Teodora Pasca

The appellants, U.K. and R.P., appealed their convictions for sexual assault, arguing the trial judge erred in jury instructions regarding fabrication as post-offence conduct and the application of the W.(D.) principles.

The Court of Appeal found that the trial judge erred by instructing the jury on fabrication of trial evidence without independent evidence, and by providing a deficient fabrication instruction that failed to distinguish between disbelieved and fabricated evidence, explain independent evidence, or require consideration of alternative explanations.

Furthermore, the trial judge erred in the W.(D.) instruction by conflating the appellants' evidence and treating defence evidence as an all-or-nothing proposition.

These errors were deemed prejudicial, going to the heart of credibility assessment and the burden of proof.

The court declined to apply the curative proviso.

The appellant, Helder Sousa, appealed a 10-year sentence for sexual assault.

The Court of Appeal considered three grounds: failure to consider potential immigration consequences, treating denial of the offence and lack of remorse as aggravating, and that the sentence was demonstrably unfit.

The court dismissed the first two grounds, affirming that immigration consequences are discretionary and denial of the offence relates to rehabilitation, not aggravation.

However, the court found the 10-year sentence demonstrably unfit, particularly for a first offender, despite the egregious nature of the crime.

Applying principles of parity, proportionality, and restraint, and comparing it to similar cases, the court reduced the sentence to eight years' imprisonment (seven years, eight and a half months after credit for presentence custody).

The accused, charged with sexual assault, brought an application under s. 276(2) of the Criminal Code to adduce text messages exchanged with the complainant before and after the alleged offence.

The accused argued the sexualized messages formed part of the subject matter of the charge or were otherwise admissible to show the complainant's state of mind and to challenge her credibility.

The court held that the messages did not form part of the subject matter of the charge and were subject to the s. 276 screening regime.

The court ruled the messages were inadmissible to show the complainant's state of mind regarding consent, as this relied on myth-based reasoning.

However, certain messages were admitted for the limited purpose of exploring material inconsistencies in the complainant's preliminary hearing evidence.