Focus On

Criminal Law - Evidence - Admissibility - Prejudicial evidence - Confessions and statements by the accused - Witnesses - Examination - Cross-examination - Range of examination

Thursday, July 21, 2016 @ 8:00 PM  


Appeal by the accused, Worme, from a conviction for first degree murder. In 2008, the victim was tortured and beaten to death in the basement of his home during a robbery. The accused and his girlfriend were invitees of the victim earlier in the evening. The victim awoke later in the evening to find the accused and two others stealing from him. A physical confrontation ensued, during which the victim was beaten to surrender his bank card PIN number. The accused and the other two perpetrators were targeted in the ensuing police investigation. Police learned that one of the other perpetrators called his girlfriend during the assault and told her he was going to kill the victim. After the killing, the two accomplices turned on the accused and stabbed him. He recovered after several days in hospital. Police ran a Mr. Big operation on the accused, in which an undercover police officer posed as a criminal underworld figure in order to gain the accused’s trust. The operation lasted two months and involved 29 scenarios. During the operation, the accused’s account of his role in the killing evolved from being a bystander to full participation. The accused was tried separately prior to the other two suspects. The other two suspects were eventually convicted of manslaughter. At trial, the accused testified and recanted his confession. He maintained that his original account of being a bystander was truthful. He testified that he exaggerated his role to impress the Mr. Big operatives to gain membership into their criminal gang. The accused was convicted by a judge sitting with a jury. The accused appealed.

HELD: Appeal allowed. The pivotal issue for the jury was whether the accused’s confession was true. Defence counsel objected to police testimony stating the accused spoke honestly. The objection was sustained, but the jury was not told to disregard the officer’s opinion. On cross-examination, the police witness disagreed with the proposition that Mr. Big scenarios resulted in false confessions. The trial judge excused the jury and ruled the question to be irrelevant. The jury was instructed to strike the question from their memories, as what had occurred in other cases was not relevant. The police evidence had intruded on the jury’s mandate regarding the truthfulness of the confession by assuring jurors Mr. Big scenarios were employed to elicit truthful statements and safeguard against false confessions. The police evidence undermined the accused’s defence that his confession was nothing more than bravado and effectively shifted the burden of proof to the accused. The prejudicial effect of the police evidence thus outweighed its probative value. Once the Mr. Big confession was introduced to the jury with a stamp of reliability, the only effective means of impeachment was through reference to false confessions in other murder cases. The trial judge thus erred in prohibiting the proposed cross-examination. The curative proviso was not available to save the conviction and a new trial was ordered.