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

Wednesday, May 19, 2021 @ 6:25 AM  


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Appeal by the accused, Barnes, from convictions for breaking and entering with intent, sexual assault, assault, choking to overcome resistance, uttering threats and unlawful confinement. The accused and the complainant ended an intimate relationship and cohabitation one week prior to the incident that led to the charges. The complainant testified that the accused broke into her home, assaulted her, confined her, choked her and threatened her and her two young children. She testified that the accused sexually assaulted her and directed her to the basement where he made her call his phone inviting her to the residence. The accused testified that the complainant invited him over, let him enter through the front door, and that they engaged in consensual sexual activity before he left following an argument. He denied all the allegations forming the basis of the charges. The trial judge found that the testimony from police and caregivers and the physical evidence of the complainant’s injuries and damage to a basement window were consistent with the complainant’s account of the incident. The judge further found that text messages between the couple were inconsistent with the accused’s contention he was invited over. The accused’s testimony was rejected, and the complainant’s testimony was accepted. Based on the totality of the evidence, the trial judge found all charges proven beyond a reasonable doubt. The accused appealed.   

HELD: Appeal dismissed. The trial judge did not err in convicting the accused of breaking and entering with intent. The presence of the accused in the complainant’s residence without consent or lawful justification was sufficient to establish a deemed break and entry under s. 350 of the Code without need for determination of the precise manner of entry. There was no evidence to the contrary to rebut the statutory presumption that the accused broke in with intent to commit an indictable offence. The trial judge did not err in assessing credibility by unevenly scrutinizing the testimony of the complainant and the accused. The judge was alive to the potential inconsistencies in the complainant’s testimony and found that they did not go to the elements of the offences. The judge’s findings on credibility were anchored in the evidence, as illustrated by the record. The verdict was not unreasonable.

R. v. Barnes, [2021] N.J. No. 70, Newfoundland and Labrador Court of Appeal, J.D. Green, L.R. Hoegg and F.P. O'Brien JJ.A., March 18, 2021. Digest No. TLD-May172021006