R v K.R.R., 2018 MBCA 15

Citation: R v K.R.R., 2018 MBCA 15 Date: 20180214 Docket: AR17-30-08776 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Mr. Justice Christopher J. Mainella Madam Justice Jennifer A. Pfuetzner BETWEEN: HER MAJESTY THE QUEEN ) R. T. Amy and ) C. L. MahoneyRespondent) for the Appellant ) ) A. C. Bergen- and - ) for the Respondent) K.R.R. ) Appeal heard and ) Decision pronounced:(Accused) Appellant) February 14, 2018 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that coulddisclose the identity of the complainant(

s) or witness(es) (see

section 486.4 of the Criminal Code). On appeal from 2016 MBQB 211 MAINELLA JA (for the Court): [1] The accused appeals his conviction for sexual assault after a trial by judge alone. The two grounds of appeal are: (1) the judge failed to provide adequate reasons for disbelieving the accused; and (2) the judge misapprehended the evidence as to thecomplainant’s demeanour and mental state after the alleged assault when assessing her credibility. After hearing the appeal, it wasdismissed with reasons to follow.

These are those reasons. [2] The judge heard divergent versions of whether consensual sex occurred when the accused slept over at the apartmentof his best friend and his friend’s girlfriend, the complainant. The complainant said she was awoken by a man performing cunnilinguson her. She could not see the man’s face as she was lying down and there was a blanket. She thought it was her boyfriend. After two orthree minutes of oral sex, she called out her boyfriend’s name. The man stopped. She sat up and realized it was the accused.

Incontrast, the accused said he was watching television in the living room next to his friend who was passed out. He got up to go to thebathroom. The complainant called out to him for a glass of water. He went into the bedroom and she was visibly naked on the bed. Onething led to another until she agreed to him performing cunnilingus on her. It is common ground that, shortly after the oral sex ceased,the complainant became upset and asked the accused to leave.

Soon after, she disclosed what occurred to her mother who immediatelycalled police. [3] In terms of the first ground of appeal, if a functional approach is taken to the judge’s reasons, in light of the record,we are satisfied that the reasons adequately provide us with a sufficient explanation as to why the accused was not believed such that wecan effectively review whether the judge’s credibility assessment can be reasonably supported by the record (see R v REM, 2008 SCC 51at para 35; and R v RP, 2012 SCC 22 at para 10). [4] In his analysis, the judge, applying R v W(D), (SCC), [1991] 1 SCR 742, first considered theaccused’s evidence, which he found to be “not plausible or believable” (at para 58).

He gave two reasons for that finding. First, hestated that the accused’s version was inherently implausible that the complainant would brazenly cheat on her boyfriend, who was

nearby, and engage in oral sex with his best friend for about 15 minutes to the point of orgasm, without even inquiring as to whether herboyfriend was awake or asleep. Second, he rejected the accused’s testimony that the reason that he was willing to engage in sexualactivity with the complainant was because her boyfriend had told him that their relationship was on the rocks and that he was interestedin another woman. The boyfriend testified at the trial and denied having ever said that to the accused and, in fact, the complainant andher boyfriend were still in a relationship at the time of the trial.

The complainant, as well, denied that they were having relationshipdifficulties. In our view, it was open to the judge to find, as he did, that the accused “tailored his evidence” (at para 53) to come up withan explanation as to why he had oral sex with the complainant despite her boyfriend being in the adjacent room.

We would not accede tothis ground of appeal. [5] In terms of the other ground of appeal, the judge found that, after the sexual activity, the complainant went through a“cycle of emotion” (at para 18) beginning with being confused and scared, then hysterical and angry, calming down for awhile, and thenagain becoming distraught and tearful when asked what happened by police or medical staff. The judge found her demeanour andmental state to be “plausible and understandable” (at para 66) in the circumstances. [6] The accused says the complainant “feigned” being upset, depending on the audience.

He argues she was acting tocover up her infidelity. He relies on the fact she had the presence of mind to hide drug paraphernalia before police arrived and that heremotions fluctuated greatly. [7] The law as to what constitutes a misapprehension of evidence was stated as follows in R v Whiteway (BDT) et al,2015 MBCA 24 (at para 32): A misapprehension of evidence may refer to a mistake as to the substance of evidence, a failure to consider evidence relevant to amaterial issue or a failure to give proper effect to evidence (R. v. Morrissey (R.J.) (1995), (ON CA), 80 O.A.C. 161 atpara. 83; and R. v.

Sinclair, 2011 SCC 40 at para. 13, [2011] 3 S.C.R. 3). A misapprehension of the evidence is not to be confused with adifferent

interpretation of the evidence than the one adopted by the trial judge (R. v. Lee, 2010 SCC 52 at para. 4, [2010] 3 S.C.R. 99). Itis insufficient that the judge may have misapprehended the evidence; the error must be readily obvious (Sinclair at para. 53). [8] Our role is not to retry the case and come to a different conclusion as to the complainant’s credibility, given herdemeanour and mental state after the sexual activity, when the judge’s determination was reasonably available to him on the record. Weare not persuaded that the judge may have misapprehended the evidence, let alone obviously did. [9] In the result, the appeal was dismissed. JA JA JA