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EVIDENCE - Hearsay rule - Exceptions - Dying declarations

Wednesday, May 01, 2019 @ 8:15 AM  


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Appeal by Nurse and Plummer from their convictions, by jury, of first degree murder. The victim was stabbed 29 times outside a house he rented to Nurse. The two perpetrators fled when a motorist approached. As EMS personnel tried to save the victim’s life, Nurse approached. The victim’s blood was on his hand and clothing. The victim gestured to his injuries and then to Nurse. Plummer was apprehended down the road from the murder scene. He was covered in the victim’s blood and had a cut on his hand. A knife recovered from a nearby creek had the victim’s blood on it and Plummer’s DNA on the handle. Nurse told inconsistent stories at the scene and during the investigation. He eventually told police Plummer was the killer. In text messages between the appellants they discussed luring the victim to the home to kill him and steal his vehicle. It took a year for the police to recover the deleted messages through forensic analysis after the software to analyze the data had been updated and improved.

HELD: Appeal dismissed. The trial judge did not err in admitting the victim’s gestures under the dying declaration and spontaneous utterance traditional exceptions to the hearsay rule. Both exceptions sufficiently addressed the reliability concerns raised by the circumstances of the case. It was open to the trial judge to conclude the victim’s gestures could convey the strong incriminatory assertion that Nurse was involved. The victim’s gestures were an assertion by conduct. They were made in response to being attacked where there was no realistic concern about concoction or fabrication. Ultimately, it was for the jury to decide what the victim was attempting to convey by his gestures. The Crown did not encourage the jury to reason back from a conclusion of guilt. There was nothing improper in asking the jury to consider the victim’s gestures in the context of all the evidence at trial. The trial judge did not err in finding the second analysis of the appellants’ cell phones using updated software did not violate their rights under s. 8 of the Canadian Charter of Rights and Freedoms. The second analysis was not a search that required a further warrant. The re-inspection of the raw data harvested from the appellants’ devices did not involve a further invasion of privacy.

R. v. Nurse, [2019] O.J. No. 1636, Ontario Court of Appeal, D.H. Doherty, D.M. Brown and G.T. Trotter JJ.A., April 2, 2019. Digest No. TLD-April292019009