J. NOVA SCOTIA COURT OF APPEAL Citation: R. v. C., 2004 NSCA 135 Date: 20041110 Docket: CAC 217804 Registry: Halifax v. Her Majesty the Queen Respondent Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on August 7, 2008. Restriction on publication: pursuant to s. 486(3) of the Criminal Code Judges: Bateman, Cromwell and Saunders, JJ.A. Appeal Heard: October 5, 2004, in Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of Cromwell, J.A.; Bateman and Saunders, JJ.A. concurring. Counsel: Brian Stephens, for the appellant Kenneth W.F. Fiske, Q.C., for the respondent Publishers of this case please take note that Section 486(3) of the Criminal Code applies and may require editing of this judgment or its heading before publication. The subsection provides: (3) Order restricting publication Subject to subsection (4) where an accused is charged with (a) an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347, (b) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (c) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988, the presiding judge or justice may make an order directing that the identity of the complainant or of witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way. Reasons for judgment: I. Introduction: [1] A cocaine fuelled encounter between the appellant and the woman with whom he was living resulted in his conviction for assault and sexual assault. He appeals the sexual assault conviction, submitting that it is unreasonable, is based on misapplication of the burden of proof and that the judge=s reasons are so deficient so as to constitute an error of law. [2] In my view, the appeal should be dismissed. There was ample evidence which, if believed, justified the conviction. The judge=s reasons, while brief and far from masterful, do not disclose misapplication of the burden of proof and are not so deficient as to themselves constitute an error of law. II. Overview of the Evidence: [3] At the brief trial, three witnesses, C.J. (who was the alleged victim), police officer and the appellant, testified. [4] C.J. said that she and the appellant had been in an intimate and drug related relationship beginning in the summer of 2003. They met while getting high on cocaine and lived together for while after the appellant A... moved in [to her home] and wouldn=t leave ...@. When they first met, he had $6000 that he had received from selling truck which he spent on cocaine to share with her. As result, the appellant thought and C.J. apparently agreed, that she owed him place to live. [5] The offence was alleged to have occurred on the evening of Monday, November 3, 2003 at C.J.=s home in [name of place changed]. This was not another quiet evening at home [6] According to C.J., her 18 year old daughter and friend had come from the city to spend the preceding weekend with her. While the appellant was away from the house tending to some roofing work, C.J. decided to drive her daughter and friend home to the city. As they were preparing to leave by car, the appellant arrived, opened the car door and said words to the effect that C.J. was not going into town without him. He grabbed the screwdriver that was used to start the car instead of key. C.J. went into the house, found smaller screwdriver and then returned to her vehicle to try to start it. According to her, this prompted the appellant to puncture the tires of her car with the screwdriver. She ran back into the house, puncturing one of his tires as she went. At some point in the argument, the appellant threatened to show C.J.=s daughter syringe which C.J. had been using to inject drugs. This prompted C.J. to tell the appellant that they were through. [7] C.J. locked the appellant out of the house, but he kicked in the door. This led to confrontation between them involving knife which ended when the daughter intervened. It was then resolved that C.J. and the appellant would both drive the daughter and her friend home, which, after waiting for the arrival of serviceable vehicle, they did. [8] On the way back, C.J. said that she wanted to get high and so they went to [name of place changed] (after an unsuccessful stop in [...]) and obtained some crack cocaine which they shared upon arriving home in [name of place changed]. They wanted more cocaine and returned to [...] and obtained some which they smoked in the car. They also took some home and smoked there. The appellant then went up to bed. [9] To this point in the story, the evidence of C.J. and the appellant is quite consistent. The appellant testified about the argument when he discovered C.J. was about to leave upon his return home. He admitted that in the course of the argument, he stuck screwdriver through one of her driver=s side tires as she had done to one of his truck tires. He also admitted kicking in the door after C.J. locked him out. His evidence relating to the confrontation with the knife, the threat to show the daughter the syringe and the decision to go together to take the daughter and friend back to the city was similar to C.J.=s. The appellant also agreed that after dropping off her daughter, they wanted to get some cocaine, that they obtained some and smoked it on the way home to [name of place changed] and finished it off once they arrived. As C.J. had testified, the appellant said they then left home to get some more cocaine which they began consuming while away and finished on their return home. [10] There were some differences in their evidence even to this point, however. The appellant=s evidence was that he and C.J. had agreed that he would not let her go into the city by herself. He said that this was part of their effort to stop using cocaine because every time they went into the city alone, they would obtain cocaine. This was his explanation as to why his discovery that C.J. was planning to take her daughter and friend into the city and then return alone led to an argument. C.J., however, denied that the appellant=s concern was that she stop using cocaine, testifying that his concern was A.. more like that [she] would be doing some without him ...@. With respect to the syringe incident, the appellant said that he raised this with C.J.=s daughter hoping that it would provide A... some motivation for [C.J.] to stop using...@ C.J., on the other hand, said that this was an attempt to make her daughter angry with her and prompted her to tell the appellant that their relationship was over. [11] Both the appellant and C.J. testified about the nature of their sexual relationship. (The defence had applied successfully under s. 276(2) and 276.1 of the Criminal Code of Canada, R.S.C. 1985, c. C-46, to admit such evidence.) C.J. testified that after they used cocaine, the appellant generally wanted to have sex and that she generally did not want to go to bed right away. She said that sometimes they had sex and others they did not. She agreed that there were times when he would try to change her mind and convince her to have sex and that he was sometimes successful if he was nice and showed her some affection. His evidence was to the effect that C.J. generally would stay up after using cocaine looking for crumbs and scraping the pipes trying to get more cocaine and that it was hard to get her to come to bed. When she would come to bed, he said that she was normally mad at him for not getting more cocaine. He would try to initiate sex by holding her, touching her and performing oral sex. His evidence was that generally these efforts were successful and they would have sex and she would apparently forget about wanting more cocaine. It was common ground between the witnesses that the police had been called on previous occasions and that the appellant had left the house for short times as result. There was no suggestion of prior incidents of sexual violence. [12] At the point in the story at which the appellant goes to bed, his testimony and that of C.J. becomes more markedly different. C.J. said that when she came up to bed, she changed into knee length night gown and said to the appellant ADon=t touch me. don=t want ... nothing has changed. don=t want relationship with you. don=t want you in my life. hate you. Just stay away from me.@ He kept trying to put his hands on her, and she kept telling him to leave her alone and pushing him away. He then took hold of her legs, pulled them apart and performed oral sex on her. He had hold of her legs so that she could not move. She tried to push him away and pull herself away but given his weight of about 220 pounds and hers of around 110, she was unable to do so. She was almost crying and told him to stop Aprobably about ten times.@ He put his penis in her vagina and started having intercourse and kept trying to kiss her. She kept telling him to leave her alone A... anywhere from five to twenty times, more like ten to twenty times.@ He started performing oral sex again and then again put his penis in her vagina. Throughout, she was telling him to stop. He finally asked her if she really wanted him to stop and she said she did and he rolled off, saying something to the effect that Asomebody very near and dear to you [who C.J. took to be her daughter] is going to get hurt.@ [13] The appellant=s evidence was that the evening unfolded in accordance with the pattern set on other occasions. He went to bed first and then tried to convince C.J. to come to bed. She came to bed about half or three quarters of an hour later. He said that C.J. A..was being stubborn and blaming [him] about telling her daughter about the syringe@ and they argued about that. He tried to initiate sex. According to his evidence, Ashe was still being stubborn and angry, which was normal routine.@ He performed oral sex on her and then had intercourse. At that point, he got A... the feeling that she wasn=t into it as much as she normally [was].@ He asked her if there was something wrong and she said ANo, I=m not into it. I=m still mad at you...@ and he stopped and went to sleep. He said that during the oral sex, she was moaning and she raised her legs to give him better access and that she A.. was actually pushing [his] head down. ... @. He agreed that he had initiated the sexual activity, that she was stubborn and that she had said to him that the relationship was over because of the syringe incident. He agreed that he could pin her down if he wanted to given their respective sizes. He denied, however, that she had told him to stop other than in response to his question as to whether something was wrong. [14] C.J. called the police. One of the officers who responded testified that he entered the house through Abusted@ door and found C.J. curled up on the couch with blanket around her looking shaken and upset and found the appellant upstairs in bed asleep. III. The Decision of the Trial Judge: [15] The judge=s oral reasons for conviction, after setting out the nature of the charges, are as follows: When we come to the second count, the relationship between [C.J.] and D.S.C. had gone on for period of time since August of >03 in which they did drugs in the form of cocaine and crack cocaine on numerous occasions, and also carried out sexual acts on numerous occasions between that time and November 3rd. On the particular day in question, D.S.C. had informed [C.J.]=s daughter about her drug use by telling her about finding syringe, which upset [C.J.] to the point that she wanted an end to the relationship and on that evening, following couple of sessions in which cocaine was used again, D.S.C. believing the same practice of sexual behaviour could take place, attempted to carry out that behaviour to which [C.J.]=s evidence is that she objected on numerous occasions. And in assessing the credibility of both D.S.C. and [C.J.], I=m satisfied that where there is any variance in the evidence of the two parties, accept the evidence of [C.J.] in this regard. And having regard to the admissions of D.S.C. with respect to sexual behaviour that evening, I=m satisfied that it wasn=t consensual and find him guilty beyond reasonable doubt on the second count. [16] Somewhat restated, the appellant advances three main submissions: first, that the verdict is unreasonable; second, that the judge misapplied the burden of proof by comparing the stories of the complainant and the appellant rather than by asking whether the case had been proved beyond reasonable doubt in light of all of the evidence; and third, that the judge=s reasons for judgment are inadequate to the point that they constitute an error of law because they prejudice the appellant=s right to appellate review. V. Analysis: 1. Unreasonable verdict: [17] The submission concerning the unreasonableness of the verdict has no merit. The test for appellate review of the reasonableness of verdict is whether it is one which properly instructed jury or trial judge, acting judicially, could reasonably have reached: R. v. Corbett, 1973 CanLII 199 (SCC), [1975] S.C.R. 275 at 282; R. v. Biniaris, 2000 SCC 15 (CanLII), [2000] S.C.R. 381 at para. 36. The evidence of the complainant, if accepted, provided an ample basis for judge, acting judicially, to convict the appellant. This is not one of those Arare instances@ in which the trial court=s assessment of credibility A...cannot be supported on any reasonable view of the evidence.@: R. v. Burke, 1996 CanLII 229 (SCC), [1996] S.C.R. 474 at para. 2. Burden of Proof and Inadequacy of Reasons: [18] The remaining two submissions are interrelated. They may be summarized as arguing first, that the judge=s reasons disclose legal error in the application of the W.(D.) principle and second, alternatively, the reasons are so inadequate that they preclude meaningful appellate review of whether the judge properly applied the W.(D.) principle. [19] The principle in the Supreme Court of Canada=s decision in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] S.C.R. 742 is straight-forward: the ultimate issue in any criminal case is not who the jury (or judge) believes but whether, in light of all of the evidence, reasonable doubt about guilt persists. As Binnie, J. put it R. v. Sheppard, 2002 SCC 26 (CanLII), [2002] S.C.R. 869 at para. 65, the ultimate issue is not whether the judge believed the complainant or the appellant or part or all of what they each had to say. The issue at the end of the trial is not credibility but reasonable doubt. [20] It must be remembered that W.(D.) was not concerned with reasons for judgment, but instructions to jury on reasonable doubt. This is important because trial judge=s reasons cannot and should not be read or analyzed as if they were instructions to jury: see R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.) at 204. Instructions are to assist the jury in reaching verdict; reasons for judgment explain why verdict was reached: ibid The test for legal error in judge alone case like this one is not the same as would apply to judge=s charge to jury. The difference is that the jury must receive proper instructions on the law, including this principle, whereas trial judge in giving decision is assumed to know the relevant legal principles absent some basis in the reasons or the trial record for thinking that an error has been made. [21] That said, however, there is no question that the W.(D.) principle applies equally to the reasoning processes of judges and juries. trial judge will be found to have erred, if upon review of the judge=s reasons in light of the trial record, it appears that he or she simply chose between alternative versions offered by the Crown and the defence and, having done so, convicted if the Crown=s version was preferred: see, for example, R. v. Mah (2002), 2002 NSCA 99 (CanLII), 207 N.S.R. (2d) 262; N.S.J. No. 349 (Q.L.)(C.A.). Failure to specifically refer to the W.(D.) principle is not fatal on its own in judge alone trial. The W.(D.) principle is not magic incantation which trial judges acting as triers of fact must mouth to avoid appellate intervention. The question for the appellate court in judge alone case is whether, upon consideration of the whole of the judge=s decision and the evidence at trial, it appears that the judge did not apply the proper test and therefore did not apply his or her mind to the possibility that despite having rejected the evidence of the respondent, there might nevertheless be reasonable doubt: R. v. Brown (1994), 1994 CanLII 7609 (NS CA), 132 N.S.R. (2d) 224; Sheppard at para. 65. [22] The appellant submits that the judge=s reasons show that he fell into the trap of simply choosing the version he preferred. respectfully do not agree. The judge=s reasons, read in light of the record, show that he addressed his mind not only to whose evidence he accepted where the evidence of the complainant and the appellant conflicted, but that he applied the reasonable doubt standard to the whole of the evidence. [23] It is not an error for judge to make finding of credibility as between the complainant and the accused, particularly where they provide the bulk of the evidence as to what happened. This is necessary part of the judge=s duty. While it is not the end of the journey of decision-making, it is necessary intermediate step along the way. Indeed, the first two elements in proper jury instruction on this issue as set out in W.(D.) assume that the jury should decide whether or not they believe the exculpatory evidence of the accused. Those first two steps are: First, if you believe the evidence of the accused, obviously you must acquit. Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. [24] Accordingly, it was not an error for the trial judge here to assess the credibility of the accused in relation to that of the complainant. His statement that AI=m satisfied that where there is any variance in the evidence of the two parties, accept the evidence of [C.J.] ... with respect to sexual behaviour that evening@ was necessary part of the task he had to perform on his way to reaching conclusion. [25] An error under the W.(D.) principle is committed where the judge treats the matter as concluded once this assessment of credibility has been completed. To do so misses the third and critical step in the application of the burden of proof. As described in W.(D.) that last crucial step is as follows: Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond reasonable doubt by that evidence of the guilt of the accused. [26] The key question in this case is whether the trial judge erred by failing to take this last critical step. In my view, his reasons, read in conjunction with the record, show that he did not. After doing his credibility assessment, the judge said: AAnd having regard to the admissions of D.S.C. with respect to sexual behaviour that evening, I=m satisfied that it wasn=t consensual and find him guilty beyond reasonable doubt. ...@ This statement, read in light of the evidence which the judge had just finished hearing, persuades me that the judge went on after making his credibility finding and considered whether he had reasonable doubt in light of the whole of the evidence. [27] The only live issue at this trial was whether the Crown had proven the absence of C.J.=s consent. The complainant=s evidence was that she did not, in fact, consent and that her lack of consent was consistently and clearly communicated to the appellant. While his evidence was to the contrary, the appellant agreed with number of propositions that the judge apparently accepted as the Aadmissions@ to which he referred. These Aadmissions@ no doubt included the following: 1. The complainant was very upset by what the appellant had done in relation to her daughter; 2. She had told him in bed before he initiated sexual activity that the relationship between them was over; 3. She was being Astubborn@ in relation to the sexual activity which he wished to initiate; 4. He did not claim that she had expressly consented to the sexual activity; 5. He said that Ait was normal@ for her not to want to have sex with him; 6. While claiming that the pattern that night was their usual pattern, he admitted that the incident with the daughter was Ahuge issue@ for C.J. and that no incident like that involving her daughter had arisen before; 7. While he claimed that she had responded to his performing oral sex, he admitted that she failed to respond as usual to intercourse and told him that she was still mad at him. [28] In my opinion, the judge=s admittedly short-hand reference to the evidence which he had just heard puts to rest any suggestion that he simply chose the version he preferred and convicted. Rather, it shows that the judge applied the reasonable doubt standard to the whole of the evidence as he was obliged to do before entering the conviction. His reference to the appellant=s testimony, and in particular the appellant=s Aadmissions@ in relation to the reasonable doubt standard, show, in my view, that the judge applied the correct standard of proof to the whole of the evidence. It follows that in my view, the judge=s brief reasons, read in light of the brief and quite straight-forward evidence at trial, do not disclose that he committed the error of law of failing to apply the reasonable doubt standard to the whole of the evidence. [29] The appellant relies on R. v. Rowe, [2004] N.S.J. No. 244 (Q.L.)(C.A.), but in my view that case is readily distinguishable from this one. In Rowe, eight witnesses testified. The judge=s reasons simply expressed preference for the evidence of four of them over that of the accused and did not indicate that the reasonable doubt standard had been applied to the evidence as whole. The Court concluded in Rowe that A... it might well be supposed that the trial judge convicted the appellant after merely comparing her version of events to that offered by the Crown witnesses, and favouring the latter.@ (at para. 4) As have said earlier, these concerns do not arise from the record and reasons in this case. b. Inadequate Reasons: [30] The appellant=s alternative submission is that the trial judge=s reasons are so inadequate that it is not possible for an appellate court to conduct proper appellate review of his decision. [31] This submission is based on the Supreme Court=s decision in Sheppard. It was held in that case that the inadequacy of the trial judge=s reasons was an error of law because it prevented the appellate court from assessing whether the trial judge had addressed his mind, as he was required to do under the W.(D.) principle, to the possibility that despite having rejected the evidence of the accused, there might nevertheless, given the peculiar gaps in the Crown=s evidence in that case, be reasonable doubt as to the proof of guilt: at para. [32] Deficiency of reasons is not free-standing ground of appeal. As Binnie, J. put it in Sheppard, an appellate court is not given the power to intervene simply because it thinks the trial court did poor job of expressing itself. Instead, functional test is to be applied which requires the appellant to show not only that the reasons are deficient, but also that this deficiency has occasioned prejudice to the exercise of his or her legal right to an appeal in criminal case: Sheppard at paras. [33] The application of this functional test depends on all of the circumstances of the particular case. As Binnie, J. said in Sheppard at para. 46: 46 These cases make it clear, think, that the duty to give reasons, where it exists,arises out of the circumstances of particular case. Where it is plain from the record why an accused has been convicted or acquitted, and the absence or inadequacy of reasons provides no significant impediment to the exercise of the right of appeal, the appeal court will not on that account intervene. On the other hand, where the path taken by the trial judge through confused or conflicting evidence is not at all apparent, or there are difficult issues of law that need to be confronted but which the trial judge has circumnavigated without explanation, or where (as here) there are conflicting theories for why the trial judge might have decided as he or she did, at least some of which would clearly constitute reversible error, the appeal court may in some cases consider itself unable to give effect to the statutory right of appeal. In such case, one or other of the parties may question the correctness of the result, but will wrongly have been deprived by the absence or inadequacy of reasons of the opportunity to have the trial verdict properly scrutinized on appeal. In such case, even if the record discloses evidence that on one view could support reasonable verdict, the deficiencies in the reasons may amount to an error of law and justify appellate intervention. It will be for the appeal court to determine whether, in particular case, the deficiency in the reasons precludes it from properly carrying out its appellate function. (Emphasis added) [34] Important considerations in applying the functional test are whether there are difficult points of law on which no conclusion is expressed or critical factual findings on confused or contradictory evidence which are unexplained and which are not otherwise intelligible from the record: Sheppard at paras. [35] Given the emphasis in Sheppard on the point that the application of the functional test depends on the circumstances of the particular case, it is appropriate to review the facts and reasons in Sheppard in further detail. [36] Sheppard was case in which it was argued, as it is here, that the trial judge=s reasons precluded meaningful appellate review of whether the W.(D.) principle had been respected. [37] In Sheppard, the accused was carpenter charged with possession of two stolen windows. He had had stormy relationship with his girlfriend from whom he had separated on bad terms. He had been renovating his house. Two days after the separation, the girl friend told the police that he had confessed to her to stealing two windows from local supplier. The supplier confirmed that two windows were missing, although this had not been noticed until the supplier checked his inventory after being contacted by the police and there was no way of telling how long they had been missing. The windows had been kept on truck parked across the road from the shop. Employees and passers-by had access to the area and there had been no sign of forced entry. At trial, the girlfriend=s evidence was the only evidence connecting the accused to the missing windows. While her evidence was that the accused had said that he stole the windows to use in his house, there was no evidence that search had been made or that stolen windows had been found in the accused=s possession. She did not deny that two days before she went to the police, she said to the accused: AI hope you live your life in misery. If have anything to do with it, you will.@ The accused testified and asserted his innocence. [38] The trial judge convicted the accused. His reasons in their entirety were as follows: AHaving considered all the testimony in this case, and reminding myself of the burden on the Crown and the credibility of witnesses, and how this is to be assessed, find the defendant guilty as charged.@ [39] The Supreme Court of Canada agreed with majority of the Court of Appeal of Newfoundland and Labrador that the reasons were inadequate and constituted an error of law. Noting that not only had the accused testified and denied the charge but that the allegedly stolen property was never found in the accused=s possession, the Court said that it shared the Abewilderment@ of the accused and the majority of the Court of Appeal as to what pathway through the evidence the judge could have taken to reach finding of guilt, given these weaknesses in the Crown=s evidence: see paras. 59 62. The Court also agreed that the reasons, which it characterized as so generic as to be no reasons at all, prevented any meaningful appellate review of whether, despite the rejection of the accused=s evidence but given the peculiar gaps in the Crown=s evidence, there was reasonable doubt on the whole of the evidence. note that in Sheppard, even the trial judge=s rejection of the accused=s evidence and the acceptance of the girlfriend=s testimony are not explicit but rather must be inferred from the result which he reached. [40] The Court in Sheppard made it clear that not every failure by trial judge to fully explain the pathway taken to the result reached will constitute an error of law. Binnie, J. said at para. 60 that A... in the vast majority of criminal cases both the issues and the pathway taken by the trial judge to the result will likely be clear to all concerned. Accountability seeks basic fairness, not perfection, and does not justify an undue shift in focus from the correctness of the result to an esoteric dissection of the words used to express the reasoning process behind it.@ [41] The reasons of the judge and the state of the record in this case are entirely different than in Sheppard. The reasons here cannot be said to be so generic as to be no reasons at all. The judge=s reasons provide an overview of the factual background, correctly identify the issue as to absence of consent, make finding of credibility in relation to the conflicting evidence of the only two substantive witnesses, advert to the evidence of the accused and apply the reasonable doubt standard to the whole of the evidence. Each of these elements was absent in the Sheppard case. The record in this case does not have any of the obvious gaps or other highly troublesome aspects found in Sheppard. [42] Applying the Sheppard principles to the case at hand, do not think that the reasons given by the judge in this case are so inadequate as to constitute an error law. There was only one live issue in this case, that of the absence of consent. The evidence was not complicated or confused and there were no unusual gaps in it or difficult issues of law to be resolved. The reasons, while very brief, are not simply generic. They make clear that the accused=s evidence was considered not only in light of the question of credibility but also of the ultimate issue of reasonable doubt. The reasons read in conjunction with the brief record make clear the pathway through the evidence and law which the judge took to arrive at his conclusion. As demonstrated by the discussion of the preceding submissions of the appellant, the reasons do not preclude meaningful appellate review of whether the judge properly applied the burden of proof to the evidence as a whole. [43] In summary, these reasons, while certainly open to criticism, do not in my view, either disclose an error of law or preclude meaningful appellate review in the particular circumstances of this case. VI. Disposition: [44] I would dismiss the appeal. Cromwell, J.A. Concurred in: Bateman, J.A. Saunders, J.A.
The appellant was convicted of sexual assault, with the only live issue at trial being whether the Crown had proved the absence of the complainant's consent beyond a reasonable doubt. Appeal dismissed; the judge's reasons disclosed that he applied the reasonable doubt standard to the evidence as a whole; although the reasons for judgment were very brief and open to criticism, they did not preclude meaningful appellate review. The test for legal error in a judge alone case is not the same as would apply to a judge's charge to a jury on the issue of reasonable doubt. It was not an error for the judge to assess the credibility of the appellant in relation to that of the complainant as long as he went on to take the next step, as he did in his 'short-hand reference' to the evidence.