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EVIDENCE - Admissibility - Prejudicial evidence - Probative value - Expert evidence - Prior consistent statements

Monday, August 09, 2021 @ 9:12 AM  


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Appeal by the accused from conviction of sexually assaulting his niece between 1985-1988, when she was between 7 and 10. The complainant testified about three incidents in which the appellant sexually touched her. The appellant allegedly admitted the offences to the complainant and her family. The appellant testified that when he admitted to touching the complainant, he believed she was referring to her sitting on his midsection and bouncing her bum on his body. As to his later admissions to other family members, he testified to his submissive personality and desire to avoid conflict, which was why he never explained at the time that he thought what was being discussed was the complainant’s bouncing. The appellant argued the trial judge erred by failing to charge the jury about the permissible uses of the complainant’s prior consistent statement of sexual abuse, permitting the Crown to tender the evidence of the complainant’s husband relating to his telephone calls to the appellant in which the appellant allegedly made an implicit admission of having sexually assaulted the complainant, and excluding the defence’s proposed expert evidence about the science of false memories.

HELD: Appeal allowed. New trial ordered. There was a significant risk the jury, uninstructed, might have impermissibly used the complainant’s prior consistent statements as confirming the truthfulness of her allegations. The statements contained specific details as to the allegations and were made to numerous people, many of whom testified confirming the statements were made and their content, all of which raised the appearance of there being more substantive evidence than there was. These statements were relied upon by the Crown and specifically referred to by the trial judge in the charge without a limiting instruction. If the jury had been given an adequate limiting instruction, it would have gained a full appreciation of the legal dangers of relying on evidence merely because it had been repeated. None of the husband’s evidence was necessary or sufficiently probative to counter its prejudicial nature. It was impermissible for the Crown to use the phone calls to invite the jury to infer that by the very nature of the appellant’s first equivocal response and then his silence, that the appellant admitted or adopted the inculpatory descriptions of sexual abuse used by the complainant’s husband. The appellant did not make a clear and unequivocal admission that he had sexually assaulted the complainant to her husband. The husband’s testimony about his deteriorating relationship with the complainant because of her sadness, his resulting alcoholism and his name-calling of the appellant was highly prejudicial evidence akin to bad character that should not have been left with the jury, particularly without a proper limiting instruction as to its use. Having failed to exclude this evidence or provide the jury with proper instruction as to its limited use, trial fairness was undermined in such a way as to have a material impact on the appellant’s conviction. The trial judge misinterpreted not only the relevance of the proposed expert evidence, but also its necessity. The trial judge did not address the expert’s function in the context of the trial evidence, nor did he say whether, or how, the jury could or could not form their own conclusion as to reliability of the complainant’s testimony without hearing the substance of the expert’s scientific evidence and without her help, despite the expert’s own testimony that the average layperson would not otherwise understand or accept that false memories were “plausible”, particularly for traumatic events such as childhood sexual abuse. In the context of this trial and this complainant’s testimony as to how these allegations came to light, such evidence would have assisted the jury in its task of evaluating the reliability of the complainant’s evidence. The general suggestion provided to the jury in the trial judge’s charge, to consider false memory as it related to all witnesses, was an insufficient substitute for the expert evidence in this matter and failed to properly and explicitly connect the issue of false memory to the evidence of the complainant.

R. v. S.K.M., [2021] A.J. No. 930, Alberta Court of Appeal, T.W. Wakeling, F.L. Schutz and R. Khullar JJ.A., July 12, 2021. Digest No. TLD-August92021001