Accused failed to meet requirements for admission of fresh evidence

Fresh evidence

Accused failed to meet requirements for admission of fresh evidence

Accused was convicted of two counts each of sexual interference and invitation to sexual touching and one count each of sexual exploitation, sexual assault (stayed via Kienapple), and possession of child pornography. Convictions related to accused’s step-granddaughter. Accused appealed his convictions and on appeal sought to adduce fresh expert evidence in relation to colour of his pubic hair, indicating that it was brown and had not been dyed. Application dismissed. Accused failed to meet requirements for admission of fresh evidence. Evidence could have been adduced at trial with due diligence, it did not bear upon decisive or potentially decisive issue at trial, and although it was credible, taken with other evidence, it could not reasonably be expected to have affected result. Although complainant’s evidence concerning colour of accused’s pubic hair was inconsistent, trial judge acknowledged and addressed that inconsistency, and there was ample evidence to support accused’s convictions.
R. v. F. (A.) (Apr. 12, 2016, Ont. C.A., K. Feldman J.A., E.E. Gillese J.A., and Grant Huscroft J.A., CA C58002) 129 W.C.B. (2d) 647.