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EVIDENCE - Witnesses - Credibility - Prior consistent statements

Tuesday, September 26, 2017 @ 8:48 AM  

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Appeal by the accused, Untinen, from convictions for unlawful confinement and two counts of sexual assault. The complainant was a frail woman in her 50s who described a violent sexual assault by the accused following an evening of drinking in March 2014. The complainant sought medical treatment the following day. Two days later, she gave a videotaped statement to police detailing the allegations. In May 2014, the complainant was diagnosed with a progressive form of dementia affecting short-term memory in a distortive manner without any intention to deceive. In September 2015, the statement was admitted into evidence pursuant to s. 715.2 of the Criminal Code. The accused was convicted. On appeal, the accused submitted the complainant was an unreliable witness whose memory was severely compromised by her condition at the time of trial and at the time her statement was recorded. The accused submitted the convictions could not safely be founded in the complainant's evidence. In addition, the accused submitted the trial judge erred in law in concluding the police statement could be used to corroborate the complainant's trial testimony.

HELD: Appeal dismissed. The accused failed to demonstrate any misapprehension of the evidence by the trial judge. Ample evidence supported the conclusion that the complainant’s cognitive function was much higher at the time of her statement than at trial. Although the trial judge misstated the law regarding appropriate use of the statement, the curative proviso was available to sustain the conviction given that the statement was not used for corroborative purposes. The trial judge was entitled to use the statement in response to the defence theory that the complainant's trial testimony was unreliable. The judge permissibly compared the content of the police statement to the complainant’s evidence at trial, and noted that her account of material matters was the same at each point in time. To the extent that prior Court of Appeal judgments in JA and KPS precluded such use of a statement, they no longer constituted good law. The trial judge was entitled to conclude that the consistencies between the statement and trial testimony significantly negated the possibility that the complainant's account of events at trial was confabulated because of her impaired cognitive state.

R. v. Untinen, [2017] B.C.J. No. 1806, British Columbia Court of Appeal, I.T. Donald, P.A. Kirkpatrick, E.A. Bennett, P.M. Willcock and G.J. Fitch JJ.A., September 13, 2017. Digest No. TLD-Sept252017004