R. v. R.J.H., 2012 NLCA 44

Date: 20120712 Docket: 12/09 Citation: R. v. R.J.H. , 2012 NLCA 44

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 : R.J.H. APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Welsh, Rowe and White JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador, Trial Division (General Division), Happy Valley-Goose Bay, 201008T0022 Appeal Heard: June 13, 2012 Judgment Rendered: July 12, 2012 Reasons for Judgment by Rowe J.A. Concurred in by Welsh and White JJ.A. Counsel for the Appellant: Self Represented

Counsel for the Respondent: Sheldon Steeves Rowe J.A.: INTRODUCTION [1] R.J.H. was convicted of sexual assault and sexual interference against an 11 year old girl (A.D.) and a 13 year old girl (K.M.). He appeals those convictions. As part of his appeal, he seeks production of new evidence, being records of school attendance by K.M.;as well, he seeks to enter as new evidence “chat” logs from his computer. (In a separate hearing, R.J.H. is appealing his sentence.) FACTS [2] In 2009, the appellant was 32 years old. K.M. was 13. A.D. was 11. R.J.H. knew K.M. from her birth.

A.D. was a friend ofK.M. and came to know R.J.H. via K.M. R.J.H. communicated with K.M. and A.D. via a “chat” computer application. [3] K.M. testified that in his truck R.J.H. asked her to have sex with him. She testified that she told him no, but he pulled down herpants and panties, and (to quote the trial judge) “tried to put his penis in her vagina, but was not successful”. He drove her home. Shetestified that she was scared. She reported the incident to police a month later.

R.J.H. acknowledged that K.M. had been in the truckwith him, but denied the sexual assault. [4] A.D. testified that in his truck R.J.H. had (in the trial judge’s words) “picked her up and put her on his lap while he was askingher to have sex … He asked her more than once. She kept saying “no”. He did not touch her other than her legs.” While this washappening, K.M. was driving the truck; her evidence supported A.D.’s testimony. R.J.H. denied the sexual assault. [5] The trial judge considered the testimony of the complainants, that of two other friends of K.M. and that of the accused.

Thetrial judge assessed the credibility of the witnesses and applied the principles set out in R. v. W.(D.), (SCC), [1991] 1S.C.R. 742. [6] The trial judge found R.J.H. guilty of sexual assault and sexual interference against K.M., and sexual assault and sexualinterference against A.D. Applying R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729, he entered a “conditional stay” withrespect to the two convictions for sexual interference. He also found R.J.H. guilty of four breaches of probation.

ISSUES [7] Should production of K.M.’s school attendance records be ordered as fresh evidence in this appeal, as sought by R.J.H.? [8] Should records found on R.J.H.’s computer of him “chatting” with K.M. and A.D. be received as fresh evidence by this Court? [9] Should the verdicts be set aside on the basis that the trial judge’s assessment of credibility was flawed, in that he failed to giveproper weight to inconsistencies in the testimony of the two complainants? (

A) Production of School Attendance Records [10] R.J.H. in his written submissions stated: [I]n the testimony of K.M. I found out that in volume one p14 line 7-9 it states she goes to school at [name of school deleted] in grade10. I’ve been told by a number of people in goose bay that this is false, she is in fact a stay at home mother and got pregnant at the ageof 14 yrs old. I even went as far as too try and contact the school to verify this but needs a court order to get her attendance informationas I told judge wells in my last hearing. In Volume 3 p14 line 11-12 she states she lives at home with her son.

Her saying she is inschool on the stand is just proof of how much disregard she has for telling the truth while under oath on the stand, thus how can webelieve any more of her testimony. (Emphasis added.) [11] The Crown opposed production of K.M.’s school attendance records on the basis that the records did not meet the test for freshevidence set out by the Supreme Court of Canada in Palmer v. The Queen, (SCC), [1980] 1 S.C.R. 759 at 775:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial, provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases [citation omitted].

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to haveaffected the result. [12] In this case, it is necessary to consider only the second and fourth criteria. The appellant’s reason for wanting to adduce thisevidence is that he believes that if K.M. was untruthful about her school attendance, she should not be believed regarding any of herother testimony. This is not how evidence is assessed. A judge may accept all, a portion or none of what a witness says.

In this case,whether K.M. was attending school regularly, or was registered, is not relevant to the charges. Even if she was untruthful aboutattending school, this is collateral to the matters in issue. It is evidence that taken together with the other evidence at trial, would notreasonably be expected to have affected the result. Thus, the school attendance records, even if they could be produced pursuant to anapplication under s. 278.3 of the Criminal Code, would not be admissible as fresh evidence in this appeal.

(B) “Chat” Logs from R.J.H’s Computer [ 13 ] R.J.H. printed off “chat” logs from the computer that police had seized from him. These logs, he submitted, were relevant, in that they do not include any messages of a sexual nature. [ 14 ] The Crown opposed these “chat” logs being received as fresh evidence, on the basis that they did not meet the test set out by the Supreme Court of Canada in Palmer , supra .

Applying the test: (1) the “chat” logs could have been adduced at trial, (2) they are relevant, but only marginally, (3) they are credible, but have little probative value, (4) even if believed, taken with other evidence at trial, they could not be expected to have affected the result. [ 15 ] R.J.H. had the computer in his possession for a significant period after the (alleged) offences and, thus, had ample opportunity to delete inculpatory “chat” logs. As well, the Crown led evidence of “chat” logs from another computer that were inculpatory; the fresh evidence would not rebut this other inculpatory evidence.

Rather, it would only show that on some occasions R.J.H.’s communications with K.M. and A.D. were not sexual in nature. For all the foregoing reasons, the “chat” logs provided by R.J.H. are not received as fresh evidence. (

C) Inconsistencies in the Complainant’s Testimony [ 16 ] R.J.H.’s list of what he refers to as inconsistencies in the testimony of the complainants amounts to his saying that, as witnesses, K.M. and A.D. did not have perfect recall. Witnesses rarely do. Failure to recall a few relatively minor points does not undermine a witness’s testimony.

I give two examples of points raised by R.J.H.: In volume 3 page 8 lines 20-22 it says [K.M.’s] panties was removed and sexual intercourse was attempted, yet her own testimony says she never seen my penis and that she wasn’t sure if her panties was removed, and that she never had no pain or any other feeling during this alleged assault makes it clear that there was no assault at all. … In the case of [A.D.] I do not recall her being in my truck but I also do not deny she was.

But her miss describing the front seat shows me that she was never in the front of my truck as she says and thus never on my lap and the verdict there should be over turned as well. Volume one page 60 lines 5-8 [ 17 ] I have closely read the assessment of credibility set out by the trial judge in his reasons for decision. His analysis is clear, thorough, well-structured and logical. I see no basis for setting it aside. CONCLUSION [ 18 ] The appeal against conviction is dismissed. _____________________________ M. H. Rowe J.A. I Concur: ___________________________ B. G. Welsh J.A.

I Concur: ___________________________ C. W. White J.A.