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APPEALS - Grounds - Unreasonable verdict

Thursday, December 01, 2016 @ 7:00 PM  


Appeal by the accused from his convictions for aggravated assault, sexual assault and unlawful confinement of DL and uttering threats and assault with a weapon of AC. The accused and DL resided and worked together for approximately 18 months. They had started a moving company and eventually hired AC, who ultimately moved in with them. DL claimed that the accused physically abused him throughout the period they resided together. It started with a hit from a boot and then progressed to regular hitting, kicking and pushing. He also alleged that the accused forced him to perform sexual acts on the accused. AC claimed that the accused struck him on multiple occasions, choked him, threatened to kill or hurt him or his family and once held a knife to his throat. On various occasions, DL attended a hospital for treatment of his injuries. Both DL and AC saw the accused abuse the other. Others also saw the abuse and observed the complainants’ injuries. In addition, the accused told others that he abused the two complainants. In his statement to the police, which was admitted into evidence, the accused denied abusing the complainants. At the close of evidence, the accused unsuccessfully applied to stay the proceedings on the grounds of late disclosure. None of the alleged grounds for a stay were established to the satisfaction of the trial judge. She concluded that while there were a few instances of late disclosure, they had been remedied and the accused had not suffered any resulting prejudice. She found that the defence allegations were largely overstated and unfounded and did not establish a breach of Charter rights or an abuse of process or prejudice. The trial judge found that DL had memory problems because of the injuries, including a brain injury he suffered due to the assaults. She had some concerns about the reliability of other testimony given by DL due to his foggy memory, but she accepted that the assaults occurred. With respect to AC, the trial judge found that while he may have exaggerated some collateral aspects of his life at the relevant time, his medical records supported the fact that he was injured during the time he resided with the accused. The accused appealed his convictions, arguing that the verdicts were unreasonable and unsafe.

HELD: Appeal dismissed. DL was entitled to testify about his direct experience, including his cognitive deficiencies after being beaten. It was open to the trial judge to accept that and other testimony as showing that DL had experienced a brain injury and that his memory had been negatively affected as a result. Expert evidence was not required. With respect to the sexual assault, it was not surprising that DL repressed the memory of the degrading acts involved. The judge was not required to assess each piece of evidence, but rather determine whether the totality of the evidence provided proof beyond a reasonable doubt. It would not have been possible for the judge to segregate DL’s evidence of the aggravated assaults from the evidence of the sexual assault. The evidence before the trial judge clearly supported the conclusion that DL did not consent to sexual contact with the accused and that he submitted or did not resist by reason of the application of force or the fear of application of force. The trial judge made no error in finding that each element of sexual assault was made out on the basis of the evidence she accepted. The trial judge’s conclusion that no prejudice resulted from the late disclosure or as a result of failure to disclose material posted on social media, supported her conclusion to dismiss the application for a stay of the charges. Even if the police used improper methods to gather evidence from witnesses, neither DL’s or AC’s evidence was gathered using the impugned method and their evidence, together with medical records, was largely sufficient to establish the charges against the accused.