Supreme Court


Evidence

Examination of witnesses

Previous statements

Type of evidence placed improperly before jury was particularly pernicious

Accused was charged with several offences against complainant wife including assault, sexual assault, and assault with weapon. Before trial, accused applied to cross-examine wife on her previous sexual activity, including video of parties engaging in anal sex and texts between wife and person with whom she was having affair during marriage. Trial judge admitted cross examination on texts and video transcript. Defence counsel completed cross-examination of wife on Friday afternoon. Crown counsel advised he had no questions on re-direct and trial resumed on following Tuesday. At commencement of Tuesday hearing, Crown sought to have complainant recalled so she could testify as to what she told others to rebut defence’s suggestion of recent fabrication. Accused was acquitted of all charges. Crown’s appeal, in part on basis that trial judge erred in refusing to permit Crown to lead evidence to rebut allegation of recent fabrication that arose during cross-examination of wife, was dismissed. Crown appealed. Appeal allowed. Acquittals were set aside and new trial was ordered. Trial judge erred both in admitting certain evidence and excluding other evidence. Trial judge erred in allowing text message and video transcript to be used as they had potential of feeding first of the twin myths and that in circumstances, proper jury examination could not undo that damage. Had evidence of rebutting recent fabrication been allowed, it might have aided in rehabilitating complainant’s credibility, thereby changing jury’s view of reliability of complainant’s evidence. Type of evidence placed improperly before jury was particularly pernicious.

R. v. B. (S.) (2017), 2017 CarswellNfld 111, 2017 CarswellNfld 112, 2017 SCC 16, 2017 CSC 16, McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., and Côté J. (S.C.C.); reversed (2016), 2016 CarswellNfld 183, 2016 NLCA 20, J.D. Green C.J.N.L., M.H. Rowe J.A., and C.W. White J.A. (N.L. C.A.).

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