Trial judge did not improperly rely on reply evidence called by Crown

Ontario criminal | Evidence

REBUTTAL EVIDENCE

Trial judge did not improperly rely on reply evidence called by Crown

Accused appealed conviction for criminal harassment. Complainant testified that she became uncomfortable with accused’s romantic interest in her, and advised him that she wanted no further communication. Although accused was placed on strict conditions by his employer to avoid contact with complainant, he continued to appear in places where she would go. Accused testified that events described by complainant had occurred, but indicated that he did not understand that his contact with her was unwanted, as she continued to politely respond to his emails from time to time. Accused testified that complainant had invited him to dinner party at her house. In cross-examination, Crown put to accused that he had approached another dinner guest to see if he might go to dinner hosted by complainant, and told accused that he would call her as reply witness. Crown called other dinner guest in reply, and no objection was made by defence counsel, who cross-examined her by suggesting to her that accused may have perceived that invitation to dinner came from complainant. Trial judge found that complainant and dinner guest were credible witnesses and that accused was not. Trial judge found that accused knowingly harassed complainant. Accused argued that trial judge improperly relied on reply evidence called by Crown which should not have been admitted, as it was purely collateral. Appeal dismissed. While dinner guest’s account of way in which accused managed to attend complainant’s dinner party had marginal relevance in Crown’s case, accused’s testimony that complainant had invited him took on new significance in light of his testimony in regards to harassing behaviour, which he similarly characterized as “at invitation of” complainant. It was unfortunate that defence counsel did not object to reply evidence, but in all of circumstances, trial judge did not err in permitting Crown to call evidence. Even if evidence were collateral, it played minimal role in assessment by trial judge of accused’s credibility. In face of overwhelming evidence of accused’s criminally harassing behaviour, there was no substantial wrong or miscarriage of justice in admitting reply evidence.
R. v. Alton (Apr. 8, 2015, Ont. S.C.J., Miller J., File No. 79/14) 120 W.C.B. (2d) 460.

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