R. v. J.C.H., 2011 NLCA 8

Date: 20110111 Docket: 09/111 Citation: R. v. J.C.H. , 2011 NLCA 8

Section 486.4 of the Criminal Code respecting the non-publication of the identify of a complainant or of a witness and any information from which they might be identified applies to this judgment. IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : J.C.H. APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Green, C.J.N.L., Rowe & Harrington, JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division 2009 01T 1312 Appeal Heard: September 17, 2010 Judgment Rendered: January 11, 2011 Reasons for Judgment by Rowe, J.A.

Concurred in by Green, C.J.N.L. and Harrington, J.A. Counsel for the Appellant: Derek Hogan Counsel for the Respondent: Robin Fowler

Rowe, J.A.: [1] This is an appeal from conviction for sexual interference, invitation to sexual touching and sexual assault involving a boy,five to eight years of age when the offences are alleged to have occurred. The accused was the boyfriend of the complainant’s mother. The Trial Decision 2009 NLTD 151 [2] The complainant was 12 years old at the time of trial. He testified that the accused had engaged in sexual touching and analintercourse. The accused testified that no such activities had occurred.

Credibility was the central issue in the trial. [3] T.T., a young cousin of the complainant, testified that on one occasion she briefly saw the accused with a hand inside thecomplainant’s pants.

T.T.’s description of what occurred was different from the description of the complainant. [4] There were a number of inconsistencies in the complainant’s evidence as well as inconsistencies between what he said at trialand his evidence at the preliminary inquiry. [5] At trial, the defence took the position that the complainant was not credible because of significant inconsistencies in hisevidence and between his evidence and that of T.T. and the complainant’s mother, and because he had a motive to fabricate.

The defenceargued that the evidence of the complainant was therefore unreliable, thereby creating a reasonable doubt. [6] The trial judge approached her analysis of the evidence by first addressing whether the accused, not the complainant, wascredible. She concluded that he was not, stating that his evidence “did not have the ring of truth and I do not believe his testimony.” Shegave four specific reasons - and four reasons only, without making any general overall assessment of his evidence - for this conclusion.

Iwill discuss those four reasons in greater detail later in this judgment. [7] Having rejected the accused’s evidence as lacking “the ring of truth”, the trial judge turned to a consideration of the strengthof the complainant’s evidence, noting, in accordance with the admonition in R. v.

W. (D.), (SCC), [1991] 1 S.C.R. 742,that even if she did not believe the accused she still had to consider whether she was left with a reasonable doubt. [8] Although the judge acknowledged that “significant” inconsistencies in a complainant’s evidence must be considered inassessing the reliability of that evidence, she concluded that the inconsistencies in this case were not significant. [9] After considering the allegation that the complainant may have had a motive to fabricate the allegations, as well as theinconsistencies between the complainant’s evidence and that of T.T., the trial judge concluded (at para. 74 of her decision): I do not believe the Accused.

Rather, I accept as true the allegations of [the complainant]. His allegations establish the elements of theoffences. I have considered his allegations and the totality of the evidence. After considering the totality of the evidence relating to thecharges, I am satisfied that the Crown has proven the elements of the offences beyond a reasonable doubt. Issues [10] Several issues were raised in the appeal. It is necessary to address only that relating to the trial judge’s assessment of thecredibility of the accused.

That is sufficient to dispose of the appeal. [11] It is not for the Court of Appeal to second-guess trial judges in their assessment of credibility, based on our reading oftranscripts versus their seeing witnesses testify. However, when a trial judge makes logical inferences from what a witness says andthen relies on those inferences to assess credibility, we may examine whether those inferences are in error. Analysis [12] I start with a general observation: the trial judge’s approach to the analysis and assessment of the evidence was potentiallyproblematic.

She considered first the testimony of the accused and determined whether it was worthy of belief, which she held it was not.Then she considered the evidence of the complainant and the other witnesses in the knowledge that “the decks had already been cleared”,as it were, of the appellant’s contrary evidence. [13] A trial judge should generally first consider the evidence offered by the Crown in support of the charges, especially that of thecomplainant. That sets out the case that the accused has to meet.

Only if there is sufficient strength in that evidence is it necessary toconsider the evidence (if any) led by the accused. That sequence accords with the burden of proof resting with the Crown. The danger inconsidering the evidence of the accused first and determining whether it is worthy of belief before considering the Crown evidence isthat it may induce the judge to place too great an emphasis on the remaining evidence, i.e. the Crown evidence, without carefullyscrutinizing that evidence in the context of the evidence as a whole to determine whether it can support the charges to the standard ofproof required.

In effect, it creates a tendency for the judge to consider the evidence in an “either/or” way, thereby departing from therequired burden of proof. [14] In this case, disposing first of the accused’s evidence as not worthy of acceptance might well have contributed to the judge’swillingness to accept the contrary version advanced by the complainant by downplaying the significance of the inconsistencies in thecomplainant’s evidence and accepting it as meeting the required standard of proof.

By approaching it as she did and eliminating theaccused’s evidence from further consideration, the trial judge, in effect, disabled herself when considering the strength of thecomplainant’s evidence from analyzing it in the context of all of the other evidence in the case, including that of the accused. [15] It is not necessary to deal further with this matter … and I say nothing about the credibility of the complainant’s evidence …because, as indicated, I have concluded that the judge made significant errors in her analysis of the credibility of the appellant, leading to

her discounting of his evidence in a manner that renders the verdict unsafe. [ 16 ] The trial judge set out four specific bases for concluding that she did not believe the appellant’s testimony. [ 17 ] First, she stated that “the explanations offered by Mr. H. [as to why the complainant made his allegations] are neither convincing nor reasonable” (para. 27, decision). [ 18 ] It is settled law that an accused bears no burden to explain why his accuser made the allegations against him.

Yet, the trial judge says, in effect, that being unpersuaded by the possible explanations put forward undermines the credibility of the accused’s testimony. This effectively places a burden on the appellant to come forward with a convincing explanation on pain of being deemed not credible. The burden must at all times remain on the Crown. [ 19 ] Second, the trial judge said (para. 28, decision) that the accused contradicted himself as follows: In direct examination the Accused denied pulling [the complainant’s] pants down.

In cross examination, [the accused] was asked if he had ever played a game with [the complainant] during which he would pull [the complainant’s] pants down. Initially, [the accused] said that he used to ‘tug’ on the Complainant’s pants and that this was different from pulling [the complainant’s] pants down. Then he was asked if it was a common thing for him to pull [the complainant’s] pants down: to which he replied “yes”, this being a clear contradiction of his first response. [ 20 ] With respect, the trial judge’s assessment of the accused’s evidence is clearly incorrect. Here is the relevant passage: Q.

Now, in questions from [Defence counsel] you were asked did you ever pull down [the complainant’s] pants and you indicated to that question “no”. Is it – isn’t it true though that you used to play a game with him where you’d pull down his pants? A. Tug on ‘em but not pull ‘em down no, there’s a difference. Q. Okay, what if I suggest to you that you did play a game where you were pulling down his pants? A. No, tug down his pants. Just a little tug to get his attention right. Not pull his pants down no. Q. But that was a common thing though that you would use his pants as part of a game or pulling on them? A.

When I’m lying on the couch tryin’ to get his attention or whatever yes. (Transcript, Volume III, p. 11.) [ 21 ] Rather than being inconsistent, the accused is being entirely consistent. In the critical passage, the accused maintains the distinction which is an obvious one between tugging on a pant leg to draw a child’s attention and pulling down a child’s pants so as to expose the child’s lower body. The trial judge is simply wrong to say that in this respect the accused contradicted himself.

He did not. [ 22 ] Third, the trial judge stated (at para. 29 of her decision): When the Crown put to the Accused that what the Complainant had alleged was true, [the accused’s] response was that he did not “think” it was true. This cannot be considered a forthright response. [ 23 ] “I deny the allegations in their entirety” might have been more “forthright”; however, the appellant’s meaning was not obscure. There was no evasiveness in his answer. Relying on the use of the word “think” as a basis for disbelieving the accused is attaching meaning that is unwarranted.

This is especially so when immediately after saying the word, the following exchange occurred: Q. Okay. So you think that it might possibly be true- A. No. Q. - that you don’t recall it or something like that? A. No, I know it’s not true . (Emphasis added.) (Transcript, Volume III, p. 13) The trial judge made no reference to this additional exchange. [ 24 ] As well, I would adopt the argument of counsel for the appellant at paragraph 41 of his factum: The appellant did not testify that he did not “think” that what the complainant had alleged was true.

Instead, the question from the Crown was whether what both [T.T.] and [the complainant] had alleged was true. … This question could not be answered by a simple yes or no. The appellant had already acknowledged that part of this was true – he did accidentally pull down T.T.’s pants – and that part may have been true – he may have been tucking in the complainant’s pants during the other incident she and the complainant described. However, neither incident was sexual.

Under these circumstances, his equivocal response is not surprising. [ 25 ] Fourth, the trial judge refers to the testimony of T.T., the complainant’s young cousin, and to the accused’s testimony in response. The trial judge described T.T.’s testimony as follows: Her evidence was that she saw [the accused] with one hand “down” the front of [the complainant’s] pants. [T.T.] described [the accused] as being on his knees with [the complainant] standing in front of [the accused]. (Decision, para. 33)

[ 26 ] The trial judge described the accused’s response as follows: When asked about T.T.’s evidence regarding his hand being down the Complainant’s pants, [the accused] said he had no specific recollection of that event.

He added that he thought she saw him tucking in [the complainant’s] shirt. (Decision, para. 35) [ 27 ] One should note that the accused said two things: first, he didn’t recall the event; and, second, if T.T. is correct in her recollection, then the only explanation the accused could suggest was that he was tucking in the complainant’s shirt. [ 28 ] The trial judge ignores the first part of the accused’s response (no recollection of the event) and focuses on the second part (the possible explanation).

She stated: [The accused’s] suggestion of his tucking in [the complainant’s] shirt is neither a reasonable nor convincing explanation of what T.T. says she saw. It is disingenuous of him to characterize his being on his knees with just one hand “down” the front of the Complainant’s pants as his tucking the Complainant’s t-shirt into his track pants. (Decision, para. 36) [ 29 ] It was, of course, open to the trial judge to say that she believed T.T.’s testimony that the event occurred, and that it did so as T.T. described it.

Similarly, it was open to the trial judge to say that she did not find the accused’s possible explanation to be persuasive. But, how could his testimony regarding these matters give rise to a conclusion that the accused was being “disingenuous”, i.e. lacking in candor or frankness? There is nothing inherently implausible about not recollecting the event, nor in the possible explanation given. While it was open for the trial judge to accept T.T.’s testimony, that goes to the weight of the Crown’s case against the accused and not the assessment of credibility of the accused.

The trial judge made a logical error here. Conclusion and Disposition [ 30 ] Where does this leave things? The trial judge said she did not believe the accused, nor did his testimony give rise to a reasonable doubt. Critical to this was her assessment of his credibility. In her reasons, the trial judge sets out only four specific bases for assessing his credibility. Upon examination, not one of the four survives.

The trial judge’s assessment of the accused’s credibility being thus fatally flawed, the Court can have no confidence that the evidence was properly considered by the trial judge in the context of the evidence as a whole in a manner that would leave the burden of proof on the Crown. Had the judge not discounted the appellant’s evidence for the unacceptable reasons she used, it might have persuaded her to conclude that there was a reasonable doubt as to whether the charges had been proven. Accordingly, the verdict cannot stand. A new trial is ordered. _______________________________ M. H. Rowe, J.A. I concur: J.

D. Green, C.J.N.L. I concur: M. F. Harrington, J.A.