Misapprehended evidence relied on to make crucial credibility assessments at trial

Ontario criminal | Appeal

GROUNDS

Misapprehended evidence relied on to make crucial credibility assessments at trial

Trial judge convicted accused of sexual assault of neighbour’s five-year-old daughter. Complainant testified during horseplay where accused blew on children’s stomachs he performed oral sex on her. Accused denied sexual contact but admitting to nature of horseplay with children. Forensic expert testified deposits of accused’s DNA found in complainant’s underwear but not from external vaginal swab. Forensic expert testified secondary transference of DNA to underwear could not be ruled out. Trial judge stated in reasons she agreed with expert DNA could not have been deposited to underwear other than through oral sex on complainant. Trial judge using finding concerning forensic evidence to bolster credibility of complainant and reject evidence of accused. Appeal allowed and new trial ordered. Trial judge critically misapprehended forensic evidence by stating deposit could only have been through oral sex and wholly ignored negative result of vaginal swab. Misapprehended evidence relied on to make crucial credibility assessments at trial. Correctly apprehended forensic evidence tended to bolster accused’s admission to non-sexual oral contact with children. Forensic evidence tended to undermine complainant’s evidence oral sex occurred.
R. v. C. (M.M.) (Apr. 23, 2014, Ont. C.A., Alexandra Hoy A.C.J.O., H.S. LaForme J.A., and G. Pardu J.A., File No. CA C54917) 112 W.C.B. (2d) 788.

Free newsletter

Our daily newsletter is FREE and keeps you up to date on all the developments in the Ontario legal community. Please complete the form below and click on subscribe for daily newsletters from Law Times.

Recent articles & video

Ford government’s cuts to Toronto city council ruled constitutional

Histories of Canadian law and Métis people are entwined, says Jean Teillet

More women are on TSX company boards - but there’s slow progress to the C-Suite, says Osler

GM lawyer Michael Smith becomes partner at Bennett Jones

Ontario court rules cap on general damages does not apply to sexual abuse

House of Commons reveals legal fee reimbursement over $54k

Most Read Articles

Ontario court rules cap on general damages does not apply to sexual abuse

Man discharged from his fourth bankruptcy

Insurance lawyers reveal their referral philosophies

Court of Appeal rules auto insurer not liable for parental negligence claim stemming from accident