencies were not addressed. These misapprehensions were essential to the judge’s conclusion that the appellant was one of the men who sexually assaulted the complainant. The complainant’s evidence identifying the appellant as one of the assailants was thin and internally inconsistent on material points. Her evidence was unclear as to whether she saw who assaulted her, whether she relied on what others told her as to who the assailants were, and whether she caught a glimpse of the appellant when he was at the top of the stairs and made assumptions based on this glimpse and hearing his voice or a voice like his at some point.

R. v. Patrick, [2020] B.C.J. No. 1501, British Columbia Court of Appeal, G. Dickson, J.J.L. Hunter and S.A. Griffin JJ.A., September 23, 2020. Digest No. TLD-October262020004