Credibility & Sexual Assault - R v Achuil

R v Achuil, 2019 ABCA 3299

Mr. Deng Majak Achuil was convicted at trial of sexual assault by a judge alone. Mr. Achuil appealed his conviction on June 13, 2019 and the Alberta Court of Appeal rendered judgment on August 9, 2019 dismissing the appeal.

Facts

The appellant, Mr. Achuil, appealed his conviction of sexual assault on the basis that the trial judge erred applying Regina and W.(D.) as well as erred in dismissing his defence of honest but mistaken belief that consent was received.

Mr. Achuil was alleged to have sexually assaulted the complainant, KP (age 17), at a party. The complainant expressed she did not want to engage in sexual intercourse and that she was on her period. Mr. Achuil’s friend, Reiko, began sexually assaulting KP first.

The stories of the complainant and the appellant diverge at this point.

The complainant testified that Mr. Achuil sexually assaulted her on a couch while she resisted and the appellant’s friend, Reiko, attempted to put his penis in her mouth. She stated Mr. Achuil ended assaulting her by ejaculating on her thigh.

Mr. Achuil, who was 21 years of age at the time of the offence, testified that he laid on the couch with the complainant at which point she engaged sexual interaction by grabbing his penis. They had sexual intercourse and ended by him ejaculating on her thigh. KP denied having initiated the contact.

The trial judge found the complainant did not consent and that based on Mr. Achuil’s own evidence, the defence of honest but mistaken belief in consent was not applicable. The trial judge did not decide which version of events he accepted.

Issues for the Court

  1. Was the defence of honest but mistaken belief in consent applicable to the case at bar?
  2. Was the W.(D.) framework applicable in the case at bar?

Alberta Court of Appeal Decision – Martin J.A. (Paperny J.A. concurring)

Mr. Achuil’s appeal to the Alberta Court of Appeal was dismissed. Justice Martin wrote the court’s decision and held that the defence of honest but mistaken belief in consent requires the accused to have “an honest but mistaken belief that the complainant actually communicated consent, whether by words or conduct”. This defence also requires that the accused have taken objectively reasonable steps based on the circumstances to determine if consent was given. 

The same Justice Martin in Regina and Ryon now here revised the second prong of W.(D.) and proposed that the jury charge be revised and say something to the effect that if the jury believes the exculpatory evidence or if they do not fully accept the Crown’s version, then they are to acquit the accused. Since Ryon, Regina and Matthews ruled the phrase “not confident they can accept the crown’s version of events” was not a legitimate legal standard and would be an error in a jury charge.

The court now suggests to follow the wording in Regina and Gray that reads, “if the accused’s evidence denying complicity or guilt (or any other exculpatory evidence to that effect) is believed, or even if not believed still leaves the jury with a reasonable doubt that it may be true, then the jury is required to acquit (again subject to defences with additional elements such as an objective component”. 

Mistaken Belief in Consent:

Justice Martin held that the trial judge was correct in his finding that KP did not consent. It would not make sense for the complainant to have denied consent with Mr. Achuil’s friends, have been sexually assaulted by Reiko, and then subsequently agreed to engage in intercourse with Mr. Achuil, who was a stranger to her. 

Mr. Achuil was faced with various circumstances that ought to have alerted him to take reasonable steps to confirm consent was indeed given. Such circumstances include the fact that the parties were strangers to one another; Mr. Achuil did not know anything about her having never met each other until the night in question. Mr. Achuil testified that he did not know if she was asleep, yet he states she moved her buttocks to his penis and grabbed his penis. Mr. Achuil testified no words were spoken prior to the intercourse and the room was full of people at the time.

The trial judge concluded, “a reasonable person aware of the same circumstances would have taken further steps before proceeding with sexual intercourse with a complete stranger. By his own admission, the accused took no steps… He simply assumed there was consent even though he did not know whether the complainant was asleep or awake” and the court upon appeal saw no reviewable error with such conclusion. 

W.(D.):

The court held that W.(D.) does in not apply to Mr. Achuil’s case. Despite the fact that the parties’ versions of events differ, Mr. Achuil was convicted on the basis of his own account as his evidence/testimony established his own guilt beyond a reasonable doubt. 

Justice Slatter agreed the appeal should be dismissed but wished to add some commentary. He stated, “it is not open to the trial judge to sit on the fence. Their primary task is to make findings of fact”. He went on to state that a trial judge also must give reasons that are sufficient for counsel and parties to have a foundation for appeal. 

Justice Slatter noted that there is a difference between summarizing evidence and actually making findings of fact to which the trial judge failed to do the latter. No findings of fact were ever made or adduced from the evidence. The closest suggestion the trial judge makes to credibility or reliability is by stating the complainant’s testimony was “entirely plausible”.

Justice Slatter further found that the trial judge thought W.(D.) was applicable yet did not make any determination as to whether Mr. Achuil’s evidence was true or raised a reasonable doubt. Justice Slatter critiqued the trial judge’s reasons for intertwining and confusing two separate lines of analysis. If this was a case of W.(D.), then all that was required was for the trial judge to state who was believed. The court went on to state that any hypothetical discussion of honest but mistaken belief would not be necessary if findings of fact were made and Mr. Achuil disbelieved.

Ultimately, Justice Slatter agreed with the result in the case, despite the confusing reasons in error. “Reading the reasons as a whole, it is clear that the trial judge found that the appellant’s narrative was so implausible as to lack any air of reality. That is sufficient compliance with the principles of W.(D.) and accordingly this appeal should be dismissed.” 

Commentary

Application for leave to appeal to the Supreme Court of Canada was filed on May 12, 2020.

I find the revised wording to be less clear than the previous wording that was found not to be an appropriate or legitimate legal standard. As this wording is to be put to a jury of laymen, it ought to be in the plainest language and commonsense wording possible so as to not bog down or confuse the jury’s minds as to their task. This new revision appears to revert to the old/original W.(D.) wording that was critiqued in Ryon for being counterintuitive to a jurors common sense. How is someone supposed to not believe something but then still be left in reasonable doubt that it may be true as opposed to stating one may disbelieve the accused’s version but still be left in doubt by the Crown’s version? That is easier to digest and comprehend for a juror in my view and this thus is a step back from the clarity and progress originally made in Ryon.