Updated: Dec 20, 2020
J.M. is appealing his conviction of sexual assault and failing to comply with a youth court order. J.M. (the appellant) was 16 years old at the time of the incident, and the complainant was 15 years old. There is no dispute that the complainant went to J.M.’s house, that alcohol was consumed, that there was vaginal intercourse with the complainant while his brother placed his penis in her mouth, and they switched positions. The sole issue in this case is whether there was consent in regard to the sexual activity; the trial judge found that there was no consent.
The Appellant appeals:
(I) The judge misapprehended four points of evidence.
There was no misapprehension of evidence, with one exception. The appellant argued that a text message that read, “Shouldn’t have tried it the second time but I stopped when you told me to.” The trial judge drew an inference from the evidence—this message indicating that the appellant acknowledged he should not have tried it a second time, shows that the appellant acknowledged he did not have consent.
The appellant takes issue with what he calls the trial judge’s speculation when he suggests that the complainant may have reasonably thought that screaming for help or telling the appellant's mother that her sons had just raped her would endanger her. This is not speculation, there was evidence that there was a concern for the mother's anger. This had no relevance to whether the complainant was sexually assaulted.
The appellant argued that the trial judge speculated why the appellant sent a text to the complainant shortly after suggesting that his brother had not been involved with any sexual activity, stating that he only remembered after that his brother was involved. The trial judge rejected this explanation.
(ii) The trial judge applied uneven scrutiny to the Crown and defence evidence
The trial judge engaged in a “proper individualized assessment of the different evidence offered by the different witnesses.”
(iii) The Trial judge’s credibility assessments
Credibility assessments are owed respect by the judges by which they are made. The trial judge is at liberty to acknowledge and reject any evidence he hears.