



WARNING

The
    President of the panel hearing this appeal directs that the following should be
    attached to the file:

An order
    restricting publication in this proceeding under ss. 486.4(1), (2), (2.1),
    (2.2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall
    continue.  These sections of
the Criminal Code
provide:

486.4(1)         Subject
    to subsection (2), the presiding judge or justice may make an order directing
    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)       any
    of the following offences;

(i)         an
    offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170,
    171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01,
    279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)        any
    offence under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)       REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)       two
    or more offences being dealt with in the same proceeding, at least one of which
    is an offence referred to in paragraph (a).

(2)       In
    proceedings in respect of the offences referred to in paragraph (1)(a) or (b),
    the presiding judge or justice shall

(a)       at
    the first reasonable opportunity, inform any witness under the age of eighteen
    years and the victim of the right to make an application for the order; and

(b)       on
    application made by the victim, the prosecutor or any such witness, make the
    order.

(2.1)
    Subject to subsection (2.2), in proceedings in respect of an offence other than
    an offence referred to in subsection (1), if the victim is under the age of 18
    years, the presiding judge or justice may make an order directing that any
    information that could identify the victim shall not be published in any
    document or broadcast or transmitted in any way.

(2.2) In
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice shall

(a) as
    soon as feasible, inform the victim of their right to make an application for
    the order; and

(b) on
    application of the victim or the prosecutor, make the order.

(3)       In
    proceedings in respect of an offence under section 163.1, a judge or justice
    shall make an order directing that any information that could identify a
    witness who is under the age of eighteen years, or any person who is the
    subject of a representation, written material or a recording that constitutes
    child pornography within the meaning of that section, shall not be published in
    any document or broadcast or transmitted in any way.

(4)       An
    order made under this section does not apply in respect of the disclosure of
    information in the course of the administration of justice when it is not the
    purpose of the disclosure to make the information known in the community. 2005,
    c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29;
    2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1)         Every
    person who fails to comply with an order made under subsection 486.4(1), (2) or
    (3) or 486.5(1) or (2) is guilty of an offence punishable on summary
    conviction.

(2)        For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Zou, 2017 ONCA 90

DATE: 20170203

DOCKET: C61309

Hoy A.C.J.O., Doherty and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bo Zou

Appellant

Marie Henein and Christine Mainville, for the appellant

Jill Witkin, for the respondent

Heard:  November 8, 2016

On appeal from the conviction entered by Justice Robert F.
    Goldstein of the Superior Court of Justice, on July 10, 2015, with reasons
    reported at 2015 ONSC 4479.

Doherty J.A.:


I



overview

[1]

The appellant was convicted of sexually assaulting A.Y.  The trial judge
    imposed a sentence of two years, less one day.  The appellant appeals
    conviction only.

[2]

The appellant advances three grounds of appeal.  The first raises the
    often vexing question of the evidentiary use that can be made of a
    complainants prior consistent statement.  Shortly after the alleged assault,
    A.Y. sent an anonymous email to the police in which she said she had been
    sexually assaulted by the appellant.  Her description of the assault was
    consistent with her trial testimony.  In his reasons, the trial judge relied on
    the email as corroboration of A.Y.s testimony.  The appellant submits that although
    the email was admissible for a limited purpose, it could not, as a matter of
    law, corroborate A.Y.s evidence.

[3]

I agree with this submission and would allow the appeal.  I would not
    give effect to the other arguments and do not propose to address them in these
    reasons.


II



the evidence

(i)

The photo shoot

[4]

A.Y. is from China.  In July 2012, she was 18 years old and attending university
    in Toronto on a student visa.  The appellant was 33 years old and working for
    an IT company.  The two met on a social networking app.

[5]

A.Y. testified that the appellant described himself in his profile as a
    photographer.  His profile included photographs of young women.  A.Y.
    recognized one of the women as a person she knew from school.  In his profile,
    the appellant offered to provide aspiring models with free photographs.

[6]

A.Y. and the appellant exchanged messages. After browsing some of the
    photographs of other young women on the appellants profile, A.Y. agreed to
    meet the appellant at his condo/studio for a photo shoot.  On the agreed-to
    day, A.Y. went to the appellants condo and waited in the lobby.  The appellant
    arrived about one hour later and they went upstairs to his condo.

[7]

The appellant offered A.Y. a drink.  She took one and had a few sips. 
    They talked about different things.  The appellant presented himself as a well
    off, sophisticated, talented fashion photographer.  A.Y. was not sure whether the
    appellant was telling the truth about himself.

[8]

The appellant expressed some disappointment with the black dress A.Y. was
    wearing.  He intended to photograph her in a style popularized by a famous
    Japanese photographer.  That style called for colourful erotic clothing.

[9]

The appellant took two series of photographs of A.Y.  In the first series,
    A.Y. wore the black dress.  In the second, she wore a tank top provided by the
    appellant.  Some of the photographs were sexually suggestive.  A.Y. testified
    that the appellant told her how to pose.  He testified that A.Y. chose her
    poses without his input.

[10]

After
    taking two sets of photographs, A.Y. and the appellant sat down on the couch to
    look through the photographs on his camera.  According to A.Y., the appellant
    attempted to kiss her twice.  He also touched her.  The appellant assured A.Y.
    that it was common for photographers and their models to be intimate so that
    they could gain a better understanding of each other.

[11]

A.Y.
    testified that she repeatedly told the appellant to stop.  He eventually stopped
    and assured her that he would not make any more advances.  The appellant invited
    A.Y. to sit on the side of the bed near the couch.  She did so and they talked
    briefly.  The appellant then attacked A.Y., pushing her to the bed and groping
    her.  A.Y. tried to push the appellant away, but she could not overcome his
    assaults.  He eventually removed his clothing and pulled her underwear off.  He
    tried to have a sexual intercourse with A.Y.

[12]

A.Y.
    testified that she initially resisted the efforts at sexual intercourse, but
    then realized that she could not stop him.  She asked the appellant to use a
    condom.  He produced a condom and proceeded to have sexual intercourse with A.Y. 
    She did not consent, but instead stopped resisting, realizing that it was
    futile.  After about ten minutes, the appellant stopped.  A.Y. fled into the
    bathroom.  She was not sure whether the appellant had used a condom, but she
    suspected that he had not as she noticed a liquid discharge in her vagina.

[13]

A.Y.
    testified that she was angry and wanted to get away from the appellant.  When
    she left the washroom, the appellant said she should come back to his condo in
    a few days to get her photographs.  Although A.Y. had no interest in the
    photographs and only wanted to get away from the appellant, she replied, Well
    see.

[14]

The
    appellant escorted A.Y. to a taxi stand near the condo.  He was holding her
    hand as they went through the condo lobby.  A.Y. got into a taxi and went straight
    home.

[15]

The
    appellant gave a very different version of the events following the photography
    sessions.  He testified that when he and A.Y. were sitting on the couch looking
    at the photographs, A.Y. kissed him.  The appellant said he was surprised and
    shocked.  He told A.Y. that he had a girlfriend and reminded A.Y. that she had
    told him that she had a boyfriend.  A.Y. became angry when the appellant
    rebuffed her advances.

[16]

The
    appellant agreed that before A.Y. left, he invited her to return in a few days
    to pick up her photographs.  He escorted her to a taxi stand outside his condo. 
    He heard nothing about any alleged sexual assault until about 14 months later.

(ii)

The email

[17]

A.Y.
    testified that she was angry when she got home.  She blamed herself for
    foolishly putting herself in a position in which the appellant could take
    advantage of her.  She was so upset that she could not sleep.  Early the next
    morning, A.Y. decided to report the assault by sending an anonymous email to
    the local police station.  A.Y. did not use her regular email address, but
    instead used one she had registered years earlier and no longer used.

[18]

In
    the email, A.Y. described the appellants attack on her in some detail.  The
    description was consistent with her trial testimony.  She referred to the
    appellant as Jay  an alias he used online  and provided his phone number. 
    She concluded the email with a request that the police contact her and do
    something about the assault.  A.Y. did not give her name and the only email
    address available to the police was the one A.Y. used to send the email.

[19]

A.Y.
    sent the email on July 31, 2012, the morning after the alleged assault.  The
    police responded by email on January 10, 2013, about five and one-half months
    later.  According to the police email, no one had checked the mailbox to which
    A.Y. had sent her email for a few months.  In their email, the police asked A.Y.
    to come forward and identify herself so that they could investigate the
    allegation.

[20]

A.Y.
    testified that although she initially checked for responses to her July 31,
    2012 email on a regular basis, she stopped doing so after receiving no response
    from the police.  A.Y. had not checked the email for some time when she checked
    it in August 2013 and found the email sent by the police on January 10, 2013.

[21]

A.Y.
    was with her boyfriend when she read the police email.  She became upset and
    eventually told her boyfriend what had happened.  He convinced her that she had
    to go to the police.  She did so and the ensuing investigation led to the
    appellants arrest, some 14 months after the incident.


III



the trial judges reasons

[22]

A.Y.
    and the appellant were the only witnesses at trial.  The defence position was
    that the alleged assault never happened. The defence claimed that A.Y. falsely
    accused the appellant because he had rebuffed her sexual advances.

[23]

The
    trial judge recognized that the outcome of the trial turned on his assessment
    of the credibility and reliability of A.Y. and the appellant.  He directed
    himself that he must make his assessment using the well-known three-part
    analysis described in
R. v. W.(D.)
, [1991] 1 S.C.R. 742.

[24]

The
    trial judge first considered and rejected the appellants evidence, concluding
    that it was incredible and did not leave him with a reasonable doubt (at paras.
    21-28).  The trial judge accepted that the appellant gave his evidence in a
    straightforward and non-argumentative manner, but ultimately found that his
    story does not make sense.

[25]

The
    trial judge turned next to A.Y.s evidence.  He reviewed her testimony and
    found it credible and reliable (at paras. 29-39).  At para. 30, the trial judge
    set out in bullet point form his reasons for finding A.Y. credible.  For
    convenience, I have numbered the bullet points.  The third bullet point is the
    main focus of this ground of appeal:

[1]  A.Y. readily agreed to factual
    errors in her testimony both before me and at the preliminary inquiry and
    explained the reasons for them.  She did not argue with counsel, but took her
    time to try and answer the questions.

[2]  A.Y.s decision to send an
    email and not follow up is very consistent with the behaviour of a victim who
    is ashamed of her own gullibility.  Wanting to remain anonymous is common among
    victims of sexual assault.  A.Y. said as much herself.  She called herself
    ignorant.  I would use different words.  I would say that she was young and
    naïve.

[3]  Thus most importantly, I find
    A.Y.s email, sent contemporaneously with the events, to be corroboration of
    her evidence.


IV



did the trial
    judge make improper use of A.Y.s email to the police?

A:      References to the email
    at trial

(i)

In the evidence

[26]

A.Y.s
    email to the police was introduced into evidence during her
    examination-in-chief.  She read the document into the record in its entirety
    and it was made an exhibit.  There was no objection by trial counsel for the
    appellant and no indication by counsel or the trial judge of the purpose for
    which the email was tendered or any limitation on its use.

[27]

In
    cross-examination, A.Y. testified that the contents of the email helped refresh
    her memory on a few details of the encounter with the appellant.  A.Y. was
    cross-examined about the time at which she sent the email and one minor
    inconsistency between the email and her testimony.

(ii)

In the arguments

[28]

Both
    counsel made reference to the email in their closing arguments.  Defence
    counsel relied on the sending of an anonymous, untraceable email, and the
    failure to follow-up on the email, to support the position that the allegation
    was untrue and fabricated by A.Y. as revenge for the appellants rejection of
    her advances and as some form of self-protection should her boyfriend or family
    members find out about the encounter with the appellant.

[29]

In
    his submissions at trial, Crown counsel maintained that A.Y. was a credible and
    reliable witness. He referred to both the email and A.Y.s conduct after leaving
    the condo.  He argued that the defence position that A.Y. had made a false
    accusation to gain revenge or somehow protect herself made no sense in light of
    the manner in which A.Y. reported the assault.  Counsel submitted that
    sending an anonymous email and not following-up on it was a truly bizarre way
    for a complainant to make a false allegation of sexual assault.

[30]

Crown
    counsel also argued that A.Y.s version of the incident had been consistent
    throughout, beginning with the description of the assault in the email and
    culminating with her testimony at trial:

The night that she returned from his condominium, she wrote in
    somewhat halting English an account of what happened to her that night in his
    condominium [the email],
which has really, in terms of material facts, has
    been completely unchanged from the moment she wrote it until the day that she
    finished testifying here at this trial.
She has never wavered.  She has
    been cross-examined at a preliminary inquiry and cross-examined at a trial and
    she has been consistent in terms of the material and important elements of what
    occurred that night.  [Emphasis added.]

(iii)

In the reasons

[31]

The
    trial judge referred to the email six times in his reasons. He first averted to
    it in his overview of the case at the beginning of the judgment.  The second
    and third references to the email appear at paras. 16 and 17, when the trial
    judge is summarizing A.Y.s evidence.  The relevant portion, at para. 16, reads:

The email went on to describe the sexual assault in some
    detail.  It did not differ in any significant way from the evidence that [A.Y.]
    gave at this trial.

[32]

The
    trial judge refers to the email for a fourth time when he is explaining his
    reasons for rejecting the appellants evidence.  In the course of examining the
    defence submission that A.Y. had falsely accused the appellant because she was
    angry with him after he rejected her, the trial judge said, at para. 25:

Most importantly, the idea that A.Y. decided to go to the
    police and claim she was sexually assaulted because [the appellant] spurned her
    makes no sense given how her contact with the police developed.  She
    deliberately hid her identity and then did not pursue the matter when the
    police did not respond instantly.  She only went to the police when her
    boyfriend insisted.  Her behaviour was inconsistent with a desire to see [the
    appellant] arrested and charged.  Her behaviour was much more consistent with
    that of a sexual assault victim who was embarrassed than with a woman spurned
    and seeking revenge.  Obviously, [the appellant] is not responsible for A.Y.s
    behaviour, but in the context of these facts the defence theory does not make
    sense.

[33]

The
    fifth and sixth references by the trial judge to the email appear in the paragraph
    in which he sets outs his reasons for finding A.Y. credible.  The paragraph is
    set out at paragraph 25 of these reasons.  For convenience, I will repeat the two
    bullet points that refer to the email:

[2]   A.Y.s
    decision to send an email and not follow up is very consistent with the
    behaviour of a victim who is ashamed of her own gullibility

[3]  Thus most
    importantly, I find A.Y.s email, sent contemporaneously with the events, to be
    corroboration of her evidence.

B:      The trial judges uses of
    the email in his reasons

[34]

At
    para. 25 of his reasons, the trial judge used the evidence that A.Y. sent an
    anonymous email to the police complaining about the assault in considering and
    rejecting the defence submission that A.Y. had falsely accused the appellant
    because she was angry when he rejected her sexual advances.

[35]

Ms.
    Henein, for the appellant, accepts that the email could be used to undermine
    the defence position as to the motive for A.Y.s false accusation.  Used in
    this way, the email is a relevant piece of circumstantial evidence that, placed
    in the context of the rest of the evidence, makes the existence of the reason
    advanced by the defence for A.Y.s false allegation more or, as the trial judge
    found, less likely.  The truth of the contents of the email is irrelevant to
    this evidentiary use.

[36]

The
    trial judge used the email in a second way that is very closely related to the
    first.  In bullet point [2], the trial judge reasoned that A.Y.s decision to
    send an anonymous email to the police and her failure to follow-up on that
    email were consistent with her evidence that she was angry, confused and ashamed
    of her own gullibility after the incident.  In the trial judges assessment, the
    sending of the email and the failure to follow-up was conduct that was consistent
    with A.Y.s testimony about her state of mind after the incident.  As with the
    first use of the email, the truth of the contents of the email was irrelevant
    to this evidentiary use.

[37]

In
    my view, this second use of the email is indistinguishable for evidentiary
    purposes from the first.  In both instances, the email is treated as a piece of
    circumstantial evidence relevant to a fact in issue.  The trial judges finding
    that A.Y.s conduct in respect of the email and its aftermath was consistent
    with A.Y.s description of her state of mind necessarily impacted the trial
    judges assessment of her credibility in a positive way:  see
R. v.
    Stirling
, 2008 SCC 10, [2008] 1 S.C.R. 272, at paras. 11-12.

[38]

If
    the trial judge used the email evidence only for the two purposes described
    above, this ground of appeal would fail.  The appellant submits, however, that
    the trial judge went beyond those two uses.  He refers to the trial judges
    description of the email as corroboration of [A.Y.s] evidence in bullet
    point [3] as demonstrating that the trial judge used the contents of the email
    as evidence of the truth of the allegations in the email, and used the
    consistency between the contents of the email and A.Y.s testimony to confirm
    her testimony.  The appellant relies heavily on
R. v. Dinardo
, 2008
    SCC 24, [2008] 1 S.C.R. 788, at para. 40, in which the court held that a trial
    judges reference to a prior consistent statement as a form of corroboration
    of the complainants evidence constituted reversible error:  see also
R. v.
    Lopez
, 2015 BCCA 294, at para. 35.

[39]

Ms.
    Witkin, for the Crown, does not suggest that the email was admissible for the
    truth of its contents.  Nor does she argue that the consistency between the
    contents of the email and A.Y.s trial testimony can confirm the truth of
    A.Y.s evidence.  Ms. Witkin contends that the trial judge did not use the email
    for any purpose other than the two legitimate purposes described earlier in these
    reasons.  She submits that the second and third bullet points must be read
    together as describing a single use of the email as circumstantial evidence to
    rebut the defence position with respect to A.Y.s motive for reporting the
    incident and to support the complainants evidence as to her state of mind when
    she left the condo.  Crown counsel points to the word thus at the start of
    the third bullet point as providing the bridge joining the second and third
    bullet points.

[40]

The
    trial judges use of the word corroboration in the context of a prior
    consistent statement by a witness is troubling.  That word, as commonly understood,
    refers to evidence from a source other than the witness whose evidence is
    challenged which is capable of confirming the veracity of the evidence of the challenged
    witness:  see
Vetrovec v. The Queen
, [1982] 1 S.C.R. 811, at p. 829;
R.
    v. Kehler
, 2004 SCC 11, [2004] 1 S.C.R. 328, at paras. 12-15; and
R.
    v. Khela
, 2009 SCC 4, [2009] 1 S.C.R. 104, at paras. 37-40.

[41]

The
    email evidence did not have either characteristic required for evidence to be
    corroborative.  It was not from a source independent of A.Y.  Nor could the
    email confirm the veracity of A.Y.s trial testimony unless the email was
    improperly used for the truth of its contents, or the consistency between the
    email and A.Y.s testimony was improperly viewed as confirmatory of her trial
    testimony.  If, as the appellant submits, the trial judge used the word corroboration
    as it is customarily used in the law of evidence, he erred in law in treating
    the email as corroborative.

[42]

Appellate review of a trial judges reasons does not, however, focus on
    individual words considered in isolation from the rest of the reasons or the entirety
    of the trial proceedings.  Words take their meaning from the context in which
    they are used.  In a criminal case, context includes the evidence led, the
    arguments made, and the rest of the trial judges reasons.  What might appear
    to be a judicial misstep, or an ambiguity in the language used in the reasons,
    is often clarified after a careful review of the whole of the reasons read in
    the context of the entirety of the proceedings:  see
Stirling
, at paras.
    13-14;
R. v. Gagnon
, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 19;
    and
R. v. B.A.
, 2008 ONCA 556, 238 O.A.C. 198, at paras. 33-34, leave
    to appeal refused, [2008] S.C.C.A. No. 415.  A proper contextual reading of the
    reasons will sometimes demonstrate that the trial judge used the word corroboration
    in a more limited sense than it is typically used:  see e.g.
R. v. G.M.
,
    [2000] O.J. No. 5007 (Ont. C.A.), at para. 2;
R. v. R.M.
, 2014 ONCA
    785, 317 C.C.C. (3d) 145, at paras. 69-76; and
R. v. Luceno
, 2015 ONCA
    759, 331 C.C.C. (3d) 51, at para. 58.

[43]

My
    review of the entirety of the reasons, considered in the context of the trial
    as a whole, reveals nothing that would support the claim that the trial judge
    meant to use the word corroboration in some way other than in its normal
    sense.  There is no express indication by the trial judge or either counsel, at
    any point in the trial, that they understood that the email could not be used for
    the truth of its contents or to support A.Y.s credibility because its contents
    were consistent with her testimony.  Unlike some of the cases referred to by Crown
    counsel, the trial judges use of the word corroboration is not clarified or
    modified by any other comment made by him in his reasons or anywhere else in the
    trial proceedings.

[44]

Crown
    counsel on appeal argued that an exchange between counsel for the accused and
    the trial judge during the defences closing submissions demonstrated that the
    trial judge appreciated that the email was not admissible for the truth of its
    contents.  I do not read the exchange in that way.  As I read it, the trial
    judge was simply indicating that he did not regard the sending of the email by
    A.Y. as necessarily inconsistent with the truth of her allegations.  I do not
    think that the comment says anything about the trial judges understanding of
    the evidentiary use that could be made of the email or its contents, or any
    limits on that use.

[45]

To
    the contrary, to the extent that counsels submissions shed light on how the
    trial judge may have used the email, one of Crown counsels submissions invited
    a misuse of the email.  Crown counsel argued that the consistency in A.Y.s
    description of what happened from her first telling in the email to her testimony
    supported her credibility.  He emphasized that A.Y. never wavered.

[46]

If
    the trial judge accepted this argument, and he did refer to the consistency
    between the content of the email and A.Y.s trial testimony in his reasons (see
    para. 16), he misused the email to buttress A.Y.s credibility by virtue of the
    consistency between the content of the email and her testimony.  This misuse of
    the email is arguably reflected in the trial judges description of the email
    as corroborative, that is, confirmatory of A.Y.s testimony.

[47]

I
    also cannot agree with Crown counsels reading of bullet point [2] and bullet
    point [3] as referring to a single evidentiary use of the email.  The potential
    ambiguity introduced by the word thus does not outweigh the other indicators
    demonstrating that the trial judge used the email for a different and improper
    purpose in the third bullet point.  The trial judge saw fit to refer to each in
    a separate bullet point.  The structure of the relevant paragraph strongly
    suggests that the trial judge saw the email as providing two separate bases for
    finding A.Y. credible.

[48]

The
    language used in bullet point [2] compared with the language used in bullet
    point [3] confirms that the trial judge used the email for two different
    purposes.  In bullet point [2], the trial judge referred not to the email itself,
    but to the sending of the email and the failure to follow-up on the email with
    the police as conduct that was consistent with one specific feature of A.Y.s
    evidence  her description of her state of mind after the incident.  The actual
    content of the email was clearly irrelevant to this analysis.

[49]

In
    bullet point [3], the trial judge refers to the email sent contemporaneously
    with the events as corroborating A.Y.s testimony, without any reference to a
    specific part of her testimony.  Bullet point [3] reflects a broader use of the
    email itself as confirmatory, not of a specific aspect of A.Y.s testimony, but
    of her testimony as a whole.  This broader use of the email to confirm A.Y.s
    credibility in a general sense is exactly the manner in which evidence which
    fits the generally accepted meaning of corroboration works to enhance the
    credibility of a witness.  The language of bullet point [3] indicates to me
    that the trial judge gave the word corroboration its generally accepted
    meaning.

[50]

Lastly,
    I consider the submission that a trial judge is assumed to know the law and
    that any ambiguity in the language used by the trial judge should, by force of
    that assumption, be resolved in favour of an interpretation of the reasons that
    is consistent with the applicable law.  No doubt, trial judges are assumed to
    be alive to the relevant legal principles.  That assumption, however, operates when
    there is a true ambiguity in the trial judges reasons.  Having considered
    these reasons as a whole, I do not see any ambiguity in the trial judges declaration
    that the email was corroborative of A.Y.s testimony.  I think he meant that it
    confirmed A.Y.s testimony.  In law, it could not have that effect.  I would
    add, that it would be somewhat ironic to resort to the assumption that a trial
    judge knows the law to interpret the word corroboration in a manner that is contrary
    to the accepted meaning of the word in the legal lexicon.


V



conclusion

[51]

The trial judge erred in law in holding that the email was corroborative
    of A.Y.s evidence.  The Crown, correctly in my view, does not argue that the
curative
    proviso
can be applied to this error.  I would allow the appeal, quash the
    conviction, and order a new trial.

Released: AH  FEB 03
    2017

Doherty J.A.

I agree Alexandra Hoy A.C.J.O.

I agree K. van Rensburg J.A.


