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R. v. J.A.A. 2011 SCC 17

                   Criminal law — Evidence — Fresh evidence — Charge of sexual assault — Wound on accused’s finger — Complainant alleging to have bitten accused during assault — Police officer at trial giving lay evidence as to wound being a bite wound — No expert testimony as to nature of wound led at trial — Accused, on appeal, wishing to introduce evidence of forensic dentist — Whether fresh evidence should be admitted.

                   The accused was convicted of sexual assault and sexual assault with a weapon, both offences arising from an alleged confrontation with his wife.  The accused denied sexually assaulting the complainant and testified that the sexual relations were consensual.  The complainant, however, testified that the accused had sexually assaulted her repeatedly and that she had bitten one of his fingers very hard during the assault.  The attending police officer testified, without objection on the part of the defence, that he saw a cut that looked like a tooth mark on one of the accused’s fingers.

                   The trial judge was satisfied beyond a reasonable doubt of the accused’s guilt.  On appeal, the accused argued that the trial judge erred by placing too much emphasis on the complainant’s post-offence demeanour, in his approach to assessing credibility and in relying on the injury to his finger as corroborative evidence.  He moved to introduce as fresh evidence the report of a forensic dentist, who had concluded that the mark on his finger was not the result of a bite mark, arguing that this fresh evidence strongly undermined the trial judge’s reasons and verdict.  A majority of the Court of Appeal dismissed the application as well as the other grounds of the appeal.  The main issue is whether or not the application to introduce fresh evidence should be allowed.

                   Held:  The appeal should allowed.  The fresh evidence should be admitted, the convictions set aside and a new trial ordered.

                   Per McLachlin C.J. and Binnie, Fish, Charron and Cromwell JJ.:  The criteria for admitting fresh evidence, established in Palmer v. The Queen, 1979 CanLII 8 (S.C.C.), [1980] 1 S.C.R. 759, include the requirements that the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial and that the fresh evidence must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.  Although the accused essentially conceded that he failed to meet the due diligence criterion, as this evidence obviously could have been adduced at trial, this factor should not trump the other Palmer criteria, particularly in circumstances such as here where trial counsel’s strategy was not unreasonable given the nature of the anticipated Crown evidence.  Neither the Crown nor the defence had contemplated calling expert evidence about the mark on the accused’s finger.

                   The proposed expert evidence could reasonably be expected to have affected the result.  The trial judge viewed this case as a close one and, while he found the complainant to be credible, he also commented favourably on the accused’s testimony.  In ultimately rejecting the accused’s testimony, he twice mentioned the injury to the accused finger, clearly regarding it as corroborative.  The fresh evidence reveals that reliance on this evidence is misplaced and, if accepted, would not only vitiate one of the bases for the trial judge’s reliance on the complainant’s testimony and his rejection of the appellant’s version of events but also would arguably undermine the complainant’s credibility.  While the officer was qualified to describe the injury he saw, his evidence arguably exceeded the proper boundaries of lay opinion evidence.  In light of the expert’s direct refutation of the officer’s opinion, the prejudicial effect of its erroneous admission is brought into sharp focus.  When considered in the context of the other evidence at trial and the trial judge’s reasons as a whole, the fresh evidence was sufficiently cogent that it could reasonably be expected to have affected the verdict.  It was not necessary to address the other grounds of appeal.

Jim O'Neil, LL.B.

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