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PROCEDURE - Trial judge's duties - Charge or directions - Evidence of witnesses

Friday, April 20, 2018 @ 8:41 AM  

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Appeal by the accused, Matchett, from a conviction for sexual assault. The complainant, a sex trade worker, testified that she entered the accused's vehicle after agreeing upon a price for oral intercourse. She denied accepting an offer of a higher price for anal intercourse. They drove to a golf course and exited the vehicle. The accused produced a black handgun and pointed it at the complainant's head. The complainant performed oral intercourse, after which the accused stated he would not kill her if she did as she was told. The accused performed vaginal and anal intercourse without a condom. He told the complainant that he would kill her if she told police. The complainant fled the scene to a nearby home where she called 911 and reported she was raped at gunpoint. The complainant acknowledged that her story to police differed in some respects, as she hid the fact that she was a sex trade worker. A medical examination corroborated the acts alleged by the complainant and resulted in extraction of DNA subsequently matched to the accused. The accused testified that he negotiated and paid for the sexual activity that occurred. He contended the complainant threatened to fabricate a sexual assault allegation unless he paid her more money after his condom broke. A jury trial on one count of sexual assault with a weapon resulted in a conviction for the included offence of sexual assault. The accused appealed.

HELD: Appeal dismissed. The trial judge did not err in leaving the included offence of sexual assault with the jury. Having a reasonable doubt as to the presence of the imitation firearm would not, as a matter of necessity, have amounted to a rejection of all of the complainant's evidence with the consequence of an all or nothing verdict. The jury may have been unsure of the complainant's testimony regarding the weapon on the criminal standard of proof, but that did not support the rejection of her other testimony regarding her lack of consent. The trial judge did not err in failing to provide a limiting instruction with respect to prior consistent statements made by the complainant. Although a more complete instruction was preferable, the limiting instructions given adequately conveyed the permissible uses of the complainant's prior consistent statements.

R. v. Matchett, [2018] B.C.J. No. 559, British Columbia Court of Appeal, R.J. Bauman C.J.B.C., M.E. Saunders and E.A. Bennett JJ.A., March 29, 2018. Digest No. TLD-April162008009