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EVIDENCE – Admissibility - Photographs and videos – Hearsay rule - Exceptions

Thursday, November 05, 2020 @ 6:20 AM  

Lexis Advance® Quicklaw®
Appeal by the accused from conviction for second-degree murder. The victim was shot outside a nightclub. The main issue at trial was the identity of the shooter. Several witnesses identified the appellant as the shooter, either through a photo lineup or through in-court dock identification, including the victim’s teammate, D. D, who testified at trial, made his first utterances immediately after the shooting, at the crime scene. D clearly identified the shooter as the man wearing the white polo shirt. Forty minutes later, he observed three individuals walking down a street and spontaneously pointed out the appellant, telling police that this was the shooter. Although there was some eyewitness evidence suggesting the shooter matched the description of the appellant’s friend, M, the trial judge found that M could not have been the shooter because a timeline video showed him walking on a sidewalk when the shots were fired.

HELD: Appeal dismissed. The photographs taken from social media that indicated the appellant had access to a handgun were properly admitted as they were logically relevant to the issue of identity. It was within the trial judge’s purview to compare the gun used in the shooting with the social media photos and draw the inference that the appellant possessed the exact type of handgun used in the shooting and was thus likely the shooter. The photos were circumstantial evidence on the issue of identity. The Crown did not seek to rely on the evidence for an improper purpose nor was there anything in the trial judge’s reasons that hinted he relied on this evidence for an improper purpose. The trial judge was not required to hold a voir dire on the admissibility of D’s prior consistent statements and did not use them for an impermissible purpose. The statements were properly admitted under the res gestae exception to hearsay. The utterances, however, need not engage the hearsay rule at all and were more appropriately characterized and admissible as part of the chain of identification evidence, not for the truth of their contents but as original evidence. Since D testified at trial, evidence of prior identification, including statements made, could be admitted as an exception to the rule against prior consistent statements under a chain of identification evidence. The verdict was also not unreasonable.

R. v. Lugela, [2020] A.J. No. 1022, Alberta Court of Appeal, M.S. Paperny, E.A. Hughes and D. Pentelechuk JJ.A., September 30, 2020. Digest No. TLD-November22020008