R. v. Best, 2016 NLCA 10

IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL Citation: R. v. Best , 2016 NLCA 10 Date: March 7, 2016 Docket: 201401H0076 BETWEEN: CRAIG BEST APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT Coram: Welsh, White & Hoegg JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division(G) 201301G3590, 2014 NLTD(G) 38 Appeal Heard: December 10, 2015 Judgment Rendered: March 7, 2016 Reasons for Judgment by Hoegg J.A. Concurred in by Welsh and White JJ.A.

Counsel for the Appellant: Rosellen Sullivan Counsel for the Respondent: Iain Hollett Hoegg J.A.: INTRODUCTION [ 1 ] Craig Best was convicted of assault, assault causing bodily harm and breaching his probation order in relation to altercations which took place between January 1, 2010 and August 21, 2011 involving his former girlfriend. He appeals only his conviction for assault causing bodily harm which was based on the Judge’s findings of guilt respecting two separate incidents.

For ease of reference, I will refer to them, as the Judge did, as the punch-in-the-face incident (February 2010) and the shin-kicking incident (February 2011). Mr. Best appeals the guilty findings respecting both incidents.

ISSUES [2] Mr.

Best alleges that the Judge erred by: 1) making findings of credibility not supported by the evidence; 2) failing to apply the law of self-defence in relation to the punch-in-the-face incident; 3) relying on the complainant’s family doctor’s evidence to corroborate the complainant’s evidence respecting the shin-kickingincident; and 4) refusing to grant his request for an adjournment to seek and perhaps call expert evidence respecting primarily the shin-kickingincident but also touching on the punch-in-the-face incident. [3] The issues are whether the Judge’s findings of guilt and his refusal to grant the requested adjournment were in error.

ANALYSIS Did the Judge err by making credibility findings not supported by the evidence? [4] Mr. Best is not alleging that the Judge made any palpable and overriding errors of fact in his assessment of the evidencerespecting the credibility of the Complainant or Mr. Best. Rather, Mr. Best’s argument rests on the contention that the Judge could notreally have believed the Complainant’s evidence respecting the punch-in-the-face incident because he was not convinced beyond areasonable doubt of Mr.

Best’s guilt respecting other assaults alleged by the Complainant, and the only other alleged assaults whichresulted in convictions involved corroborative evidence from witnesses other than the Complainant. [5] The Judge specifically stated at paragraph 14 of his decision that he found the Complainant to be a credible witness: … The Crown called four witnesses, including the Complainant, two acquaintances and a physician. The Complainant’s testimonydescribed twelve incidents over a 21-month period.

Her testimony was consistent with her prior statement to the police, consistent withher testimony at the preliminary hearing and internally consistent. When I say internally consistent, I find that she did not contradictherself while testifying in a way that had a negative impact on my assessment of her credibility.

Inconsistencies were explained to mysatisfaction, or related to details that did not adversely affect my overall assessment of her credibility. … [6] Regardless of the Judge’s general comments about the Complainant’s credibility, regard must be had to basic principles aboutthe assessment of a witness’s credibility. A judge or any trier of fact can accept “all, some or none” of a witness’s evidence. In otherwords, because a judge accepts a witness’s testimony on some points does not mean that he or she must accept that witness’s testimonyon all or any other points.

Conversely, a judge need not reject a witness’s evidence on all or any other points because he or she does notaccept that witness’s evidence on some points.

It is a trial judge’s duty to consider and weigh individual pieces of evidence, includingthe testimony proffered by individual witnesses, in the context of all the evidence, and he or she does not err in accepting some andrejecting other evidence from the same witness provided that he or she applies the applicable law and gives adequate reasons for his orher decision. [7] The principle of reasonable doubt is at play in all criminal cases, and is often the governing legal principle in cases which canbe described as “credibility contests”.

Many factors go into a judge’s application of the principle of reasonable doubt, and it cannotalways be said that his or her decision to acquit an accused on a particular charge is based entirely on a rejection of a particular witness’sevidence. Conversely, a judge’s decision to convict an accused does not mean that he or she accepts all of a particular witness’sevidence. What is required is that a judge consider whether he or she believes an accused, and even if he or she does not, whether theaccused’s evidence leaves him or her with a reasonable doubt about the accused’s guilt.

If he or she has no reasonable doubt about theaccused’s guilt after these considerations, he or she must still ask him or herself if he or she is convinced of the accused’s guilt on thebasis of the evidence he or she does accept (R. v. W.(D.) (SCC), [1991] 1 S.C.R. 742 page 758 and R. v. Dinardo, 2008SCC 24, [2008] 1 S.C.R. 788 at para. 23). [8] It is clear from the record in this case that the relationship between the Complainant and Mr. Best was a fractious one markedby episodes of tension and violence.

The Judge’s decision shows that he considered the evidence respecting each of the several chargesand gave reasons why he found Mr.

Best guilty of some of the charges and not guilty of others. [9] In regard to the punch-in-the-face incident, the Judge listed, at paragraph 27, the following reasons for accepting that itoccurred as described by the Complainant: • The Defendant admitted that he was angry, and admitted he left his bachelor unit and confronted the Complainant, from which Iinfer he lost his temper; • The Defendant waited until the Complainant was alone; • It is not reasonably probable that the Defendant, in his angry state, would casually invite a second blow to his face from thewoman who was the source of his anger; • It is not reasonably probable that the Defendant calmly walked away from the violence and returned to his unit, as he testified; • Ms.

Michelin observed that the Defendant was still standing in the hall by the door of the apartment occupied by Complainantwhen she came downstairs after the incident; • The visible scar that remains on the Complainant’s face (lip area) corroborates violent forces; and

• Immediately following the incident, Ms. Michelin observed no marks on the Defendant’s face, but observed blood and cut markson the Complainant’s face. To my mind these reasons as well as the Judge’s analysis of the evidence respecting the incident at paragraphs 21 to 27 of his decisionshow that he properly considered the Complainant’s and Mr. Best’s evidence in the context of the whole of the evidence and that heproperly applied the principle of reasonable doubt. His finding of guilt respecting the punch-in-the-face assault is not shown to be inerror, and is entitled to deference.

Did the Judge err by misapplying the law of self-defence in relation to the punch-in-the-face incident? [10] Mr. Best testified at trial that he hit the Complainant in the face in response to her having struck him first.

He maintains thatbecause the Complainant admitted on cross-examination that she had punched him in the face on another occasion unrelated to thecharges before the Court, his evidence that he hit the Complainant in the face with his open hand because she punched him first gave an“air of reality” to his defence of self-defence, which required the Judge to apply the law of self-defence to the facts of this incident. [11] “Air of reality” is a legal term used to describe a situation where there is some evidence “reasonably capable of supporting theinferences required for the defence to succeed” (R. v.

Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 83). Although the expressionenjoys some conversational usage, “air of reality” is an assessment tool used by a trial judge in determining whether a defence should beput to a jury for consideration. In other words, when the evidence meets a certain threshold, it is said to have an “air of reality” so as tojustify putting the defence to the jury. [12] The time-honoured defence of self-defence operates as a complete defence to most assault-based Criminal Code charges. Thedefence is codified in

section 34 of the Criminal Code. In

summary, in order to avail of the defence, an accused must believe onreasonable grounds that force is being used against him or her, his or her offending conduct is for the purpose of defending or protectinghim or herself, and the offending conduct is reasonable in the circumstances. The

section lists a number of factors to be considered by acourt in determining the reasonableness of the offending conduct. [13] Mr. Best’s trial was heard by a judge alone. In a judge alone trial, there is no requirement for a judge to explain why he or sheis rejecting that defence. It is enough if the judge gives sufficient reasons for rejecting the evidence on which an accused relies tosupport the defence. As noted above, the Judge rejected Mr. Best’s evidence that he “slapped” the Complainant in the face because shehad punched him first. The Judge explained why he rejected Mr.

Best’s testimony in this regard and gave detailed reasons for hisfinding of guilt. The fact that the Complainant admitted to having punched Mr. Best on a prior occasion unrelated to this incident is butone small piece of the evidence which informed the Judge’s consideration and rejection of Mr. Best’s “self-defence evidence”. In anyevent, review of the Judge’s reasons demonstrates that they more than adequately address the requirements of section 34(1) as well asthe factors listed in section 34(2) .

In sum, the Judge’s decision shows that the evidence was not “reasonably capable of supporting theinferences required for the defence to succeed” and that there was therefore no “air of reality” to it. Accordingly, I see no error on thepart of the Judge and I would give no effect to this ground of appeal.

Did the Judge err in accepting the family doctor’s evidence as corroboration of the complainant’s evidence respecting the shin-kicking incident? [14] The Judge summarized his finding of guilt respecting the shin-kicking incident at paragraph 55 of his decision, saying he wassatisfied that the incident occurred as described by the Complainant and that he was not left in any reasonable doubt by Mr. Best’sdenials.

At paragraphs 56 to 58, the Judge described the evidence, dealt with an inconsistency in the Complainant’s evidence concerningthe length of time discoloration from her leg injury lasted, and explained why he found Mr. Best’s denials that he kicked theComplainant unpersuasive. He concluded at paragraph 59: I accept the Complainant’s evidence on this incident and am not left in any reasonable doubt by the Defendant’s evidence.

The physicalinjuries observed by the doctor corroborate the Complainant’s version of this event. [15] The Complainant’s family doctor testified to seeing bruising on the Complainant, including on her leg, shortly after the timewhen the Complainant said she was assaulted. The Judge relied on the doctor’s observations as corroboration of the Complainant’sevidence respecting this assault. [16] Mr. Best argues that the doctor’s evidence does not corroborate the Complainant’s evidence. [17] Black’s Law Dictionary defines corroboration as “to confirm action or support by additional evidence or authority”.

TheDictionary of Canadian Law defines it as “confirmation of a witness’s evidence by independent testimony”. The Supreme Courtcharacterizes this kind of evidence as confirmatory rather than corroborative (see R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328 and R.v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104). [18] The doctor’s evidence is not direct evidence and it does not prove that Mr. Best assaulted the Complainant.

However, evidencedoes not have to conclusively prove a point in issue to be corroborative; evidence that supports a material particular of a witness’stestimony can rightly be described as corroborative or confirmatory (Vetrovec v. The Queen, (SCC), [1982] 1 S.C.R.811, at 826-829).

In this case, the doctor’s evidence respecting her observations of the Complainant when she presented in the doctor’sclinic confirms material particulars of the Complainant’s testimony; it demonstrates that the Complainant sustained injury consistentwith her testimony of injury to certain parts of her body, and the timing of the medical consultation is consistent with the Complainant’sevidence as to when she was assaulted.

Accordingly, the Judge was entitled to rely on the doctor’s observations of the Complainant ascorroborative of the Complainant’s testimony. [19] The doctor’s chart was admitted into evidence on the basis that it was a record of the Complainant’s consultation with thedoctor made contemporaneously with the consultation. The doctor’s chart contained notes referencing the Complainant’s report that she

had been beaten by her boyfriend and the doctor’s concerns for the Complainant’s safety. Mr. Best argues that admission of the doctor’schart into evidence and any testimony the doctor gave in regard to what the Complainant told her about the cause of her injuries wascontrary to the rule against admissibility of prior consistent statements. [20] Prior consistent statements, sometimes referred to as oath-helping, are generally inadmissible on the basis that they are self-serving and that they lack probative value.

The rationale is that a witness should not be permitted to create evidence for him or herselfby repeating his or her versions of an event, and that a statement does not become more credible by being repeated. However, there areexceptions to this general principle. One exception is that prior consistent statements are admissible to refute an allegation that awitness’s evidence was fabricated after the incident giving rise to the charge and before a motivation to fabricate arose (R. v. Stirling,2008 SCC 10, [2008] 1 S.C.R. 272 at para. 5, Dinardo at paras. 36-40, and R. v.

R.W., 2011 NLCA 45, 308 Nfld. & P.E.I.R. 197 atparas. 27-31). Mr. Best argues that this exception is not applicable in this case because he did not allege recent fabrication. [21] It is not necessary that recent fabrication be specifically alleged in order for a prior consistent statement to be admissible. Thewords of Martin J.A. in R. v. Campbell (1977), (ON CA), 38 C.C.C. (2d) 6 (Ont.

C.A.), at para. 46 explain why: I accept the proposition that an express allegation of recent fabrication in cross-examination is not necessary before the exception withrespect to rebutting an allegation of recent fabrication becomes operative, and that a suggestion that the accused’s story has been recentlycontrived may also arise implicitly from the whole circumstances of the case, the evidence of the witnesses who have been called, andthe conduct of the trial. … This reasoning was upheld in Stirling, wherein Justice Bastarache stated it “is sufficient that the circumstances of the case reveal that theapparent position of the opposing party is that there has been a prior contrivance” (at paragraph 5). [22] Although Mr.

Best did not specifically allege recent fabrication, his entire defence was based on allegations that the complainantcontrived her evidence respecting all of the alleged assaults in order to have him convicted. The doctor’s chart and any related testimonyconcerning what the Complainant told her therefore fits squarely within the exception addressed in Stirling, making the evidenceproperly admissible. [23] Once admitted though, the use of such evidence is circumscribed, as Stirling and Dinardo point out.

Charron J. put it this wayat paragraph 37 of Dinardo: … The challenge is to distinguish between "using narrative evidence for the impermissible purpose of 'confirm[ing] the truthfulness ofthe sworn allegation'" and "using narrative evidence for the permissible purpose of showing the fact and timing of a complaint, whichmay then assist the trier of fact in the assessment of truthfulness or credibility" … Accordingly, such evidence is probative of a witness’s credibility in the sense that it goes to whether the witness fabricated his or herevidence as a result of a motive to do so, but it is not probative of the truth of the prior consistent statement (Stirling at para. 7 andDinardo paras. 37-38).

In this case, the evidence is probative of the Complainant’s credibility and the fact that the Complainant did notfabricate her evidence to support the charges, but not probative of the truth of what she told the doctor. [24] The Judge’s decision makes clear that he did not rely on any evidence from the doctor’s chart or testimony respecting what theComplainant told her as corroborative of the Complainant’s allegation of assault; he relied only on the doctor’s observations of theComplainant’s injuries as corroboration. This he was entitled to do.

The Judge was also entitled to rely on evidence of what theComplainant told her doctor about the cause of her injuries when assessing the Complainant’s credibility in regard to Mr. Best’s positionthat her evidence was contrived. Accordingly, the Judge’s finding of guilt respecting the shin-kicking incident has not been shown to bein error. [25] In the result, no error has been shown respecting the Judge’s findings of guilt respecting both the punch-in-the-face and thekick-in-shin incidents. The Judge’s conviction of Mr.

Best for assault causing bodily harm, based on the two findings of guilt respectingthe two separate incidents, stands. Did the Judge err in refusing Mr. Best’s request for an adjournment to seek expert opinion touching on the shin-kicking incident? [26] After the Crown had completed its case, Mr. Best’s counsel requested a brief adjournment so that she could seek and possiblycall expert evidence touching on the shin-kicking incident. In this regard, the Complainant had testified that the marks on her leg causedby Mr. Best’s assault had lasted approximately two years.

In her cross-examination of the Complainant, Defence Counsel challenged theComplainant’s evidence that the marks lasted that long. Counsel explained to the Court that she wished to seek expert opinion to exploreif it were medically possible that such marks could last for two years. If helpful expert opinion were obtained, she would seek to adduceit in evidence in an effort to diminish the Complainant’s credibility. Defence Counsel advised that she was not assuring the Court thatMr.

Best would call the expert evidence, only that he wanted the opportunity to seek the evidence and decide whether to attempt toadduce it. Defence Counsel advised that the proposed expert would be providing an opinion based on a review of the transcript of theComplainant’s evidence. [27] In this Court, Mr.

Best submits the Complainant’s credibility on the shin-kicking incident could have been diminished if thedesired opinion had been obtained and then admitted into evidence, and also that it could have been helpful to him respecting the punch-in-the-face incident in that it could also have related to the length of time the Complainant’s facial injury took to heal. [28] The Judge ruled against Mr.

Best’s request for an adjournment, saying that the expert evidence sought by the defence was forthe purpose of commenting on the duration of marks from the Complainant’s injuries, which did not relate to whether the assaultoccurred and therefore was not material to the charges before the court. The Judge stated that Mr.

Best’s purpose for seeking the expertopinion was to diminish the Complainant’s credibility which was not a matter in respect of which he needed expert evidence, and alsothat expert evidence on the length of time the injury marks (in this case bruises, discoloration and a facial cut from which the scarremained visible after 3 years) last on a body was within the realm of general experience. He noted that the potential expert witnesswould be opining on the typical duration of visible symptoms of assault injuries in general, but not for this particular Complainant.

[29] A judge’s decision respecting whether an adjournment ought to be granted for the purpose of procuring a witness isdiscretionary, and reviewable on appeal if the judge did not exercise his discretion judicially (R. v. MacDonald (1998), (NL CA), 169 Nfld. & P.E.I.R. 351 (Nfld. C.A.)).

MacDonald describes the judicial exercise of discretion as one that is based onreasons well founded in law (paragraph 3). [30] MacDonald identifies three factors for consideration of a request for an adjournment: 1) whether the proposed evidence would likely be material; 2) whether there was neglect by the lawyer seeking the adjournment in procurement of the witness; and 3) whether there is a reasonable expectation that the witness can be available at a reasonably close future date. [31] Whether markings from an assault, be they bruises, discoloration, or scars, last for six months, a year or two years is notmaterial to whether an assault causing bodily harm occurred.

While the existence of markings resulting from an alleged assault maytouch on whether such an assault occurred, their duration as between weeks, months, or years does not go to the elements of assaultcausing bodily harm. [32] In this case, the Judge saw the scar on the Complainant’s face (some three years post injury) and heard the evidence of theComplainant and her doctor with respect to the bruising and/or discoloration on her leg.

In this context, expert evidence about thehealing of her facial wound or the length of time markings from the kicks to her leg lasted is not helpful to whether the two assaults tookplace. This is so even if the expert evidence could be said to apply to the particular body and skin of the Complainant. Accordingly, theproposed expert opinion, if obtained and admitted would not have been material to the offence charged, as the Judge determined. [33] The second MacDonald factor relates to lawyer neglect in seeking procurement of the proposed witness.

Despite the Crown’sargument that issues respecting the duration of the Complainant’s injuries were well known in advance of trial, I am not disposed tosaying counsel was neglectful in not seeking expert advice sooner. A trial is a fluid process, and many issues arise as a result of how theevidence comes out. Failing to anticipate that evidence would or could take on different significance as it is adduced during trial doesnot necessarily demonstrate neglect on the part of counsel.

In this case, after hearing the Crown’s evidence, Defence Counsel sought anadjournment to pursue an issue she thought could be helpful to her client. This is her job. The fact that her request was not granted bythe Court does not mean that she was neglectful in her duty to her client or that she was wrong to make the request. [34] The third MacDonald factor is of mixed effect. I note that MacDonald involved a request for an adjournment to procure aknown fact witness as opposed to an expert witness who typically may require time to prepare to testify.

However, Defence Counselassured the Court that if she obtained the opinion she was seeking her proposed expert would be available to testify within a short time sothat there would not be significant delay in the resumption of the trial. On the other hand, weighing against Mr. Best’s position is that itwas far from certain that the evidence sought would be either obtained, proffered, or admitted. [35] In all the circumstances, the Judge did not err in refusing to grant the adjournment. The sought-after expert evidence was notmaterial to the offences charged.

Neither was it necessary to assist the court in its understanding of an issue both of dubious import andoutside of usual human experience. Nothing useful would have been served by the admission of the sought-after expert evidence even ifit had been obtained. [36] In

summary, application of the MacDonald factors to this case shows that the Judge’s reasons for not granting the adjournmentare well founded in law. Accordingly, he exercised his discretion judicially in refusing to grant Mr. Best’s request for an adjournment. [37] In the result, Mr. Best has not shown that the Judge erred in his rulings respecting his grounds of appeal. I would dismiss hisappeal. ________________________ L. R. Hoegg J.A. I concur: ____________________ B. G. Welsh J.A. I concur: ____________________ C. W. White J.A.