Heather Cross

The plaintiffs brought an action against their neighbour for private nuisance, trespass, and mental distress arising from over five years of egregious conduct, including noise, odours, trespassing, and the discharge of firearms.

The defendant was noted in default and the matter proceeded as an uncontested trial.

The court found the defendant liable for substantial and unreasonable interference with the plaintiffs' use and enjoyment of their property.

The court awarded a total of $520,000 in damages, including $100,000 in punitive damages, and granted a permanent injunction restricting the defendant and his guests from continuing the nuisance and trespassing.

The Crown appealed a Court of Appeal decision that had set aside a jury's convictions of the respondent for indecent assault and gross indecency on the ground that the verdict was unreasonable.

The sole issue was whether inconsistencies in the complainant's testimony — as between his police statement, preliminary inquiry evidence, and trial evidence — were so significant that a conviction based on his evidence was unreasonable as a matter of law.

The majority held that the inconsistencies, while troubling, did not render the jury's verdict unreasonable, as the complainant offered an explanation (that counselling had improved his memory) and the jury was entitled to accept it after thorough cross-examination and a comprehensive, unchallenged jury charge.

The majority further held that the Crown was not required to adduce further evidence or expert evidence regarding the role of counselling in refining memory.

The convictions were restored; Brown and Rowe JJ. dissented, substantially for the reasons of Justice White below.