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EVIDENCE - Admissibility - Confessions and statements by the accused

Monday, June 01, 2020 @ 9:31 AM  


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Appeal by the accused, Moir, from a conviction for first degree murder. In 2006, hikers discovered an apparent burial site. Police and forensic investigators found a decomposed body, later identified as Acorn, and estimated that her death occurred in autumn, 2005. The left side of the victim’s skull was crushed. No jewelry, clothing, fingerprinting or DNA was recovered at the scene. Acorn was identified through dental records. Witnesses associated Acorn, age 14, with drug use and the sex trade. Several witnesses associated Acorn with the accused, age 21, and his father, West, in summer and early fall of 2005. West had a history of sexual relations and associations with young women and a lengthy criminal record. The accused had a history of violence toward young women but no prior convictions. Information suggested that the accused facilitated the introduction of young women to his father. In late 2006, police commenced an undercover “Mr. Big” operation, posing as criminal figures recruiting the accused to join their organization. Over the ensuing months in which undercover officers gained the accused’s trust, the accused initially mentioned helping his father dispose of a body before eventually implicating himself and his father in the killing of Acorn and disposal of her body in detailed fashion. The accused and his father were arrested in March 2007 and charged with first degree murder. The accused’s statements to police were admitted following a voir dire and the accused was convicted following a jury trial. The accused appealed.

HELD: Appeal dismissed. The trial judge did not err in assessing the reliability of the accused’s confession to undercover police. The law governing Mr. Big confessions established by the Supreme Court of Canada in Hart was not altered or superseded in the subsequent Bradshaw ruling. It followed that the trial judge did not apply the wrong test in assessing probative value versus prejudicial effect in accordance with Hart. No error arose while considering police holdback evidence and other confirmatory evidence as indications of reliability of the accused’s statement, as the trial judge primarily used such evidence as relevant to the general narrative of events. The detail and sequence of events, and the consistencies in the accused’s confession, led the trial judge to find the statement logically consistent and plausible. The trial judge did not err in finding that internal consistencies bolstered the statement’s reliability as indicative of genuine recollection rather than fabricated repetition. In admitting the statement, no improper reliance on the absence of an express denial by the accused during a recorded conversation with West occurred.

R. v. Moir, [2020] B.C.J. No. 674, British Columbia Court of Appeal, M.V. Newbury, R. Goepel and G.B. Butler JJ.A., April 23, 2020. Digest No. TLD-June12020002