The accused was charged with numerous sexual offences against nine people over a 39-year period, including his four daughters, an ex-wife, two other relatives, a babysitter, and a family friend. At the time of the offences, some of the complainants were very young children, including one two-year-old. He was also charged with bestiality in connection with the attacks on two dogs. The trial judge denied the defence counsel’s request to sever two counts of bestiality at the start of the trial, citing the delay in bringing the request and his belief that the bestiality allegations would not inflame the jury any more than the allegations of abuse of the accused’s children.
The defence theory was that the complainants had either intentionally conspired against the accused or unconsciously influenced each other’s recollection of events. The defence counsel hoped to use the complainants’ phone records to prove their collaboration. The defence counsel’s request for the production of the complainants’ phone records was denied. The defence wanted to bring in a memory expert, such as a psychologist. The trial judge qualified her as an expert but excluded her testimony on the grounds that it was calculated to confuse the jury into believing that no one could have a memory of a 20- or 30-year-old event; the case was not complicated and lay persons deal with the assessment of memories every day; because there is a debate among experts about how memories work, a great deal of time would be expended on cross-examination and the Crown having to call its own expert; and the jury.
The accused was convicted on 33 of the 49 counts. He appealed. The trial judge erred by failing to adequately instruct the jury on how to apply the evidence from the various counts. When evidence from one count is inadmissible as similar fact evidence on other counts, jurors must be instructed to consider each charge separately and not to use evidence from one count as evidence on any other counts. The jury was correctly instructed in the charge to reach a verdict on each count separately. The trial judge, however, failed to inform the jury that they could not consider evidence on one count in reaching a verdict on another. The Crown’s address to the jury, in which they were invited to consider the effect of the evidence as a whole as proof of the allegations and which highlighted the consistency in the complainant’s evidence, exacerbated this failure.
The expert’s evidence did not explain how she tested her hypothesis, and her conclusions appeared to be based on anecdotal evidence. Furthermore, the portions of her proposed evidence that were merely a general discussion about the memory process unrelated to any specific problems, in this case, were properly excluded on the basis of relevance. Such evidence would not have helped the jury understand the Crown witnesses’ testimony.
The conviction was appealed.