R. v. Awer (N.), 2016 ABCA 128

• Judge: Berger, Watson and Schutz, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: May 09, 2016
• Citations: 2016 ABCA 128;[2016] A.R. TBEd. MY.025

R. v. Awer (N.), [2016] A.R. TBEd. MY.025

MLB being edited

Currently being edited for A.R. - judgment temporarily in rough form.

Temp. Cite: [2016] A.R. TBEd. MY.025

Her Majesty the Queen (respondent) v. Nihal Awer (appellant)

(1403-0321-A; 2016 ABCA 128)

Indexed As: R. v. Awer (N.)

Alberta Court of Appeal

Berger, Watson and Schutz, JJ.A.

May 9, 2016.

Summary:

A woman attended a party at the accused's apartment with six males, including the accused. She was drugged and sexually assaulted while she was unconscious. DNA on the woman's body and clothes did not come from the accused. However, a swab of the accused's penis revealed the presence of the woman's DNA. The Crown's expert's testimony was that the amount of the DNA on the accused's penis led him to opine that it came from contact with a wet source of DNA such as the woman's saliva or vaginal secretions and not indirect transfer. The accused's expert opined that the DNA data could not reliably support the inference that the accused's penis made contact with the woman's body as opposed to some mode of indirect transfer. The trial judge, for stated reasons, preferred the evidence of the Crown's expert and, based on this and all of the other circumstantial evidence, convicted the accused of sexual assault. The accused appealed on the grounds that the trial judge erred in assessing the competing expert evidence and failed to consider alternative inferences inconsistent with guilt.

The Alberta Court of Appeal, Berger, J.A., dissenting, dismissed the appeal. There was no error in accepting the evidence of the Crown's expert and finding the evidence of the accused's expert of limited weight. The trial judge did not err in finding that the only rational inference that could be drawn from the circumstantial evidence was that the woman's DNA found on the accused's penis came from him having direct contact with the woman's body rather than some speculative indirect source.

Criminal Law - Topic 4352.2

Procedure - Charge or directions - Jury or judge alone - Scientific evidence (incl. DNA evidence) - [See second Evidence - Topic 7002 ].

Evidence - Topic 7002

Opinion evidence - Expert evidence - General - Acceptance, rejection and weight to be given to expert opinion - The Alberta Court of Appeal stated that "Trial judges enjoy wide discretion when engaged in their role of weighing the costs and benefits of admitting expert evidence. ... The probative value of an expert's evidence is to be assessed in the same manner as any other witness's evidence ... The weight to be given an expert's opinion is within the discretion of the trier of fact and deference is owed on appeal. ... The weight given to an expert's opinion will depend not only on the expert's training and experience, but also on the expert's ability to explain and provide a rationale for the opinion, on the expert's familiarity with the facts of the case, and on the perceived independence of the expert" - See paragraphs 24, 25, 71.

Evidence - Topic 7002

Opinion evidence - Expert evidence - General - Acceptance, rejection and weight to be given to expert opinion - A woman attended a party at the accused's apartment with six males, including the accused - She was drugged and sexually assaulted while she was unconscious - DNA on the woman's body and clothes did not come from the accused - However, a swab of the accused's penis revealed the presence of the woman's DNA - The Crown's expert testified that the amount of the DNA on the accused's penis led him to opine that it came from contact with a wet source of DNA such as the woman's saliva or vaginal secretions - He testified that he had "not seen a dry stain transfer that amount of DNA" - The accused's expert opined that the DNA data could not reliably support the inference that the accused's penis made contact with the woman's body as opposed to some mode of indirect transfer - The trial judge, for stated reasons, preferred the evidence of the Crown's expert and, based on this and all of the other circumstantial evidence, convicted the accused of sexual assault - The accused appealed on the ground that the trial judge erred in assessing the competing expert evidence - The accused argued that the opinion was inadmissible anecdotal evidence - The Alberta Court of Appeal held that the "statement that he had not seen a dry stain transfer that total amount of DNA was factual evidence regarding his professional experience within the scope of his expertise" - The trial judge did not err in admitting the evidence or in weighing it - The evidence as to how the woman's DNA came to be on the accused's penis was both logically and legally relevant - See paragraphs 28 to 61.

Evidence - Topic 7014

Opinion evidence - Expert evidence - General - Textbooks, treatises and literature - The Alberta Court of Appeal stated that "Secondary sources of information such as books and articles are technically hearsay when they are relied on by an expert witness as providing accurate information. Sources such as these can be admitted the show the basis of the expert's opinion, but are generally not admissible as evidence for the proof of their contents ... Given the prejudicial effect of this type of material, the trial judge should instruct the trier of fact regarding the limited value of such unsworn and unproven materials ...There are some exceptions to this general rule. Where the secondary information is widely used and acknowledged as reliable by experts in the field, it is considered sufficiently trustworthy to safely eliminate hearsay concerns and can be assessed in the same manner as other direct and admissible evidence ... Otherwise, it is not open to trial judges to rely on expert literature 'unless it has been accepted after being properly introduced and tested in evidence' ... The expert can refer to and quote from texts and literature while testifying, but unless he expressly adopts the opinions contained in those authorities as his own they cannot become evidence for the trier of fact to consider ... If the expert acknowledges the authority of the work and adopts the opinion of the author, it becomes part of the expert's own evidence and she or he may be cross-examined on it" - See paragraphs 62 to 64.

Evidence - Topic 7018

Opinion evidence - Expert evidence - Special knowledge and experience - What constitutes - [See second Evidence - Topic 7002 ].

Practice - Topic 8813

Appeals - General principles - Duty of appellate court respecting findings based on professional opinion - [See first Evidence - Topic 7002 ].

Counsel:

T.L. Couillard, for the respondent;

N.J. Whitling, for the appellant.

This appeal was heard on November 5, 2015, before Berger, Watson and Schutz, JJ.A., of the Alberta Court of Appeal.

On May 9, 2016, the judgment of the Court of Appeal was delivered and the following memorandums of judgment were filed:

Watson and Schutz, JJ.A. - see paragraphs 1 to 88;

Berger, J.A., dissenting - see paragraphs 89 to 132.