R. v. Giovannini

IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation: R. v. Giovannini, 2018 NLCA 19 Date: April 13, 2018 Docket Number: 201601H0102 Restriction on Publication: By court order made under subsection 486.4(1) if the Criminal Code, information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way. BETWEEN: BRADLEY GIOVANNINI APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT Coram: Welsh, White and Hoegg JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador 201401G0218 (2016NLTD(G)149) Appeal Heard: December 8, 2017 Judgment Rendered: April 13, 2018 Page 2 Reasons for Judgment by: Hoegg J.A. Concurred in by: Welsh and White JJ.A. Counsel for the Appellant: John Brooks Q.C. and Bob Buckingham Counsel for the Respondent: Iain Hollett Hoegg J.A: INTRODUCTION [1] This appeal is principally concerned with the propriety of a judge questioning witnesses, in particular an accused, in a criminal trial. [2] On September 8, 2016 Bradley Giovannini was convicted of sexual assault, sexually touching a person under sixteen years of age, and communicating by means of a computer with a person under age 16 for the purpose of facilitating the sexual assault and sexual touching offences charged. He was subsequently sentenced to four and one-half years in prison. Mr. Giovannini appeals his convictions primarily on the basis that the trial Judge’s questioning of him compromised trial fairness. BACKGROUND [3] Mr. Giovannini’s convictions pertain to events which took place late on June 3 and early June 4, 2012 between him and J.B., a fourteen-year-old girl. He was 29 years old at the time. The parties had seen each other at the Avalon Mall in the early evening of June 3, 2012 and upon Mr. Giovannini recognizing J.B. as the younger sister of his former girlfriend, he contacted her by text. The evidence was that J.B. did not give him her cell number but because it was posted on Facebook she assumed he got it there. [4] According to the evidence, the parties were texting back and forth and Mr. Giovannini asked J.B. by text how old she was. She replied that she was “14 aha”. Later that evening Mr. Giovannini invited J.B. by text to come to his residence saying he would cover her taxi fare. She replied that she had school the next day. Mr. Giovannini replied that “maybe I’m too horny drunk LOL” and that he would “treat u good” and “Ya, I’m baddd”. Mr. Giovannini texted Page 3 J.B. again, saying he didn’t trust himself with her and asked her not to let her older sister know of their communications. [5] The evidence of the text communications between Mr. Giovannini and J.B. came from J.B.’s cell phone. There was no evidence adduced that came from Mr. Giovannini’s cell phone. [6] J.B. testified that she sneaked out of her mother’s house (after arguing with her) in the early morning of June 4, 2012. She was wearing pajama bottoms over her jeans and had no shoes on. She walked to Mr. Giovannini’s residence. She said they talked and drank beer and that she eventually moved to a sofa to sit next to him. J.B. said she was feeling slightly drunk and that Mr. Giovannini began to “feel her up”. She asked him to stop, but he persisted, pulling off her pajama bottoms, jeans and panties, and then inserting his penis into her vagina, all while she was asking him to stop. Afterwards she told him she wanted to go home and a taxi was called to take her there. [7] Mr. Giovannini testified that the sexually suggestive texts and the text requesting J.B.’s age were sent to her in error. He said that he thought he was texting K.A., an older girl, and that when J.B. showed up at the door, he was expecting K.A. and only let J.B. in because she had no shoes on. His evidence respecting what went on at his residence was that he did not give J.B. any beer to drink and that after talking, he fell asleep. He said he awakened to find J.B. fondling his penis under his pajama pants, and also fondling herself. He said that he made her stop, and he denied that intercourse occurred. He said that a taxi was arranged for her to go home and that she hugged him before she left. [8] Expert medical evidence confirmed that intercourse had taken place between J.B. and Mr. Giovannini. This evidence was not seriously challenged by Mr. Giovannini’s counsel at trial. [9] The Judge accepted J.B.’s evidence as to the events of June 3 and 4, 2012. He found that her recollection of the events was not impaired by alcohol, and that the credibility of her evidence was enhanced by her obvious agitation and demeanor upon counsel for Mr. Giovannini presenting her with what Mr. Giovannini was going to say. [10] The Judge rejected much of Mr. Giovannini’s evidence. In particular the Judge found Mr. Giovannini’s assertion that he thought he was texting K.A. and his explanation that he asked K.A. her age because his mother would not think well of him for dating a girl seven to eight years younger than he “smacked of Page 4 contrivance” and were “simply not credible”. The Judge also rejected Mr. Giovannini’s evidence that it was J.B. who had sexually assaulted him rather than the reverse, and that he had not had intercourse with J.B. In any event, the Judge reasoned that J.B. was not capable of legally consenting to sexual relations with Mr. Giovannini due to her age. There was no dispute that J.B. was under 16 at the time and unable to consent. [11] After Mr. Giovannini had been examined by his own counsel and cross- examined by Crown counsel, the Judge asked him many questions. The judicial questioning of Mr. Giovannini spanned eighteen pages of transcript, in contrast to thirteen pages for his direct evidence and 31 pages for his cross-examination. He says that the Judge’s questions ranged from “permissible clarification” to “impermissible cross-examination” and that the questions were interspersed with comments “expressing concern or doubt about his (Mr. Giovannini’s) position”. [12] Mr. Giovannini appeals his conviction arguing that the Judge erred in law by “extensively and improperly questioning the Appellant at trial such that the fairness of the trial was compromised”. He also argues that the Judge misapprehended evidence respecting whether J.B. was intoxicated and that this misapprehension resulted in an unfair verdict. ANALYSIS Did the Judge’s questioning of Mr. Giovannini compromise the fairness of his trial? The Law [13] In R. v. Brouillard, [1985] 1 S.C.R. 39, the Supreme Court of Canada addressed the issue of judicial questioning of witnesses during the course of a criminal trial. Lamer J., writing for the Court, reviewed the jurisprudence respecting same, and stated the governing principle to be that justice should not only be done, but should manifestly and undoubtedly be seen to be done (paragraph 13). He identified several rules arising from the principle, among which were the following: (1) A judge may and sometimes must ask witnesses questions, interrupt them in their testimony and if necessary call them to order (paragraph 17); (2) A judge has not only the right, but also the duty to put questions to a witness in order to clarify an obscure answer or to resolve Page 5 possible misunderstanding of any question by a witness, even to remedy an omission of counsel, by putting questions which the judge thinks ought to have been asked, in order to bring out or explain relevant matters (paragraph 21); and (3) A judge must exercise greater restraint in questioning when the accused is being questioned (paragraph 24). [14] In Brouillard the Court ultimately ordered a new trial, ruling that although the trial judge was not biased, his repeated interventions and questioning (almost 30 interruptions with questions of the accused’s examination in chief, 40 interruptions with questions during his cross-examination, and ten interruptions involving 60 questions of a defence witness) gave the impression of assisting the prosecution, thereby leaving the impression that justice was not seen to have been done (paragraphs 26, 27 and 30). [15] Two years later in R. v. Valley (1986), 26 C.C.C. (3d) 207 (Ont. C.A.) leave to appeal to the S.C.C. refused, [1986] 1 S.C.R. xiii (note) at para. 53, Martin J.A. distilled the principles from Brouillard and other jurisprudence into the following three to govern when a judge may properly question a witness: (1) to clear up ambiguities and call a witness to order; (2) to explore some matter which the witness’ answers have left vague; and (3) to put questions which should have been asked by counsel in order to bring out some relevant matter, but which were nonetheless omitted. [16] Justice Martin cautioned that a judge’s questioning should take place after counsels’ questioning. He also stated that a judge’s position of established neutrality requires a judge to confine him or herself to their own responsibilities and to leave counsel to theirs (Valley at paragraph 54). [17] In R. v. Stucky, 2009 ONCA 151, 303 D.L.R. (4th) 1 the same appellate court reiterated the Valley principles, saying, at paragraph 68: The test is an objective one as stated by Martin J.A. in Valley, at p. 232: The ultimate question to be answered is not whether the accused was in fact prejudiced by the interventions but whether he might reasonably consider that he had not had a fair trial or whether a reasonably minded Page 6 person who had been present throughout the trial would consider that the accused had not had a fair trial. [Emphasis added.] [18] This Court addressed the effect of judicial intervention in questioning witnesses in R. v. Churchill, 2016 NLCA 29, 381 Nfld. & P.E.I.R. 1. In Churchill, the appellant had alleged that the trial judge’s constant interruption of counsel’s questioning (some 20 times) and insertion of his own questions and comments made in dismissive tones had curtailed defence counsel’s ability to effectively cross-examine the principal Crown witness which resulted in an unfair trial. The Churchill court identified denial of the right to make full answer and defence and impartiality as two related but distinct aspects of trial fairness. The Court effectively applied the Valley test and found that the cumulative effect of the judge’s interventions with inappropriate questions and comments “crossed the line” and “would leave a reasonable observer with the impression that the judge had a negative view of the defence ... and was improperly trying to assist the Crown … to the prejudice of the accused” thereby leaving the appearance of an unfair trial (paragraph 46). Mr. Giovannini’s Argument [19] Mr. Giovannini has grouped the Judge’s questioning of him into five chronological parts which he says show that the Judge abandoned his position of neutrality and usurped the role of counsel. He submits that the questioning, when considered cumulatively, crossed the line to the extent that a reasonable observer would conclude that this trial was not fair. [20] The first group of questions concerns the Judge’s questions, found at pages 49-51 of Volume XII of the transcript, respecting Mr. Giovannini’s testimony that he thought he was texting K.A. Mr. Giovannini argues that the questions go beyond clarification, were “not simply factual”, and that they suggested answers that would indicate Mr. Giovannini had an unfavorable attitude and opinion toward K.A. [21] I have reviewed these questions as well as Mr. Giovannini’s responses to them. I cannot characterize the questions as inappropriate. They are directed at clarifying Mr. Giovannini’s evidence respecting his position that he thought he was texting K.A., evidence which could leave many people bewildered. Clarification was necessary in order to fairly consider Mr. Giovannini’s testimony. Page 7 [22] The second group of judicial questions also concerned Mr. Giovannini’s testimony about K.A. – specifically her age. Mr. Giovannini submits that these questions, found at pages 51-55 of Volume XII of the transcript, were unnecessary and in the nature of cross-examination. These questions sought explanation from Mr. Giovannini concerning the plausibility of his evidence that he thought he was texting K.A. I do not regard this questioning as inappropriate, even if the questions were repeating territory already covered. In some ways it could be considered as giving Mr. Giovannini a further opportunity to explain his position. While the questions could be characterized as cross-examining in nature, they were not aggressive, sarcastic, or calculated to trip up Mr. Giovannini. Rather, they were the Judge’s attempt to understand Mr. Giovannini’s position that the age of a sexual partner mattered to him. The Judge’s questioning was directed to ensuring that he understood Mr. Giovannini’s evidence, and the Judge’s expressions of doubt about Mr. Giovannini’s answers were in the nature of giving Mr. Giovannini a chance to explain himself, of which he availed. [23] A word about judicial questioning in the nature of cross-examination. Whether a particular question falls into the category of direct or cross- examination can often be a matter of debate. Some questions are obviously one or the other, and some could be said to be in a grey zone. In any event, the authoritative jurisprudence does not preclude a judge from asking a question which could be in the nature of cross-examination. In this regard I disagree with the trial judge in R. v. Lahouri, 2013 ONSC 2085, relied on by Mr. Giovannini, wherein the judge lists “no cross-examination” as a principle governing judicial questioning. I do not agree, for aside from “grey zone” questions, there may well be instances where a judge must ask a cross-examining type of question in order to clarify evidence or get to the truth of a matter. While a judge cannot abandon his or her position of neutrality, questions which could be characterized as cross-examining in nature do not necessarily impinge on neutrality. [24] The third group of questions concerns Mr. Giovannini’s evidence respecting his consumption of alcohol on June 3, 2012. The Judge’s questions, at pages 55-57 of Volume XII, relate directly to Mr. Giovannini’s evidence and again, I would characterize them as questions of clarification. However, the Judge’s comment, “I think you were so drunk you didn’t know what you were doing or maybe fourteen didn’t bother you” is sarcastic and would have been better left unsaid. Mr. Giovannini alleges that the comment was a premature expression of the Judge’s view of Mr. Giovannini’s credibility. While overall evaluation of the credibility of witnesses is fluid – and ultimately based on a Page 8 consideration of all of the evidence, a judge is entitled to accept all, some, or none of what any one witness has said. While it may be preferable for a judge to reserve credibility comments for final judgment, there is no principle which precludes a judge from conveying doubt about evidence as it is adduced – by comment or demeanor, provided it does not jeopardize the fairness of the trial. Such an expression does not mean that the judge has prejudged the case. In the context of this trial, I do not regard the Judge’s sarcastic comment as bearing on the fairness of Mr. Giovannini’s trial. [25] The fourth group of judicial questions, at pages 58-59 of Volume XII of the transcript, covers the issues raised in groups two and three above. The questioning related to K.A.’s age and the appellant’s drinking. The questioning was repetitive of questions already asked and evidence covered, but obviously directed at resolving lingering misgivings the Judge had. Because it can be regarded as having been unnecessary does not mean that it affects the fairness of Mr. Giovannini’s trial. [26] The last group of questions, at pages 60-66 of Volume XII of the transcript, relates principally to the sexual activity between Mr. Giovannini and J.B. Mr. Giovannini asserts these questions and comments were repetitive and unnecessary, beyond clarification, and in the nature of cross-examination. I do not share Mr. Giovannini’s view. This questioning is directed at clarifying, for the Judge, matters of detail concerning Mr. Giovannini’s evidence about J.B.’s sister and the sexual activity that had transpired between him and J.B. The Judge obviously had remaining questions about Mr. Giovannini’s evidence in these regards which he sought to clarify. [27] In summary, the questioning of Mr. Giovannini by the Judge was primarily for the purpose of clarifying the Judge’s understanding of the evidence. The Judge did not interrupt either counsel’s questioning of Mr. Giovannini or of his responses. As well, the judicial questioning took place, appropriately, after cross-examination had concluded, and counsel did not object at the time or even seek to redirect. [28] Mr. Giovannini complains that no opportunity was given to counsel to redirect on matters arising from the Judge’s questions. It is true that the Judge did not invite either counsel to redirect after he finished questioning, and it would have been preferable for the Judge to have done so. However, counsel should not have required an invitation. Counsel had every right and responsibility to redirect if either determined it to be necessary or appropriate, and the Judge did not prevent them from doing so. Page 9 [29] Finally, I observe that there is a vast difference in how judges handle trials. Some judges are inscrutable, and others get more involved. The Judge in this case asked questions after counsel had completed their examinations of most – at least ten – witnesses including J.B. Although the questioning of the other witnesses was not as extensive as it was of Mr. Giovannini, it was nevertheless considerable. [30] Extensive judicial involvement in questioning witnesses can pose a risk to the perception of “justice not being seen to be done” and the perceived fairness of a trial. Accordingly, the prudent course is to avoid extensive questioning. However, even extensive questioning must be viewed in the context and circumstances of the individual trial. In this case, the questioning of Mr. Giovannini was considerable and could be regarded by some as excessive. However, unlike in Churchill, it was not improper, interruptive, impolite or aggressive. And, as noted above, it was for clarification purposes. I also note that this trial took place on various days at various intervals over a period of six months. The trial began in March 2016 when several police officers involved in the investigation testified. The taxi driver, Mr. Michael Arsenault, testified on June 15, 2016, and J.B. testified on June 16-17, 2016. Mr. Giovannini testified on August 12, 15 and 17, 2016. I reference these times and dates for the purpose of showing that the Judge’s requirement for clarification may have related somewhat to the fact that he heard much evidence, including that of J.B., months before Mr. Giovannini testified. While such interruptions in a trial cannot excuse judicial questioning which undermines trial fairness, they may explain the need for some clarification. I also note that the record reveals that the Judge had difficulty hearing J.B.’s voice on the video of her evidence, and that he followed a transcript which had already been prepared with no objection from counsel in order to assist him. [31] In conclusion, the Judge’s questioning of Mr. Giovannini could not leave a reasonably-minded person with the impression that Mr. Giovannini did not have a fair trial. As Justice Lamer observed in Brouillard “ít is all a question of manner” and in my view there was nothing in the Judge’s manner that could leave the impression of an unfair trial. Did the Judge misapprehend material evidence? [32] Mr. Giovannini also argues that the Judge erred by misapprehending Michael Arsenault’s evidence respecting whether J.B. was intoxicated when he drove her home. Page 10 [33] The facts are that Michael Arsenault, a taxi driver, picked up J.B. from Mr. Giovannini’s residence in the early morning of June 4, 2012 to drive her home. Mr. Arsenault’s evidence was short and straightforward. He testified that he recalled picking up J.B. around 3:30 a.m. from Mr. Giovannini’s residence and that she was wearing pajama bottoms and carrying two bags. He said that he took her to the corner of Crosbie Road and Portia Place where she said she wanted to be dropped off and after she exited the taxi she walked down the street. He said he and J.B. did not converse beyond formalities during the drive. [34] The Judge referenced Mr. Arsenault’s evidence in paragraph 58 of his decision in the context of assessing whether J.B.’s credibility was impacted by her consumption of alcohol, saying that “[t]he taxi driver who drove J.B. home after the events…noted nothing unusual about her demeanor, and said that she was texting on her cell phone all the way home…”. [35] The Judge accepted Mr. Arsenault’s evidence as an indication that J.B. was not intoxicated and therefore her memory of the night’s events would not have been impaired. However, the transcript shows that Mr. Arsenault did not say that J.B. was texting on her cell phone, and that he did not specifically say that he had not noticed anything unusual about J.B.’s demeanour. [36] J.B.’s consumption of alcohol was not a live issue at trial, and Mr. Giovannini did not argue that it was. In fact he maintained that J.B. had not consumed alcohol at his place, although he now argues that the Judge’s misapprehension of Mr. Arsenault’s evidence was material to the believability of J.B.’s evidence, and thus could have affected the verdict. As well, J.B.’s alcohol consumption was not adverted to by either Crown or defence counsel in their final submissions. [37] Misapprehension of evidence was addressed by this Court in R. v. Vokurka, 2013 NLCA 51, aff’d 2014 SCC 22, [2014] 1 S.C.R. 498. In short, an imputed error based on misapprehension of evidence must be plainly identified and shown to have affected the result. [38] Mr. Arsenault’s evidence about driving J.B. home could support the inference that J.B. was not visibly intoxicated at the time Mr. Arsenault drove her home, thereby buttressing the Judge’s confidence that J.B. was not so intoxicated as to have impaired her memory of what had happened. Page 11 [39] In any event, the Judge’s reliance on Mr. Arsenault’s evidence was not material to his decision to accept J.B.’s evidence. Many factors informed the Judge’s decision to accept J.B.’s evidence as reliable and credible. The texting reference, while a misapprehension, was peripheral to the Judge’s evaluation of J.B.’s credibility – it did not go to the substance of the Judge’s decision that Mr. Giovannini was guilty of the offences charged beyond a reasonable doubt. As Mr. Giovannini has not shown that the misapprehension affected the Judge’s decisions, I would not give effect to this ground of appeal. [40] In the result, I would dismiss Mr. Giovannini’s appeal. __________________________ L. R. Hoegg J.A. I concur: _____________________________ B. G. Welsh J.A. I concur: _____________________________ C. W. White J.A.