Focus On

Evidence - Witnesses - Examination

Thursday, January 19, 2017 @ 7:00 PM  

Appeal by the accused from his convictions of sexual assault and sexual interference. The accused was found guilty by a jury of sexually assaulting his daughter. From the time the complainant was five until she was 15, the accused touched her in various ways and in various places on her body in a sexual manner. The touching happened frequently and consistently. At trial, the complainant was granted permission to testify from behind a screen. Over the objection of defence counsel, the screen was placed in front of the accused. The accused was convicted of sexual assault and two counts of sexual interference. The convictions on the two counts of sexual interference were stayed and the accused was sentenced to three years’ incarceration for sexual assault and various ancillary orders were imposed. The accused appealed his conviction arguing that the judge erred in placing the screen before him, in admitting the complainant’s statement into evidence, in admitting the complainant’s handwritten note into evidence and in his instructions to the jury.

HELD: Appeal dismissed. There was no reviewable error and no unreasonable exercise of the judge’s discretion in her placing the screen in front of the accused. The words “behind a screen or other device” in s. 486.2 of the Criminal Code should not be read so narrowly as to prohibit a judge from placing the screen in front of the accused. The purpose of the testimonial aid was to hide the accused from the witness’ view. The screen was placed in front of the accused so that jury was not prevented from watching the complainant as she testified. Furthermore, the screen was such that while the complainant could not see the accused, the accused could see the complainant and the jury. The judge did not err in admitting the complainant’s videotaped statement into evidence. While the statement was not made until almost three years after the last incident of touching, the complainant explained why she delayed in disclosing the abuse. It was open to the judge to find that the statement was made within a reasonable time. It did not matter that the complainant was not a child of tender years. The statement was clear and unambiguous and the complainant testified that her memories were fairly clear when she made her statement to the police. The handwritten note was part of the complainant’s statement to the police. The trial judge’s charge to the jury was adequate. He explained the elements of each offence and outlined what the jurors must find beyond a reasonable doubt for the accused to be convicted.