Background
S.W. was convicted after a nine-day trial of two counts of sexual assault and two counts of sexual interference involving the niece and nephew of his partner. The alleged incidents occurred between 2016 and 2019, when the complainants were children, at family homes and gatherings. The appellant denied the allegations and argued that one complainant had fabricated the claims and influenced the other.
The trial judge accepted the core of the complainants’ evidence, despite inconsistencies and memory issues. She found that the appellant committed the alleged acts involving the older complainant and that he touched the younger complainant’s penis while they played video games in 2019, as well as offering him money to join him in the shower.
The Court’s Holding
The Court of Appeal dismissed the appeal. It agreed that the 18-year-old complainant was improperly permitted to testify on a promise to tell the truth rather than by oath or solemn affirmation, as ordinarily required for a witness aged 14 or older. But the court held that the procedural error caused no substantial wrong or miscarriage of justice and applied the Criminal Code’s curative proviso.
On the record, the complainant had formally promised to tell the truth, the whole truth, and nothing but the truth; there was no objection at trial; and the trial judge found that she understood and sought to meet her obligation to be truthful. The court also found no reviewable error in the trial judge’s treatment of the partner’s evidence, the evidence about camouflage pyjama pants, or inconsistencies in the complainant’s accounts. Read functionally and as a whole, the trial reasons adequately explained the credibility findings and verdicts.
Key Takeaways
- An adult witness’s testimony under a promise rather than an oath or affirmation is an error, but it may be cured where the record establishes no prejudice.
- Appellate courts assess trial reasons contextually and do not search them for minor or peripheral errors.
- A trial judge need not resolve every inconsistency if the reasons show a thorough, intelligible credibility and reliability assessment.
Why It Matters
The decision confirms that an irregular witness commitment is procedural rather than automatically fatal. The question is whether the Crown can show that the error did not affect the fairness or result of the trial.
It also reinforces the high deference given to trial judges’ credibility findings in sexual-offence cases, particularly where alleged inconsistencies concern peripheral details rather than the accepted core allegations.