Her Majesty the Queen v. Angus Frederick Waterman
(N.L.) (Criminal) (As of Right)
Criminal law - Appeals, Unreasonable verdict - Criminal law - Appeals - Unreasonable verdict - Inconsistencies in complainant’s evidence - Whether the majority of the Newfoundland and Labrador Court of Appeal erred in law in allowing the appeal, setting aside the conviction and entering an acquittal on all charges by substituting their findings of credibility for those of the jury and concluding that the verdict was unreasonable - Whether the majority of the Newfoundland and Labrador Court of Appeal erred in law in their interpretation and application of this Court’s decision in R. v. W.H.,  2 S.C.R. 180 - Whether the majority of the Newfoundland and Labrador Court of Appeal erred in law in raising a new issue on the appeal and without notification to the parties or the opportunity to respond.
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(PUBLICATION BAN IN CASE)
The respondent, Angus Frederick Waterman, was found guilty by a jury of indecent assault and gross indecency against a male child contrary to ss. 156 and 157 of the Criminal Code in force at the time of the offences (currently ss. 151 and 152). The offences involved 5 incidents which occurred from about 1977 to 1981, when the complainant was between 9 and 13 years of age. Mr. Waterman appealed his convictions on the basis that the verdicts were unreasonable and unsupported by the evidence. Welsh and White JJ.A. allowed the appeal, set aside the convictions and entered acquittals on all charges. Welsh J.A. found that a properly instructed jury acting judicially could not reasonably have rendered a verdict of guilty beyond a reasonable doubt. Given the nature and the extent of the inconsistencies in the complainant’s evidence, and the manner in which the complainant recovered the memory by relying on counselling, it could not be said that the jury had the necessary tools to reasonably resolve such doubt as may have been created by the inconsistencies. The circumstances in this case called for expert evidence: however, the Crown did not adduce expert evidence to assist the jury in assessing the possible effect of counselling on the complainant’s explanation for the numerous and substantial changes in his story. White J.A. was of the view that the jury’s conclusion could not be supported on any reasonable view of the evidence, as it contained multiple and significant inconsistencies. The verdict was unreasonable because it could not be supported on the evidence. Butler J.A., dissenting, would have dismissed the appeal and confirmed the convictions entered at trial. In her view, while the majority correctly identified the test applicable to appellate review of a jury’s verdict of guilt, it failed, in the application of the test, to be deferential to the collective good judgment and common sense of the jury. The majority’s approach was contrary to the principles expressed in R. v. Biniaris, 2000 SCC 15,  1 S.C.R. 381, and R. v. W.H., 2013 SCC 22,  2 S.C.R. 180: these decisions caution an appellate court not to act as a thirteenth juror or to accede to a vague unease, or a lingering or lurking doubt based on their own review of the evidence. Butler J.A. also disagreed with Welsh J.A.’s suggestion that without expert evidence to assist, assessment of the complainant’s explanation for the inconsistencies was not within the experience or common sense of the jury: this position was not argued and would warrant comprehensive submissions. She also disagreed with White J.A.’s suggestion that in order to convict, the jury would require additional evidence for the complainant’s explanation for the inconsistencies in his evidence.
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