New & Notable: Focusing on a proper assessment of credibility

RJH was convicted after trial of sexual assault and sexual interference against AD, an 11 year-old girl and KM a 13 year-old girl.


RJH was 32 years old at the time of the offences and knew KM from her birth. AD was a close friend of KM’s and met RJH through her friend. All three communicated regularly by computer chats. KM testified that RJH asked her to have sex with him while they were in his truck. KM said no. Undeterred, RJH pulled down her pants and panties and tried, unsuccessfully, to insert his penis into her vagina. One month later KM reported the incident to police. AD testified that while in RJH’s truck, RJH picked her up, put her on his lap and asked her to have sex. RJH asked more than once and AD kept saying no. KM was driving the truck when this happened. RJH testified and denied the offences.

RJH was convicted after trial and appealed: 2012 NLCA 44.


On appeal RJH sought to introduce fresh evidence in the form of KM’s school attendance records and chats between RJH and the two victims.


RJH also sought to have the verdicts set aside on the basis that the trial judge erred in the credibility assessment and failed to give proper weight to the inconsistencies in the testimony of the two complainants.


The Crown opposed the admission of the so-called fresh evidence. The court declined to admit any of the fresh evidence.


With respect to the chats the court found that RJH:


…had the computer in his possession for a significant period after the (alleged) offences and, thus, had ample opportunity to delete inculpatory "chat" logs. As well, the Crown led evidence of "chat" logs from another computer that were inculpatory; the fresh evidence would not rebut this other inculpatory evidence. Rather, it would only show that on some occasions R.J.H.'s communications with K.M. and A.D. were not sexual in nature [para 15].


In dealing with evidence of KM’s school attendance records the court held that:


…[t]he appellant's reason for wanting to adduce this evidence is that he believes that if K.M. was untruthful about her school attendance, she should not be believed regarding any of her other testimony. This is not how evidence is assessed. A judge may accept all, a portion or none of what a witness says. In this case, whether K.M. was attending school regularly, or was registered, is not relevant to the charges. Even if she was untruthful about attending school, this is collateral to the matters in issue. It is evidence that taken together with the other evidence at trial, would not reasonably be expected to have affected the result. Thus, the school attendance records, even if they could be produced pursuant to an application under s. 278.3 of the Criminal Code, would not be admissible as fresh evidence in this appeal [para 12]; [emphasis added].


The Court found that the trial judge made no error in the WD analysis, but rather set out a “clear, thorough, well-structured and logical” credibility assessment [para 17].