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EVIDENCE - Burden of proof - Photographs and video recordings - Witnesses - Prior consistent statements

Friday, July 02, 2021 @ 5:46 AM  

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Appeal by Greif from his conviction for sexual assault. The appellant booked an appointment for a haircut in the complainant’s home. The complainant testified that during the haircut, the appellant grabbed her thigh and once the haircut was finished, he pinned her to her bed and aggressively fondled her, including digital penetration, while she tried to fight him off. She indicated she scratched the appellant’s back during the incident. She disclosed the assault to her mother before reporting it to the police. Photographs of the complainant’s right buttock and wrist showed bruising. The appellant testified and denied the incident in the bedroom occurred. Photographs of his back did not show any scratches. The trial judge found the appellant’s testimony was not believable and did not raise a reasonable doubt.

HELD: Appeal dismissed. The trial judge did not reverse the burden of proof. His reasons for finding the complainant credible and the appellant not credible did not demonstrate a reversal of the burden of proof. The trial judge did not require the appellant to point to a reason why the complainant was lying. Rather, his reasons explained why the appellant’s evidence and theory of the case did not raise a reasonable doubt. The trial judge did not misapprehend the photographic evidence that conflicted with the complainant’s testimony. He was clearly alive to the inconsistency but found it did not detract from the complainant’s credibility. He did not place weight on the complainant’s post-event behaviour in assessing her credibility. His reasons did not offend the rule against relying on stereotypes or unfounded inferences in assessing the complainant’s credibility. The trial judge did not apply an uneven scrutiny to the evidence of the Crown and the defence and provided sufficient reasons.

R. v. Greif, [2021] B.C.J. No. 994, British Columbia Court of Appeal, A.W. MacKenzie, G. Dickson and P.G. Voith JJ.A., May 10, 2021. Digest No. TLD-June282021007