Detailed recollection does not indicate fabrication: ONCA
Just because a witness can give a detailed description of the place where an alleged crime happened, does not mean that the evidence is fabricated to buttress their credibility, said the Court of Appeal for Ontario.
R. v. A.K., 2020 ONCA 435 involved charges of sexual assault. The complainant K.H. alleged that the appellant A.K., her half-brother, touched her inappropriately in two separate incidents occurring in 2008 or 2009. The complainant testified that the first incident happened at her mother’s residence, while the second occurred at their father’s place. The complainant also spoke of a third incident in which the appellant approached her while she was playing with her Barbie dolls, asked her whether the dolls were having sex, then placed the dolls in a sexually suggestive position after she said no.
The appellant denied the alleged assaults, as well as the Barbie doll incident, stating that he “wouldn’t have been there” or that these incidents “would never have happened.” He said that he was neither interested in playing with dolls or talking to his half-sister about dolls, given that their relationship was distant due to their age gap and their infrequent interactions.
In 2018, Justice Lynda Ross of the Ontario Court of Justice rejected the appellant’s testimony and credibility and found him guilty of both charges of sexual assault.
Upon appeal, the Ontario Court of Appeal set aside the findings of guilt and ordered a new trial. The appeal court disagreed with the four reasons cited by the trial judge in her assessment of the appellant’s credibility.
First, the trial judge said that the qualified or conditional nature of some of the appellant’s answers affected his credibility. The appeal court said that the appellant’s phraseology did not give any insight into whether he was credible or not. Because the incidents had occurred more than a decade ago, it was understandable that the appellant, in an attempt to be honest about events he might not consider memorable, refrained from speaking in definitive terms, said the appeal court.
Second, the trial judge said that the appellant kept trying to distance himself from the complainant by repeatedly emphasizing the “kind of distant” nature of their relationship. The appeal court, however, disagreed with the characterization of this part of the appellant’s testimony as a “repeated emphasis.” Moreover, the complainant likewise described their relationship as distant and almost non-existent.
Third, the trial judge called attention to the appellant’s absolute denial of the Barbie doll incident. The appeal court, on the other hand, said that the appellant’s unqualified rejection of the incident was not indicative of lack of credibility considering the distant relationship between the two and their rare meetings.
Fourth, the trial judge called the appellant’s detailed recollection of his father’s residence “absolutely unbelievable” given that some 10 years had passed since then. The appeal court said that, while the appellant and the complainant disagreed about the number of recliners present in the room, they gave similar descriptions of the house and its furnishings apart from that small discrepancy. Just because the appellant had described the place in detail, this did not mean that he had fabricated evidence just to appear more credible, said the appeal court.
