2011 NBCA 67, 2011 NBCA 67

COURT OF APPEAL OF NEW BRUNSWICK 102-10-CA STEPHEN PETER LAKAS APPELLANT STEPHEN PETER LAKAS APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Lakas v. R., 2011 NBCA 67 Lakas c.

R., 2011 NBCA 67 CORAM: The Honourable Justice Deschênes The Honourable Justice Richard The Honourable Justice Green CORAM : L’honorable juge Deschênes L’honorable juge Richard L’honorable juge Green Appeal from a decision of the Provincial Court : May 11, 2010 Appel d’une décision de la Cour provinciale : Le 11 mai 2010 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: June 15, 2011 Appel entendu : Le 15 juin 2011 Judgment rendered: June 15, 2011 Jugement rendu : Le 15 juin 2011

Counsel at hearing: For the appellant: James J. Matheson For the respondent: Cameron H. Gunn Avocats à l’audience : Pour l’appelant : James J. Matheson Pour l’intimée : Cameron H. Gunn THE COURT The motion to adduce further evidence is allowed, the appeal is allowed, the conviction is set aside and a new trial is ordered. LA COUR Accueille la motion en vue de présenter des éléments de preuve additionnels, accueille l’appel, annule la déclaration de culpabilité et ordonne la tenue d’un nouveau procès.

The following is the judgment delivered by THE COURT (Orally) [1] On May 11, 2010, at the conclusion of a trial in the Provincial Court, Stephen Peter Lakas was convicted of sexual assault. The trial had pitted his testimony against that of a single witness: the complainant. The trial judge had not believed Mr. Lakas and, although noting some discrepancies between the complainant’s initial statement to the police and her testimony at trial, generally believed the complainant.

In making this credibility finding, the judge stated she found one particular aspect “the most troubling.” This aspect related to a telephone call the complainant had made to Mr. Lakas the day following the incident. Notwithstanding this, the trial judge applied the governing principles and held the prosecution had proven guilt beyond a reasonable doubt. [2] Mr. Lakas appeals the conviction on a single ground of appeal. He alleges his trial lawyer (not counsel on appeal) did not provide him with an effective defence.

Specifically, he maintains his trial counsel did not obtain available telephone records that would have effectively challenged certain important aspects of the complainant’s testimony. These records have been tendered as further evidence on appeal. The records reveal that, if they had been obtained before trial, effective use of them “might have seriously jeopardized the credibility of the complainant” (to borrow the very candid assessment in the Attorney General’s

written submission). [3] The Attorney General not only consents to the admission of the further evidence but also concedes the appeal. We agree that the interests of justice dictate that the further evidence be admitted, and the appeal be allowed. [4] Mr. Lakas and the Attorney General part ways on the question of the appropriate remedy. Mr. Lakas wants an acquittal, but the Attorney General says the proper disposition of the appeal is an order for a new trial. We agree with the Attorney General. On the issue of the proper disposition, this case is indistinguishable from R. v.

Gardiner , 2010 NBCA 46 , 362 N.B.R. (2d) 179 , where the Court stated as follows: Since credibility was at the heart of the case, it cannot be said that the verdict would necessarily have been the same. Where, as here, the reliability of the verdict is affected, the trial was unfair and a "miscarriage of justice" has thus occurred. In this sense, "miscarriage of justice" means a conviction pursuant to an unfair trial, and not necessarily a wrongful conviction.

It is for that reason that the disposition in this case cannot be an acquittal; a new trial must be ordered. [para. 32] [5] For these reasons, the further evidence is admitted, the appeal is allowed, the conviction is set aside and a new trial is ordered. ____________________________________ ALEXANDRE DESCHÊNES, J.A. ____________________________________ J.C. MARC RICHARD, J.A. ______________________________________ BRADLEY V. GREEN, J.A.