Her Majesty the Queen v. Mark Anthony Smith

(British Columbia) (Criminal) (As of Right)

(Publication ban in case)


Criminal law - Evidence - Criminal law - Evidence - Misapprehension of evidence - Witnesses - Credibility - Prior consistent statements - Prior inconsistent statements - Whether the majority of the British Columbia Court of Appeal erred in law in finding that the trial judge misapprehended the evidence.


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At trial, the respondent was found guilty of sexually assaulting the complainant, a woman he had just met at a party. A voir dire was held to admit statements made by the complainant to her friend immediately following the alleged assault. The Crown sought to admit the statements as prior consistent statements to rebut a notion of recent fabrication, and the defence sought to admit them as prior inconsistent statements for the purpose of impugning the complainant’s credibility. The trial judge did not expressly rule on the admissibility of the statements, nor did she explicitly comment on whether they were consistent or inconsistent with the complainant’s testimony. Ultimately, she found the complainant to be credible and reliable, and did not believe the respondent’s account that the intercourse was consensual.

A majority of the Court of Appeal allowed the respondent’s appeal and ordered a new trial on the basis that the trial judge misapprehended the evidence in failing to address inconsistencies in the witnesses’ accounts. The majority also found that the trial judge’s failure to rule on the admissibility of the complainant’s prior statements, and, if admitted, to consider whether they were consistent or inconsistent with her testimony, was a misapprehension of the evidence. Dickson J.A., in dissent, would have dismissed the appeal. She would not have interfered with the trial judge’s assessment of the complainant’s credibility and reliability on the basis that the judge failed to rule on the admissibility of the voir dire evidence, or that she impermissibly relied on the complainant’s prior statements in assessing her credibility.