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EVIDENCE - Hearsay rule - Exceptions - Character evidence - Inferences

Thursday, January 09, 2020 @ 6:25 AM  

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Appeal by the accused from conviction for second degree murder. The complainant was the appellant’s wife. The Crown argued the appellant stabbed her during an argument. The appellant claimed she committed suicide. The wife’s friend, B, was on the telephone with her when she overheard a loud argument between the wife and the appellant. She heard a scream and the phone line went dead. After attempting to call back several times, she eventually reached the appellant, who said that he had knocked the wife out and that she could not talk right now. B then called 911. The trial judge ruled that portions of the call could be played to the jury during B’s re-examination. When police came to the house, appellant put his hands behind his back and said, “Arrest me”. Seven years before the murder, the appellant received a conditional discharge after threatening to kill his wife. The trial judge found that the appellant had put his character in issue with the evidence of B that she would not have thought in a million years that the appellant would do anything to his wife to kill her and that the Crown was entitled to adduce evidence of the conditional discharge to neutralize the effect of the evidence of good character adduced by the defence. The appellant argued the trial judge erred in admitting evidence of his bad character during the Crown’s cross-examination of the appellant and in failing to properly instruct the jury on its use. He also disputed the admission of portions of the 911 call during B’s re-examination and argued the trial judge erred in instructing the jury on the use of his post offence conduct when police came to the house.

HELD: Appeal dismissed. B’s evidence that she would not have thought in a million years that the appellant would do anything to the wife to kill her was pure good character evidence and the Crown was entitled to adduce evidence to refute it. The trial judge properly balanced the probative value against the prejudicial effect of the conditional discharge evidence and took appropriate steps to mitigate any prejudice by prohibiting the evidence from being adduced as evidence of motive or animus, by strictly confining the scope of the evidence to be adduced and by giving the jury a cautionary instruction. The evidence of the 911 call was admissible under the res gestae exception since the 911 call was made soon after B’s conversation with the appellant while the stress of the event was ongoing. The hearsay dangers were also significantly reduced because the declarant was in the witness box, the recorded call was being played to her, and she could be cross-examined concerning what she said. Ultimately, however, the Crown’s request to play the 911 call was not to establish the truth of what she said during the call, but to respond to the defence allegation that she fabricated her evidence about what the appellant said during the call. The trial judge did not err in the exercise of his discretion in permitting the Crown to adduce the evidence in re-examination, because the defence alleged that the witness fabricated her testimony. Any potential prejudice was addressed by giving the defence the opportunity to cross-examine B concerning the 911 call. Nowhere in the judge’s charge was the jury instructed to consider the 911 call as part of the res gestae and for the truth of its contents. The trial judge did not misdirect the jury on the use of the post-offence conduct evidence. While requiring the jury to determine whether the appellant was conscious that he committed the offence before they could use the post-offence conduct evidence to decide if he committed the offence was problematic, this error did not amount to reversible error on its own.

R. v. Mullin, [2019] O.J. No. 5698, Ontario Court of Appeal, G.R. Strathy C.J.O., D.H. Doherty and M.H. Tulloch JJ.A., November 12, 2019. Digest No. TLD-January62020008