Focus On

Criminal Law - APPEALS - Grounds - Misapprehension of or failure to consider evidence

Thursday, December 01, 2016 @ 7:00 PM  

Appeal by the accused, Huot, from a conviction for sexual assault. The complainant was four years of age at the time of the offence and seven years of age at the time of trial. She testified from a separate room via video link and was not asked to identify the accused. The complainant testified that the accused pulled down her pants and touched her private parts with his tongue. The accused testified and denied any sexual touching. He acknowledged that he babysat the accused and tickled her on one or two occasions. The trial judge disbelieved the accused and characterized his evidence as self-serving. The trial judge entered a conviction. The accused appealed.

HELD: Appeal allowed. The Crown’s cross-examination misconstrued the questions asked on direct examination to improperly raise credibility issues with the accused’s testimony. Thereafter, the Crown inaccurately recapped the accused’s testimony. The accused in both direct and cross-examination made it clear that he understood the difference between alleged sexual impropriety with a child, which he denied, and playful tickling, which he acknowledged unprompted. The trial judge erred in characterizing the accused’s evidence as a bald assertion he had never touched the child, subsequently qualified by an admission of tickling. In fact, there was no bald assertion or inconsistency in the accused’s evidence. The trial judge misapprehended the accused’s testimony and imposed an evidentiary burden inconsistent with the presumption of innocence. A new trial was ordered.