R. v. Hiscock, 2016 NLCA 74

Wallace Hiscock (appellant) v. Her Majesty the Queen(respondent) (15/31) Indexed As: R. v. Hiscock 2016 NLCA 74 1 C.A.N.L.R. 354 Court of Appeal of Newfoundland and Labrador Welsh, White and Hoegg JJ.A. December 21, 2016 Restriction on Publication:

Section 486.4 of the Criminal Code respecting the non-publication of the identity of a complainant or of awitness and any information from which they might be identified applies to this judgment.

Summary: The appellant, Mr. Hiscock, was convicted of two counts of sexual assault contrary to

section 271 of the Criminal Code against twocomplainants. He appealed both convictions and the sentences. He argued that the trial was unfair because it was conducted by the samejudge that had previously denied him judicial interim release, that the trial judge erred by not permitting the Crown to withdraw a chargeand that the verdict was unreasonable because there was no physical evidence, all of the evidence was circumstantial and thecomplainants could not have been found to be credible given the inconsistencies in their evidence. He also argued that the sentence wasunfit.

Held: Appeal against conviction and sentence dismissed. White J.A. (Welsh and Hoegg JJ.A. concurring): The test for establishing a reasonable apprehension of bias is whether or not areasonable person, properly informed, would conclude that there is a reasonable apprehension of bias. The mere fact that the judge heardanother matter involving the accused is not, in itself, sufficient to establish a reasonable apprehension of bias. The judge convicted Mr. Hiscock of the

section 271 offences and stayed the sexual interference charges in accordance with Kienapple v.R., (SCC), [1975] 1 S.C.R. 729. Crown counsel simply misspoke; she ought to have asked for a stay of the charges. Byacting as she did in staying the sexual interference charges, the Judge took the proper course of action in the circumstances. Provided other admissible evidence establishes the guilt of the accused beyond a reasonable doubt, physical evidence is not required toconvict. Circumstantial evidence may also support a conviction.

In any event, this was not a circumstantial case since there was directevidence from the complainants about the offences. Mr. Hiscock also argued that the evidence of the complainants was so fraught with inconsistencies that no trier-of-fact could reasonablyfind them credible and convict on the basis of their testimony. The trial judge reviewed the inconsistencies in the evidence. She foundthat the inconsistencies were of a minor nature and did not go to the elements of the offences. She stated that when the evidence wasconsidered in its totality, both the complainants were credible.

The record does not reveal any errors by the trial judge. The record does not reveal any error with respect to sentencing. The judge carefully reviewed the circumstances of the offences and theoffender and gave Mr. Hiscock the benefit of the doubt. In particular, Mr. Hiscock received a sentence of three years for the sexualassault on one of the complainants, which is at the lower end of the range established by this Court. Cases cited:

R. v. Churchill, 2016 NLCA 29, 381 Nfld. & P.E.I.R. 1 R. v. Slaney, 2013 NLCA 70, 344 Nfld. & P.E.I.R. 144 Kienapple v. R., (SCC), [1975] 1 S.C.R. 729 R. v. Smith, 2012 NBCA 99, 396 N.B.R. (2d) 367 R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1001 R. v. A.B., 2015 NLCA 19, 365 Nfld. & P.E.I.R. 160 Counsel: Appearing on his own behalf, the appellant; Iain R.W. Hollett, for the respondent. This appeal was heard on October 13, 2016 before Welsh, White and Hoegg JJ.A.

The following judgment was delivered on December 21, 2016 by White J.A. for the Court. ______________________________________________________________ White J.A.: [1] On April 14, 2015 the appellant, Mr. Hiscock, was convicted of two counts of sexual assault contrary to

section 271 of theCriminal Code against two complainants. He appeals both convictions. [2] Mr. Hiscock met the complainants, J.J. and K.P. at the Village Mall in St. John’s. At that time, they were 13 and 14 years oldrespectively. He was 23 years old. He began exchanging text messages with K.P. and, within a few days, convinced both complainantsto go with him to a residence in the Conception Bay North area, where they consumed alcohol and drugs. It was not clear whether theyspent one or two nights at this residence. K.P. appeared to say it was two, while J.J. appeared to say it was one.

In any event, one or twodays later Mr. Hiscock and the girls learned that the police were looking for them and that the residence was about to be searched. Theythen moved to a tent in a remote area in Winterton, Trinity Bay, where the police eventually discovered them. [3] The Information alleged that during the time spent at the Conception Bay North residence and in the tent, Mr. Hiscock sexuallyassaulted both complainants. It was alleged that while at the residence, Mr. Hiscock sexually assaulted K.P. by laying naked on top ofher, holding her hands over her head and moving.

Once the three of them moved into the tent, J.J. alleged that Mr. Hiscock fondled herbreasts, removed her pants and underwear, digitally penetrated her and had sexual intercourse with her. Her testimony was corroboratedby one of the police officers who found Mr. Hiscock and K.P. and J.J. He testified that when he approached the tent he saw Mr. Hiscocklying on top of J.J. Mr. Hiscock did not appear to be dressed and she was not wearing pants or underwear. [4] After trial, at which K.P. and J.J. testified and J.J.’s statement to the police was admitted pursuant to

section 715.1 of theCriminal Code, Mr. Hiscock was found guilty of the offences. He did not testify. He was sentenced to 4 years imprisonment less 468days credit for time spent on remand and ancillary orders. [5] Mr. Hiscock filed a notice of appeal with this Court which appeared to challenge both conviction and sentence. He did notspecify any grounds for the sentence appeal. It is nonetheless considered below, as Mr. Hiscock has been self-represented for most of theappeal process. Consistent with the finest traditions of the Crown, Mr.

Hollett filed a factum which assisted the Court by addressingissues which could be raised in support of Mr. Hiscock’s appeal, and dealing with them in a fair and balanced manner. Conviction Appeal [6] Mr. Hiscock’s grounds of appeal, as outlined in his notice of appeal, may be summarized as follows: 1) The trial was unfair because it was conducted by the same judge that had previously denied Mr.

Hiscock judicial interim release; 2) The trial judge erred by not permitting the Crown to withdraw a charge; 3) The verdict is unreasonable because there was no physical evidence, all of the evidence was circumstantial and the complainantscould not have been found to be credible given the inconsistencies in their evidence. [7] I will address these grounds in turn. No other viable grounds of appeal arise from the record.

The same judge conducting a trial after having denied the accused judicial interim release. [8] Mr. Hiscock argues that it was unfair for the same judge to conduct his trial after having denied him judicial interim release. Iunderstand him to say that this raises a reasonable apprehension of bias on behalf of the judge. [9] The test for establishing a reasonable apprehension of bias was recently discussed in R. v. Churchill, 2016 NLCA 29, 381 Nfld.& P.E.I.R. 1.

The test is whether or not a reasonable person, properly informed, would conclude that there is a reasonable apprehensionof bias (Churchill at paras. 34-35). [10] The mere fact that the judge heard another matter involving the accused is not, in itself, sufficient to establish a reasonableapprehension of bias (R. v. Slaney, 2013 NLCA 70, 344 Nfld. & P.E.I.R. 144 at para. 7). The test for obtaining judicial interim release isdifferent from the test for establishing guilt beyond a reasonable doubt. Nothing in the record indicates that the Judge did not retain anopen mind with respect to the charges against Mr.

Hiscock even though she conducted the judicial interim release hearing and deniedhim bail. This ground of appeal is not established. Not permitting the Crown to withdraw a charge [11] The Crown submitted at trial that, if Mr. Hiscock was convicted of the

section 271 offences, two counts of sexual interferencecontrary to

section 151, with which he was also charged, should be withdrawn. The Judge convicted Mr. Hiscock of the

section 271offences and stayed the sexual interference charges in accordance with Kienapple v. R., (SCC), [1975] 1 S.C.R. 729. Crown counsel simply mispoke; she ought to have asked for a stay of the charges. By acting as she did in staying the sexual interferencecharges, the Judge took the proper course of action in the circumstances. There is therefore no merit to this ground of appeal. Is the verdict unreasonable. [12] Mr. Hiscock has raised several arguments in support of his main ground of appeal, which is that the verdict was unreasonable andnot supported by the evidence. [13] First, Mr.

Hiscock argued that there was no physical evidence respecting his offences and that all of the evidence wascircumstantial. These arguments do not mean that the verdict was unreasonable. Provided other admissible evidence establishes theguilt of the accused beyond a reasonable doubt, physical evidence is not required to convict (see R. v. Smith, 2012 NBCA 99, 396 N.B.R.(2d) 367 at para. 9). Circumstantial evidence may also support conviction provided it meets the test set out in R. v. Villaroman, 2016SCC 33, [2016] 1 S.C.R. 1001.

In any event, this was not a circumstantial case since there was direct evidence from the complainantsabout the offences, and there was corroboration from Constable Russell. [14] Mr. Hiscock also argued that the evidence of the complainants was so fraught with inconsistencies that no trier-of-fact couldreasonably find them credible and convict on the basis of their testimony. Some of these inconsistencies are summarized at paragraph 54of the Crown’s factum: 54. Defence counsel at trial highlighted a number of inconsistencies which the trial judge summarized: - Each complainant said she left St.

John’s with the Appellant because the other wanted to go; - K.P. testified she saw no drugs, nor consumed any, while she was at the … residence.

J.J. testified they all consumed marijuana; J.J.also testified that she snorted Ritalin and took pain killers; - J.J. said that the Appellant sexually assaulted her once and that was in the tent; K.P. testified that the Appellant had sexual contact withJ.J. at the … residence; - J.J. testified that the Appellant digitally penetrated her and they had sexual intercourse; counsel argued that it was an inconsistencybecause she did not recall which happened first; and - Each complainant agreed to have the sexual assault kit completed at the hospital but then declined to have it completed.

J.J. testifiedthat the sexual assault kit was completed. [15] Further, Mr. Hiscock says the complainants were not consistent concerning the days on which the events occurred. [16] The trial judge reviewed the inconsistencies in the evidence. She found that the inconsistencies were of a minor nature and didnot go to the elements of the offences. She stated that when the evidence was considered in its totality, both the complainants werecredible. [17] Credibility findings are within the purview of the trial judge. There is no palpable and overriding error in the trial judge’sdecision on credibility.

J.J.’s testimony was corroborated by that of one of the police officers, Constable Russell, who testified that hesaw Mr. Hiscock on top of J.J. when the police discovered them in the tent. Constable Russell was found to be a credible witness and hisevidence offers strong independent corroboration of J.J.’s evidence. Taken together, their evidence is more than sufficient to support aconviction for the assault on J.J. [18] As for K.P., the trial judge found that the surrounding events, namely the manner in which the accused met the complainants,convinced them to leave St.

John’s, took them to a place where drugs and alcohol were provided to them and hid with them in a tentwhen he learned the police were looking for them, supported her evidence. Reading the decision as a whole, it is clear that the Judgewas satisfied that the circumstances supported an inference that Mr. Hiscock was behaving in a predatory manner by targeting thevulnerable complainants, isolating them and supplying them with drugs and alcohol in order to take advantage of them for his own

sexual gratification. There is no error in this finding. [ 19 ] The record does not reveal any errors by the trial judge. I would dismiss the appeal from conviction. Sentence Appeal [ 20 ] As mentioned, Mr. Hiscock did not raise any specific grounds for the sentence appeal and did not appear to strenuously pursue it. The record does not reveal any error by the sentencing judge. She carefully reviewed the circumstances of the offences and the offender and gave Mr. Hiscock the benefit of the doubt. In particular, Mr.

Hiscock received a sentence of three years for the sexual assault on J.J. which is at the lower end of the range established by this Court ( R. v. A.B. , 2015 NLCA 19 , 365 Nfld. & P.E.I.R. 160 at para. 26 ) . He received a sentence of one year to be served consecutively for the assault on K.P., because the judge took the most favourable view of the facts available and concluded that intercourse was not established beyond a reasonable doubt. There is no basis for this Court to interfere with the judge’s discretion. I would dismiss the appeal from sentence.

Conclusion [ 21 ] I have not found any errors which justify the Court’s intervention. I would dismiss the appeal. Appeal dismissed.