ST. JOHN'S, N.L. — Warning: Graphic content in this story might disturb some readers.
The Court of Appeal of Newfoundland and Labrador has dismissed the case of a child sex offender who argued for his conviction to be overturned on the grounds that his trial judge misunderstood the evidence.
The man argued that the judge, in convicting him of sexual assault, invitation to sexual touching and sexual interference against a child, had described the girl as having a vaginal injury, when the evidence indicated the injury was in a different part of her genital area.
The man, who cannot be named by order of the court, was tried and sentenced as a youth, since he was less than 18 years old when he sexually assaulted the girl, who was less than 10 years old. The assaults happened almost 20 years ago. He was convicted last month and sentenced to eight months in prison followed by four months of supervision and nine months of probation.
During his trial, the court heard he and the girl had lived in the same neighbourhood. The woman testified he had sexually assaulted her when she was a child at least 20 times, mainly in the basement laundry room of his home, and had attempted intercourse at least once. When she began to bleed in one instance, he suggested she tell her parents that she had fallen off her bike, which she did. Her parents took her to the hospital.
A doctor also took the stand, confirming the girl had been seen at the hospital in June 2002 for bleeding in her genital area. She was found to have a hematoma on her perineum and blood on her vulva, he said.
The complainant testified that a family member found inappropriate messages from the offender on a computer and alerted her father, who went to the offender's home and confronted his family. The messages included images of the offender exposing himself, the complainant told the court, and he had warned her not to tell anyone about them.
The complainant said the assaults stopped after one of the families moved from the neighbourhood. She said she later received two apologies from the offender through Facebook.
A member of the girl's family — who had also been a young child at the time of the assaults — cried as he told the court he had once walked into a hidden area of the laundry room at the offender's house and saw him sitting over the girl. The offender angrily told him to get out and he did, he said, adding he felt bad for not protecting the girl.
The offender denied any sexual contact with the girl, saying it never happened. He denied having any knowledge of any computer messages or any confrontation by the girl's father. He said he believed the Facebook apologies were written by his ex-girlfriend, who had access to his Facebook account.
The man's aunt told the court the girl had been "an obnoxious child who was constantly bugging people." She said she had known "bits and pieces" about the girl's father "freaking out," but that the families' relationship had not changed as a result.
The trial judge deemed the complainant and other Crown witnesses as credible, while saying the man and his aunt were not. She rejected the evidence that the man had no opportunity to assault the girl, saying she did not believe that he, as a teen, had never been alone in his home. Her biggest concern, she said, was with their apparent lack of knowledge of the inappropriate messages, even though a child-luring investigation had been opened by police at the time.
In his appeal, the man argued the judge had no basis on which to conclude that he and his aunt knew more than they were letting on. He also said the judge's reference to the girl's injuries as being "vaginal" and not perineal showed she had misunderstood the evidence.
A panel of court of appeal judges disagreed.
"A judge is entitled to disbelieve a witness’s evidence and to say so," wrote Justice Lois Hoegg in dismissing the man's appeal. Two other judges concurred.
"It is not misapprehension of evidence to disbelieve a witness’s evidence. When the judge considered their evidence in the context of the evidence as a whole, she did not find it credible and she did not accept it. Her credibility assessments and her application of the principle of reasonable doubt were in accordance with established law."
When it came to the girl's injuries, Hoegg said the exact location of them in the child's genital area didn't matter, since it was consistent with sexual abuse either way. The judge's description of the injury as vaginal, which is the term most often used in sexual assault cases, does not imply the judge had misunderstood, Hoegg said.
"Moreover, even if it could be said that the judge misapprehended (the doctor's) evidence, which she did not do, it would not likely have affected her reasoning or the result, given the abundance of other evidence – like the judge’s acceptance of the complainant’s evidence, the testimony of the complainant’s (family member), and the Facebook apology supporting the convictions."
