DATE: 20010202

DOCKET: C29625

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) –and– DWIGHT ARLINGTON LAM

(Appellant)

BEFORE: ROSENBERG, MOLDAVER and GOUDGE JJ.A.

COUNSEL: P. Andras Schreck, for the appellant

Tina Yuen, for the respondent

HEARD: January 30, 2001

RELEASED ORALLY: January 30, 2001

On appeal from his conviction by Justice George S. Ferguson, sitting with a jury, on January 29, 1998 and on appeal from the sentence imposed by Justice Ferguson on May 11, 1998.

E N D O R S E M E N T

[1] We are of the view that the trial judge misdirected the jury as to the use to be made of the prior consistent statements. Assuming the contents of those complaints were admissible at all, they could not be used to bolster the credibility of the complainant and the jury should have been so instructed. Rather, the jury was told that the statements could strengthen the witness’ credibility or reliability. There was no allegation of recent fabrication which these complaints could rebut.

[2] This is not a proper case to apply the proviso in s. 686(1)(b)(iii) of the Criminal Code. The jury obviously had concerns about the complainant’s credibility and the contents of the prior consistent statements relate to the allegation of digital penetration which, on the Crown’s argument, was the foundation for the conviction for sexual interference.

[3] We do not agree, however, that the verdicts were inconsistent. We are satisfied, as urged by the Crown and found by the trial judge, that the jury acquitted the appellant in relation to the sexual assault because they were not satisfied that the acts of intercourse were proved. It follows that the new trial on the charge of sexual interference must be restricted to the incidents of alleged digital penetration.

[4] Accordingly, the appeal is allowed and a new trial ordered on Count #2 of the indictment.

(signed) “M. Rosenberg J.A.”

(signed) “J. M. Moldaver J.A.”

(signed) “S. T. Goudge J.A.”