R. v. Murphy, 2013 NLCA 39

Date: 20130610 Docket: 09/92 Citation: R. v. Murphy , 2013 NLCA 39

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 APPLICANT AND: HER MAJESTY THE QUEEN RESPONDENT Coram: Welsh, Rowe and White JJ.A. Court Appealed From: The Supreme Court of Newfoundland and Labrador Trial Division, (G) 200901T0059 Application Heard: May 14, 2013 Decision Rendered: June 10, 2013 Reasons for Judgment by Rowe J.A. Concurred in by Welsh and White JJ.A.

Counsel for the Applicant: Self Represented (Video Conference) Peter Ralph Q.C. appears as an aid to the Court

Counsel for the Respondent: Robin Fowler Rowe J.A.: [1] Dennis Murphy was tried by a jury and convicted of one count of sexual assault and two counts of breach of probation. Hewas sentenced to a total of 78 months imprisonment. He appealed his conviction and sentence. [2] Legal Aid agreed to represent Mr. Murphy for his appeal against sentence, but not his appeal against conviction. In light ofthis, in 2010 Mr. Murphy applied to this Court, pursuant to s. 684 of the Criminal Code, for the assignment of legal counsel at theAttorney General’s expense for his appeal against conviction. In R. v.

Murphy, 2010 NLCA 38, Chief Justice Green denied thatapplication. [3] Mr. Murphy then requested that his appeal against sentence proceed. The Court agreed to this. In R. v. Murphy, 2011 NLCA16, this Court allowed the appeal and reduced Mr. Murphy’s sentence. [4] Mr. Murphy applies again pursuant to s. 684 for the appointment of counsel for his appeal against conviction. [5] Subsection 684 reads, in part: 684.

(1) A court of appeal or a judge of that court may, at any time, assign counsel to act on behalf of an accused who is a party to anappeal or to proceedings preliminary or incidental to an appeal where, in the opinion of the court or judge, it appears desirable in theinterests of justice that the accused should have legal assistance and where it appears that the accused has not sufficient means to obtainthat assistance.

(2) Where counsel is assigned pursuant to subsection (1) and legal aid is not granted to the accused pursuant to a provincial legal aidprogram, the fees and disbursements of counsel shall be paid by the Attorney General who is the appellant or respondent, as the casemay be, in the appeal. [6] Can an accused apply a second time under s. 684? If so, is such a second application a re-hearing based on a change ofmaterial circumstances or is it an appeal of the earlier denial of the application? Are both possible? See: R. v. Bernardo (1997), (ON CA), 121 C.C.C. (3d) 123 (Ont. C.A.); R. v.

Assoun, 2002 NSCA 119, 208 N.S.R. (2d) 340; R. v. Edwards, 2002BCCA 412, 173 B.C.A.C. 111; United States v. Wilson, 2011 BCCA 164, 302 B.C.A.C. 316; R. v. Semeniuk, 2002 BCCA 244; R. v.Thompson, (B.C.C.A.); R. v. Parchment, 2011 BCCA 174; and R. v. Lac, 2011 BCCA 93. For the purposes of thisappeal, where the issues were not addressed by counsel, I will leave the foregoing questions unanswered. [7] In this application, it was argued not that the earlier denial was in error, but that new circumstances have arisen from thereasons for decision in Mr. Murphy’s sentence appeal.

Since this is not an appropriate case in which to decide the issues set out inparagraph 6, out of an abundance of caution, this application was heard by a panel of three judges, as would be necessary if this were anappeal. [8] In this application, although Mr. Murphy was unrepresented, Peter Ralph Q.C. appeared of his own motion as an aid to theCourt. Were the application to be granted, Mr. Ralph or a member of his firm could expect to be the counsel assigned by the Court torepresent Mr.

Murphy. [9] The test for the assignment of counsel pursuant to s. 684 includes as one element, “are there serious (i.e. not frivolous) issuesto be dealt with in the appeal”. See R. v. Ryan, 2008 NLCA 42. That is the question here. [10] Mr. Ralph, in his role as an aid to the Court, focused on what this Court said in the appeal against sentence concerning the trialjudge’s treatment of the complainant’s testimony that she had been choked and punched in the face (the “physical assaults”).

In thisregard, he focused on what this Court said in the appeal against sentence concerning the treatment of the complainant’s testimony by thetrial judge in his sentencing decision. The trial judge had taken the complainant’s testimony dealing with the physical assaults(accompanying the sexual assault) as necessarily having been believed by the jury in rendering their verdict of guilty.

The trial judgerelied on this in treating the physical assaults as an aggravating factor in sentencing. [11] In the sentence appeal, this Court pointed out that the physical assaults were not part of the actus reus of the offence of sexualassault and, accordingly, the jury could properly have convicted Mr. Murphy of sexual assault whether or not they found the physicalassaults to have been proven. Thus, simply by virtue of the guilty verdict, the trial judge could not conclude that the jury was persuadedbeyond a reasonable doubt that Mr. Murphy had inflicted the alleged physical assaults on the complainant.

This Court held that the trialjudge’s reliance on the jury’s verdict as proof of the physical assaults as an aggravating factor was an error in principle; it reduced Mr.Murphy’s sentence. [12] However, none of this casts a shadow on the soundness of the jury’s verdict of guilt for sexual assault. Thus, it does not aid Mr.Murphy in his appeal against conviction. [13] In Mr. Murphy’s earlier application under s. 684, the Chief Justice held that other issues raised by Mr. Murphy did not meet therequirement that there be a “serious issue to be dealt with in the appeal”.

There is no basis on which to reach a different conclusion now. [14] Accordingly, I would deny the application. ______________________________ M. H. Rowe J.A.

I Concur: _________________________ B. G. Welsh J.A. I Concur: _________________________ C. W. White J.A.