Hans John Kalina

The appellant appealed convictions for aggravated assault and assault with a weapon.

The Court of Appeal found that the trial judge erred in his credibility assessment by impermissibly using the absence of evidence of a motive to fabricate as proof of no motive, and by making blanket credibility findings without sufficient analysis of individual counts or conflicting evidence.

The court applied the curative proviso to one count (Count 6) but not others.

The appeal was allowed for four counts, with a new trial ordered for three and an acquittal entered for one.

The accused was charged with two counts of assault level one (section 266 of the Criminal Code) arising from alleged incidents on July 30, 2010 and between October 1 and November 30, 2008.

The victim was the accused's former wife.

The Crown proceeded summarily and the accused pleaded not guilty.

The trial involved testimony from the complainant, police officers, and the accused and his adoptive father.

The court applied the R. v. W.D. analysis and found the accused guilty on both counts based on the credibility of the complainant's evidence, corroborating photographic evidence of injuries consistent with bite marks, and the lack of credibility in the accused's categorical denials.