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EVIDENCE - Hearsay rule - Necessary and reliable evidence

Wednesday, May 22, 2019 @ 8:41 AM  

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Appeal by the accused from conviction for attempted robbery, having his face masked with intent to commit an indictable offence, and possessing a pickaxe for a purpose dangerous to the public peace. B admitted to police that he drove the get-away truck and identified the appellant as the attempted robber. At trial, B claimed to have no recollection of the events of the day of the attempted robbery, blaming his poor memory on his addiction to methamphetamines. The trial judge ruled that B’s out-of-court statement met the test for threshold reliability and admitted it into evidence. The statement was crucial for the conviction. The appellant argued that B’s recorded statement ought not to have been admitted into evidence and that the judge erred in principle in his approach to the admissibility analysis.

HELD: Appeal allowed. New trial ordered. The judge did not approach the question of threshold reliability in accordance with the principles set out in Bradshaw. The judge erred in his assessment of both procedural and substantive reliability. The judge erred in fact and in law in concluding that the appellant had a full opportunity to test the material portions of B’s statement as B’s purported memory lapse insulated him, to a significant extent, from the more wide-ranging cross-examination that would otherwise have occurred. The judge erred in not directing his mind to the question of whether the limited cross-examination that was available in the circumstances provided a satisfactory basis to test and evaluate the truthfulness of the hearsay statement, either alone or in tandem with evidence that provided elements of substantive reliability. In his analysis of the substantive reliability of the statement, the evidence the trial judge considered to be corroborative did not meaningfully advance the threshold reliability inquiry. The evidence of B’s recent association with the appellant should not have been considered at the threshold stage as it was corroborative of the fact they knew one another but not corroborative of the truthfulness of B’s identification of the appellant as the attempted robber. The judge failed to consider evidence that he ought to have considered and failed to take into account the only evidence that could, on an application of the principles in Bradshaw, have properly been considered corroborative evidence.

R. v. Newsham, [2019] B.C.J. No. 630, British Columbia Court of Appeal, G.J. Fitch, J.J.L. Hunter and S.A. Griffin JJ.A., April 15, 2019. Digest No. TLD-May202019006