Judge gave too much credence to alleged assault victim: appeal court

Manitoba’s highest court has acquitted a Flin Flon man convicted of robbery and aggravated assault after ruling the trial judge relied too heavily on the evidence of the only witness to testify — the alleged victim.

“While it is not impossible to convict an accused based on the evidence of a single eyewitness, the law is replete with cautionary warnings regarding the frailties of eyewitness identification evidence and the dangers of conflating the distinction between the credibility of a witness and the reliability of their evidence,” Court of Appeal of Manitoba Justice Diana Cameron wrote in a recently released decision.

The appeal court quashed the 23-year-old man’s convictions and did not order a new trial, ruling “no reasonable trier of fact could have convicted based on the record before this court,” Cameron said.

The alleged victim testified he had met the accused only once, at the home of his then-girlfriend’s aunt, who had invited them over for dinner.

The man testified he had gone out for a walk with his girlfriend’s cousin and the accused sometime after midnight, at which time the cousin broke a window. The man said when they returned to the aunt’s yard, the accused hit him in the head with a steel object and demanded his money.

The man said he complied, and once inside the house was assaulted a second time by the accused and the cousin, who threatened him not to disclose what had happened. After agreeing not to tell anyone, the man went to hospital where he was treated for a concussion and cuts to his head.

The accused man’s trial was held last April, 18 months after the alleged assault. During his testimony, the alleged victim, “unprompted,” pointed to the accused in the prisoner’s box and identified him as the man who had assaulted him.

The accused argued on appeal that the alleged victim’s uncorroborated identification was insufficient to prove his guilt beyond a reasonable doubt, citing the “frailties” of eyewitness identification and risk of wrongful convictions.

The trial judge said the alleged victim — who told court he spent several hours with the accused that night — testified “in a straightforward consistent manner,” was “unchallenged on cross-examination,” and “candidly” admitted to drinking five or six beers prior to the assault.

Cameron said court was provided no evidence aside from the alleged victim’s testimony as to how long he was in the accused’s company, and no evidence from police detailing how they came to believe the accused was responsible for assaulting the victim.

“None of the persons who were at the aunt’s residence on the evening in question were called to confirm (the accused’s) presence,” Cameron said. “Despite the (alleged victim) choosing not to proceed against the cousin, the cousin did not testify.”

Cameron said the sentencing judge “fell into the classic error of conflating the credibility and certainty of (the alleged victim) with the accuracy of his identification.”

“The conclusion she reached was one that no jury reasonably instructed could have arrived at and is thus unreasonable,” she said.

dean.pritchard@freepress.mb.ca