R. v. HANRAHAN, 2024 NLCA 9, MARCH 7, 2024.

FACTS: The accused was charged with the offence of sexual assault.  He elected to be tried by a judge and jury.  Two witnesses testified: the complainant and the accused.  In addition, the Crown introduced through the complainant text messages between the accused and the complainant that were sent after the alleged offence.  The trial judge limited the Crown’s questioning concerning the text messages and allowed the accused to cross-examine the complainant on prior sexual activity between her and the accused.  One of the messages from the accused included the following statement:

I penetrated you and I stopped before you woke up, it doesn’t make it any better at all, but I know what I was doing was wrong and didn’t continue. I am so sorry.

The accused was acquitted.  The Crown appealed from acquittal.  The Court of Appeal described the issues raised as being the following (at paragraph 11):

1. Did the judge err in law by improperly restricting Crown counsel’s examination of the complainant about the text messages?

2. Did the trial judge err in law in relation to the prior sexual history evidence by:

a) Finding an inconsistency, which rendered evidence of prior sexual history capable of being admissible;

b) Admitting evidence of prior sexual history to address the inconsistency; or

c) Refusing to allow Crown counsel to re-examine the complainant following her questioning by defence counsel about the prior sexual history?

HELD:  The appeal was dismissed.  A majority of the Court of Appeal concluded as follows (at paragraphs 102 and 103):

With respect to the first issue, I would not find that the judge improperly intervened in Crown counsel’s examination of the complainant on the text messages. I would find that his interventions and his prohibition on having the complainant read her prior consistent statements to the jury to be within the reasonable exercise of his trial management power. Additionally, I am satisfied that the judge understood, and communicated to the jury, the permissible ways in which the text messages could be used. Although I would find that he placed unnecessary restrictions on the use of the text messages, I would not find that they could reasonably be viewed as having had a material bearing on the acquittal.

With respect to the second issue, I would not find error with the judge’s finding of an inconsistency between the complainant’s evidence on cross-examination and her prior statement to the police. Nor would I find his decision to admit the prior sexual history evidence to be in error. The trial judge found that the complainant gave inconsistent descriptions of the nature of her prior relationship with the accused, and because of this inconsistency, he found that evidence of the prior sexual nature of the relationship was relevant. In so doing, he conducted an appropriate balancing of the factors relevant to the probative value and the prejudicial effect of the evidence in coming to his decision. Finally, because the complainant had the opportunity to explain the apparent inconsistency on cross-examination, and did so clearly, I would find no error in the judge’s decision to refuse re-examination by Crown counsel on the prior sexual history evidence.

Did the judge err when he restricted Crown counsel’s examination of the complainant on the text messages?

The Court of Appeal indicted that “the judge placed restrictions on the text message exhibit during direct examination of the complainant in excess of what was necessary to prevent the jury from improperly using the texts” (at paragraph 46).  However, it held that these restriction could not “reasonably be viewed as having had a material bearing on the acquittal” (at paragraph 50).

Did the judge err at the threshold stage of s. 276 because he found an inconsistency?

During the cross-examination of the complainant the following exchange occurred:

Q. So you weren’t acquaintances, you trusted him. You thought he was a good person, right?

A. I ran in to him when I needed to have a rant. Before that, this was the closest encounter we had had. Before that it was strictly quick drives.

Based upon this evidence, the trial judge concluded that this was such a significant inconsistency that the accused should be granted leave to cross-examine the complainant on her prior sexual activity with the accused.

The Court of Appeal indicated that “[i]f evidence of sexual activity is proffered for its non-sexual features, such as to show a prior inconsistent statement, it may be permitted…I would find no error by the judge in finding that the prior sexual history evidence was capable of being admissible under s. 276(2) at the Stage One inquiry” (at paragraphs 68 and 69).

Did the judge err by admitting the prior sexual history evidence?

The Court of Appeal indicated that “[o]verall, the judge considered all the s. 276(3) factors, he assessed their importance in the case, and he found that the evidence had significant probative value that was not substantially outweighed by the danger of prejudice to the proper administration of justice. I would not find his decision to admit the prior sexual history evidence to be in error” (at paragraph 85).

Did the judge err by refusing to allow Crown counsel to question the complainant about the inconsistency on re-examination?

The Court of Appeal indicated that the trial judge “found re-examination was not necessary because the complainant had answered the question about the inconsistency and her answer was clear. He found that there was nothing further for the complainant to explain or clarify…I would not find that the judge erred in this finding. The complainant was asked the question twice by defence counsel and her answers were coherent. She clarified that on cross-examination she had been referring to the period after she and Mr. Hanrahan had been good friends, not their entire time of knowing each other” (at paragraphs 97 and 98).