R. v. Ferwerda, 2018 NLCA 22

Pieter Ferwerda (appellant) v. Her Majesty the Queen (respondent) (17/103) Indexed As: R. v. Ferwerda 2018 NLCA 22 2 C.A.N.L.R. 670 Court of Appeal of Newfoundland and Labrador Welsh, Harrington and Hoegg JJ.A. April 25, 2018

Summary: Pieter Ferwerda appealed his conviction for one count of assault causing bodily harm contrary to

section 267 (

b) of the Criminal Code . Mr. Ferwerda argued that the trial judge erred by failing to consider photographs of the complainant’s hand, and by failing to give sufficient reasons to resolve what Mr. Ferwerda describes as a conflict between the complainant’s evidence and the photographs, as well as Mr. Ferwerda’s evidence. Held: Appeal dismissed. Welsh J.A. (Harrington and Hoegg JJ.A. concurring): The photographs were not such as to require specific comment by the judge. Indeed, insofar as they could be of assistance, the photographs supported the evidence of the complainant. In convicting Mr.

Ferwerda, the trial judge gave reasons for accepting the testimony of the complainant and rejecting that of Mr. Ferwerda. In his oral decision, the judge reviewed the testimony of both Mr. Ferwerda and the complainant. He was clearly aware of the many points of disagreement. The judge concluded that the complainant’s evidence was plainly clear and sincere, but he did not believe, and did not accept, Mr. Ferwerda’s evidence. Neither his evidence, nor the totality of the evidence, including that of the Crown, raised a reasonable doubt with respect to Mr. Ferwerda’s guilt.

There was no basis on which to find the judge erred. The appeal was dismissed. Counsel: Derek Hogan, for the appellant; Sheldon B. Steeves, for the respondent. This appeal was heard on April 25, 2018 before Welsh, Harrington and Hoegg JJ.A. and the decision was rendered orally on that date. The following Memorandum of Dispostiion was filed on April 25, 2018 by Welsh J.A. for the Court. ______________________________________________________________ Welsh J.A.: [ 1 ] The trial judge convicted Pieter Ferwerda of one count of assault causing bodily harm, an indictable offence, contrary to

section 267 (

b) of the Criminal Code . Mr. Ferwerda appeals on the basis that the trial judge erred by failing to consider photographs of a site of injury, the complainant’s hand, and by failing to give sufficient reasons to resolve what Mr. Ferwerda describes as a conflict between the complainant’s evidence and the photographs, as well as Mr. Ferwerda’s evidence. At the oral hearing, the appeal was dismissed.

[ 2 ] Having viewed the photographs, the Court was satisfied that they were not such as to require specific comment by the judge. Indeed, insofar as they may be of assistance, the photographs support the evidence of the complainant since it is clear from the photographs that the complainant’s hand was injured. [ 3 ] In convicting Mr. Ferwerda, the trial judge gave reasons for accepting the testimony of the complainant and rejecting that of Mr. Ferwerda. In his oral decision, the judge reviewed the testimony of both Mr. Ferwerda and the complainant. He was clearly aware of the many points of disagreement.

He had evidence, including a medical report, that the complainant had attended at a hospital in Labrador where a physician placed a cast on her hand, though, without X-rays, he was unable to ascertain with certainty that there was a fracture. In addition to the injury to her hand, the complainant referred to her neck and back injury, for which she received medical treatment, which, she testified, was the result of Mr. Ferwerda choking her. [ 4 ] Mr.

Ferwerda’s submission that the complainant exaggerated the extent of the injury to her hand, and that this was material and could have affected the outcome was not accepted by the Court on appeal. On cross-examination the complainant had provided an explanation of her earlier testimony. The trial judge did not find the complainant’s evidence to be problematic. [ 5 ] Rather, the judge concluded that the complainant’s evidence was “plainly clear and sincere”. He found that she had a good memory of the incident, and that she was “honest and wanted to tell the truth”.

He stated that her “evidence was not contrary to common sense and could not be considered to be far-fetched and unbelievable”. Further, the judge stated that at no time did he get the impression that the complainant “was fabricating the event or acting out of revenge”. He was satisfied that there were no inconsistencies in her testimony in a “material matter pertaining to the charge”. [ 6 ] By contrast, the judge did not believe Mr. Ferwerda’s account of the events which, he stated, lacked credibility. For example, the judge found that Mr.

Ferwerda’s failure to inquire as to the purpose of the cast and the reason for the complainant’s injuries defied logic and common sense. The medical report from the hospital in Labrador referred to evidence of trauma to the complainant’s right hand which was placed in a cast. [ 7 ] In

summary, the judge concluded that he did not believe, and did not accept, Mr. Ferwerda’s evidence, and that neither his evidence, nor the totality of the evidence, including that of the Crown, raised a reasonable doubt with respect to Mr. Ferwerda’s guilt. [ 8 ] In the result, Mr. Ferwerda’s appeal, based on his reliance on the photographs, exaggeration as to the injury to the complainant’s hand, and his submission that the trial judge failed to provide sufficient reasons to resolve inconsistencies between Mr. Ferwerda’s evidence and that of the complainant, was dismissed. Appeal dismissed .