R. V. W.(D.) - Background

Background

D. W., a 42 year old man, was charged with sexually assaulting a 16 year old girl, T. W., on two occasions while driving her to her boyfriend's house. T.W. was staying at D.W. house at the time.

Besides her claim of the event, there was little circumstantial evidence. Her panties had semen stains from a Type A secretor, which included D. W., but also 30% population. The secretor type of the boyfriend was never known.

At trial before a judge and jury the defence argued that she was not credible. She was unemployed, illiterate, and a dropout, and had been kicked out of several houses including D. W.'s house. The testimony of D.W. was poor, but its uncertain whether it was due to lack of intelligence or deception.

At the end of the trial the judge issued its charge to the jury without mention of any issue of credibility. Less than ten minutes later the Crown made a request for a recharge to bring this issue up. Counsel for the Crown requested the recharge in order for the judge to explain what evidence may assist the jury in making a finding on the issue of credibility.

During the recharge, the judge charged to the jury that:

If in fact you believe the accused then clearly nothing took place and in fact the Crown will have failed to prove beyond a reasonable doubt that he is guilty as charged. On the other hand if you in fact believe the complainant totally, then he is guilty as charged.

On these instructions the jury returned a guilty verdict.

The issue of the appeal was whether "the erroneous recharge, viewed in the context of the charge as a whole and the short time that elapsed between the main charge and the recharge, could be said to have left the jury with any doubt that if they had a reasonable doubt they must acquit."

The judge erred in the short recharge in that he characterized the core issue to be determined by the jury as to whether they believed the complainant or whether they believed the appellant. The counsel for the appellant objected to the recharge, but the trial judge's response was that he did not feel that he left the jury with the impression that they must accept the appellant's evidence in order to acquit him. Thus, the appeal to the Court of Appeal was initially dismissed.