Crown led this evidence from common law wife (complainant) of client: “We were drunk. I blacked out. When I came to, he (client) smacked me. Then another guy smacked him.” Complainant suspected to be hostile. Crown asked no more questions. Defence asked none. Crown argued that the unanswered and unchallenged case led proved assault, as “smack” necessarily meant unconsented to application of force. Defence argued that without any context, “smack” could not found criminal conviction, and was a Crown attempt to reverse the onus of proof. Client acquitted. Court agreed that conviction unsafe where judge necessarily left without any real understanding of what happened. Crown must at least ask the necessary question.
July 2, 2011