R. v. H.A., 2006 YKCA 7

• Judge: Newbury, Hall and MacKenzie, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: June 16, 2006
• Jurisdiction: Yukon
• Citations: 2006 YKCA 7;(2006), 228 B.C.A.C. 33 (YukCA)

R. v. H.A. (2006), 228 B.C.A.C. 33 (YukCA);

    376 W.A.C. 33

MLB headnote and full text

Temp. Cite: [2006] B.C.A.C. TBEd. JN.036

Regina (respondent) v. H.A. (appellant)

(CA05-YU542; CA05-YU547; 2006 YKCA 7)

Indexed As: R. v. H.A.

Yukon Court of Appeal

Newbury, Hall and MacKenzie, JJ.A.

June 16, 2006.

Summary:

The accused was convicted of three counts of indecent assault and sentenced to a 15 month conditional sentence. The accused appealed against conviction. The Crown cross-appealed against sentence.

The Yukon Court of Appeal allowed the conviction appeal and ordered a new trial. It was accordingly unnecessary to decide the sentence appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 4300

Procedure - Trial judge - Duties and functions of - Respecting credibility of witnesses (incl. accused) - The accused was convicted of three counts of indecent assault against his stepdaughter and her friend in the 1970's - The Yukon Court of Appeal allowed the accused's appeal and ordered a new trial - The trial judge made an unfavourable credibility finding against the accused - Although the judge's credibility finding was entitled to deference, the adverse credibility finding was based on a demonstrably flawed analysis of the evidence - The judge misapprehended evidence relied on to support his adverse credibility finding - The judge inexplicably relied on the accused's blanket denial of one incident as detracting from his credibility - Although the judge was entitled to disbelieve the accused and believe the complainants, he could not do so on the basis of a flawed premise.

Practice - Topic 8820

Appeals - General principles - Duty of appellate court re findings of credibility by trial judge - [See Criminal Law - Topic 4300 ].

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 11].

R. v. Tucker (W.C.) (1992), 120 A.R. 393; 8 W.A.C. 393 (C.A.), refd to. [para. 20].

R. v. Gagnon (L.) (2006), 347 N.R. 355; 2006 SCC 17, refd to. [para. 22].

Counsel:

B.A. Beresh, Q.C., for the appellant;

P.I. Chisholm, for the respondent.

This appeal and cross-appeal were heard on May 15, 2006, at Vancouver, B.C., before Newbury, Hall and Mackenzie, JJ.A., of the Yukon Court of Appeal.

On June 16, 2006, Hall, J.A., delivered the following judgment for the Court of Appeal.