Background
Robail Tekulu Hinseab was convicted in Manitoba Provincial Court of sexual interference, invitation to sexual touching, and forcible confinement involving a child who lived in the same apartment building and was a friend of his younger sister. The complainant described repeated sexual conduct between approximately ages nine and fourteen. The Crown also relied on her brother’s evidence, her mother’s evidence about Hinseab’s apology after being confronted, and text messages between Hinseab and the complainant.
At trial, the complainant’s mother unexpectedly testified about a second meeting involving the complainant, Hinseab and a pastor, where she said Hinseab apologized. Defence counsel cross-examined the mother about the new account but did not recall the complainant. On appeal, Hinseab argued that this late evidence engaged the fairness principles underlying Browne v Dunn, and that the trial judge shifted the burden of proof, scrutinized the defence evidence more harshly, and misapprehended the evidence.
The Court’s Holding
The Court of Appeal dismissed the appeal. It held that the Browne v Dunn rule did not directly apply because this was not a case in which counsel withheld a contradictory position from a witness and later relied on it. The mother’s evidence about the second meeting was unknown to both parties before she testified; it was not a Crown disclosure failure or evidence withheld from the defence.
The Court found no unfairness. Defence counsel cross-examined the mother extensively and could have recalled the complainant as a defence witness to address the second meeting. Choosing instead to challenge the mother’s credibility was a strategic decision, not a denial of a fair opportunity to answer the evidence. The Court also found that the trial judge applied W(D) correctly, gave cogent reasons for rejecting the sister’s evidence, considered inconsistencies in the Crown evidence, and did not shift the burden of proof or make a reviewable misapprehension of evidence.
Key Takeaways
- An unexpected answer from a Crown witness is not, without more, a disclosure breach or trial-by-ambush.
- An accused may recall a Crown witness as part of the defence case where further questioning is needed.
- An appeal court will not reweigh credibility findings absent a material and reversible error.
Why It Matters
The decision emphasizes that criminal trials are dynamic. When unforeseen evidence emerges, trial fairness depends on whether counsel had a meaningful procedural opportunity to respond, including by recalling a witness—not on whether the evidence was anticipated in advance.
It also reinforces the high threshold for overturning a trial judge’s credibility-based convictions. A different view of the evidence is insufficient without a demonstrated legal error, material misapprehension, or unsupported credibility assessment.