R. v. Murphy, 2014 NLCA 12

Date: 201402 26 Docket: 09/92 Citation: R. v. Murphy , 2014 NLCA 12

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: DENNIS MURPHY APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT Coram: Mercer, Harrington and Hoegg JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division 200901T0059 Appeal Heard: February 12, 2014 Judgment Rendered: February 26, 2014 Reasons for Judgment by Harrington J.A. Concurred in by Mercer and Hoegg JJ.A.

Counsel for the Appellant: Self Represented Counsel for the Respondent: Carmel Penney Harrington J.A.: [ 1 ] The appellant was convicted by a jury of sexual assault and related offences against an 18 year old woman on June 29, 2009 and was sentenced to six and a half years imprisonment. He was represented at trial by two Legal Aid lawyers, one of whom is a senior and experienced criminal trial lawyer.

The Legal Aid Commission declined to provide counsel for an appeal against conviction but provided counsel for a sentence appeal. [ 2 ] The appeal was set for hearing on February 12, 2014 following long delays by the appellant in perfecting his appeal in the absence of any counsel. The appellant failed to file a factum as directed by the Court. He sought a postponement to continue efforts to gather further evidence which he so far failed to do even after the completion of his sentence on September 14, 2011.

Approximately 14 months after his release he was convicted of another offence and remains incarcerated outside the Province. [ 3 ] For the reasons which follow, the appellant’s request for a postponement of the appeal hearing was denied and in the absence of any merit respecting his oral submissions to the Court regarding his appeal, this Court orders that the appeal be dismissed. BACKGROUND [ 4 ] The appellant was charged on September 24, 2008 regarding an alleged sexual assault on a female complainant.

He was also charged with failing to comply with a probation order by failing to keep the peace and be of good behavior. [ 5 ] At trial, the complainant testified that the appellant had violently forced sexual intercourse on her in the front seat of his vehicle and further that she had been punched and choked, and portions of her clothing, including her underwear, had been forcibly removed. The appellant testified and admitted that he had torn off the complainant’s underwear but contended that the sexual intercourse was consensual.

On June 28, 2009, the appellant was found guilty of all charges by the jury. [ 6 ] On September 28, 2009 the appellant filed a notice of application for leave to appeal against conviction. The grounds of appeal were stated to be: - wasn’t given a fair trial, - [the] police kept evidence, - [the police] paid [a] witness to testify against me, - lawyers never represented me to the best of their abilities, - evidence was withheld. [ 7 ] The appellant sought an order from this Court for the provision of legal counsel to be paid for by the Attorney General with regard to the conviction appeal.

The application was dismissed by the Chief Justice on June 2, 2010 (see 2010 NLCA 38 ). [ 8 ] The appellant also made a second

section 684 Criminal Code application to the Newfoundland and Labrador Court of Appeal seeking state-funded counsel. This application was heard, Rowe J.A. wrote the judgment ( 2013 NLCA 39 ) and the application was dismissed. [ 9 ] On September 10, 2013, the respondent applied to the Court to have the conviction appeal dismissed on the basis that the appellant had not perfected the appeal. The Court denied that application, however, the Court fixed the date of December 2, 2013 for the appellant to file his factum and December 16, 2013 for the response to be filed.

In addition, a hearing date for the appeal was set for January 9, 2014. [ 10 ] By letter dated January 29, 2014, the appellant advised the Court that he had “no means in contacting my new witnesses” for the purpose of conducting his appeal. He advised that he was incarcerated in Dorchester Penitentiary regarding an offense which occurred after his release on September 14, 2011. [ 11 ] The appellant claims that he has sought assistance from the John Howard Society but has been hampered in contacting new witnesses who would provide fresh evidence in support of his conviction appeal.

The Deputy Registrar wrote to the appellant on January 30, 2014 at the direction of the Chief Justice to the following effect: (

i) the appeal would be heard on February 12, 2014, the appellant was entitled to be present and prison authorities should be advised of his wish to appear; (ii) the appeal hearing would proceed unless the parties agreed to a postponement or the Court granted a postponement upon hearing the parties; (iii) with respect to fresh evidence, the general rule is that the appeal is heard based on the original trial record and further it is an exceptional case where new evidence will be permitted;

(iv) new evidence will not be heard unless an application is made in advance of the scheduled hearing; (

v) no active application exists seeking to adduce fresh evidence. [12] At the outset of the appeal hearing, the appellant sought a postponement due to his inability to contact proposed new witnessesand to obtain legal representation. He suggested that he had not seen the letter from the Registrar dated January 30, 2014. DorchesterPenitentiary confirmed delivery to him on January 31, 2014. He again complained about the competency of trial counselnotwithstanding having had two lawyers, one of whom has considerable criminal trial experience.

ANALYSIS [13] The trial evidence demonstrates that a fundamental issue which the jury had to decide was the credibility of the complainantand the appellant. The Supreme Court of Canada discussed the proper test to be applied by a court of appeal in assessing whether a juryverdict was unreasonable in R. v.

W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, on appeal from a decision of this Court setting aside a juryfinding of sexual assault. [14] While reversing the decision of this Court setting aside the jury verdict, Justice Cromwell wrote for a unanimous court: [2] Of course, a jury’s guilty verdict based on the jury’s assessment of witness credibility is not immune from appellate review forreasonableness. However, the reviewing court must treat the verdict with great deference.

The court must ask itself whether the jury’sverdict is supportable on any reasonable view of the evidence and whether proper judicial fact-finding applied to the evidence precludesthe conclusion reached by the jury. Here, the Court of Appeal did not follow this approach. It asked itself instead whether anexperienced trial judge could give adequate reasons to explain the finding of guilt and, having answered that question in the negative,found the verdict unreasonable.

In my respectful view, the Court of Appeal applied the wrong legal test and reached the wrongconclusion. [Emphasis in original.] [15] In affirming the narrow scope of appellate review for “unreasonableness” of a jury verdict based on credibility of witnesses,Justice Cromwell elaborated: [31] This point was underlined in R. v. C. (R.), (SCC), [1993] 2 S.C.R. 226, also a judge-alone case, in which theCourt approved the dissenting reasons of Rothman J.A. in the Court of Appeal: (1992), 49 Q.A.C. 37.

Rothman J.A. noted, at para. 16: Credibility is, of course, a question of fact and it cannot be determined by fixed rules. Ultimately, it is a matter that must be left to thecommon sense of the trier of fact . . . . [32] This counsel of caution applies with particular force to verdicts reached by juries. In R. v.

François, (SCC),[1994] 2 S.C.R. 827, McLachlin J. (as she then was) reiterated that the general rule enunciated in Yebes “also applies to cases where theobjection to the conviction is based on credibility – where it is suggested that testimony which the jury must have believed to render itsverdict is so incredible that a verdict founded upon it must be unreasonable”: pp. 835-36. There are a number of points in François thatare particularly relevant to this case: 1. It is for the jury to decide, notwithstanding difficulties with a witness’s evidence, how much, if any, of the testimony it accepts.

AsMcLachlin J. put it, at p. 836: More problematic is a challenge to credibility based on the witness’s alleged lack of truthfulness and sincerity, the problem posed in thisappeal. The reasoning here is that the witness may not have been telling the truth for a variety of reasons, whether because ofinconsistencies in the witness’s stories at different times, because certain facts may have been suggested to her, or because she may havehad reason to concoct her accusations. In the end, the jury must decide whether, despite such factors, it believes the witness’s story, inwhole or in part. 2.

Credibility assessment does not depend solely on objective considerations such as inconsistencies or motives for concoction. AsMcLachlin J. said in François, at pp. 836-37: [Credibility] turns not only upon such factors as the assessment of the significance of any alleged inconsistencies or motives forconcoction, which may be susceptible of reasoned review by a court of appeal, but on the demeanour of the witness and the commonsense of the jury, which cannot be assessed by the court of appeal.

The latter domain is the “advantage” possessed by the trier of fact, beit judge or jury, which the court of appeal does not possess and which the court of appeal must bear in mind in deciding whether theverdict is unreasonable: R. v. W. (R.), supra. [Emphasis added.] 3. The jury is entitled to decide how much weight to give to factors such as inconsistency and motive to concoct.

Particularly where thecomplainant offers an explanation for inconsistencies, the jury may reasonably conclude that those inconsistencies lose “their power toraise a reasonable doubt with respect to the accused’s guilt”: François, at p. 839. Again in François, at p. 837, the Court said this: In considering the reasonableness of the jury’s verdict, the court of appeal must also keep in mind the fact that the jury may reasonablyand lawfully deal with inconsistencies and motive to concoct, in a variety of ways. The jury may reject the witness’s evidence in itsentirety.

Or the jury may accept the witness’s explanations for the apparent inconsistencies and the witness’s denial that her testimonywas provoked by improper pressures or from improper motives. Finally, the jury may accept some of the witness’s evidence whilerejecting other parts of it; juries are routinely charged that they may accept all of the evidence, some of the evidence, or none of theevidence of each witness. It follows that we cannot infer from the mere presence of contradictory details or motives to concoct that thejury’s verdict is unreasonable.

A verdict of guilty based on such evidence may very well be both reasonable and lawful. [Emphasisadded.] 4. To sum up, the reviewing court must be deferential to the collective good judgment and common sense of the jury. As stated inFrançois, “the court of appeal reviewing for unreasonableness must keep in mind . . . that the jury may bring to the difficult business of

determining where the truth lies special qualities which appellate courts may not share”: p. 837. [ 16 ] The appellant has contended for a considerable period of time that there is a witness who can provide evidence that would undermine the complainant’s credibility. However he failed to make direct contact with that witness during the fourteen month period when he was released from custody before reoffending nor did he make contact by telephone or correspondence during his incarceration.

Even if the appellant had contacted a witness who could provide evidence, the lapse of time and the failure to identify and bring forward the witness would pose a significant obstacle to a successful application to adduce fresh evidence at a new trial. [ 17 ] The following factors weigh against the appellant’s request for a postponement and in favor of the Crown’s request for a dismissal of the appeal: (

i) there is no substance to the suggestion that there is fresh evidence that could in any way affect the conviction in favor of the appellant; (ii) credibility was a key factor in the jury’s guilty verdict and there is no basis before the Court for a finding of unreasonable verdict; (iii) there is no substance to the allegations of errors committed by trial counsel; (iv) there is nothing in the reasons of this Court for the reduction in sentence on the sentence appeal that would have any impact on the appellant’s conviction appeal, as the appellant argued; (

v) blame for delay on the conviction appeal rests solely with the appellant particularly given that a period of at least one year elapsed between two periods of incarceration; and (vi) the Court had previously provided additional time to the appellant to perfect his appeal. [ 18 ] With respect to the merits of the appeal, this Court has before it the trial transcript and the grounds of appeal without elaboration by the appellant by means of a factum or other written submission. Having reviewed the trial transcript the Court is satisfied that the grounds of appeal have no merit.

DISPOSITION [ 19 ] Accordingly, the request for a postponement of the hearing of the appeal was rejected and the appeal is dismissed. _________________________ M. F. Harrington J.A. I concur: _________________________ K. J. Mercer J.A. I concur: _________________________ L. R. Hoegg J.A.