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PROCEDURE - Trial judge’s duties

Wednesday, March 14, 2018 @ 8:37 AM  

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Appeal by the accused from convictions for attempted murder, uttering a threat to cause death, and break and enter while committing attempted murder. The victim awoke in his home finding the appellant in his bedroom holding a long, heavy flashlight. A struggle ensued. The victim eventually fled his home and the appellant then stole his truck. During a search of the appellant’s home four months later, police found a number of handwritten notes. The appellant acknowledged writing one of the notes which stated that the victim was one of four people to be shot for killing and drugging and raping young girls. He denied writing a second incriminating note. The victim had brought two photographs depicting the two handwritten notes in question to the RCMP prior to the execution of the search warrant. Defence counsel questioned the victim about the photographs of the notes police seized from the appellant’s apartment and asked who gave the victim the photographs. When the witness initially refused to answer the question, the trial judge inquired as to the relevance of the question. Defence counsel explained that the question was relevant to the defence position that some of the notes might have been forged and planted and the continuity of the evidence could go to weight the trial judge would assign to it. When the witness still refused to answer the question after being directed to do so by the trial judge, the trial judge took no further steps to elicit an answer from him but warned the witness that he might be cited for contempt. After the trial, the trial judge found that the answer to the question would not have had much bearing on the trial and thus decided not to proceed with any further sanction against the witness. The appellant argued that the trial judge’s failure to follow the correct contempt procedure was an error which affected the fairness of the trial by precluding a legitimate line of inquiry relevant to the defence.

HELD: Appeal allowed. New trial ordered. The trial judge’s refusal to take any further steps to elicit an answer from the witness was an error of law. A witness’s refusal to answer a question in the present circumstances was an interference with the administration of justice and the accused’s right to a fair trial. After making it clear to the witness that he was obligated to answer the question, when the judge was met with the persistent refusal of the witness, despite being warned that he might be cited for contempt, it was incumbent upon the judge to take all reasonable steps to compel the witness to answer the question put to him. By not doing so, the trial judge jeopardized the fairness of the trial process by foreclosing the inquiry into the continuity of the notes which might have impacted the weight to be given to the second note. Had the trial judge followed the proper procedure and taken all reasonable steps to elicit an answer from the witness, the witness might have answered the questions. The trial judge relied upon both notes in convicting the appellant. The two notes were the only documents relied upon by the trial judge. It could not be determined whether a conviction would have followed if the defence had been able to pursue the line of inquiry regarding the position that some of the notes might have been forged or planted. The curative proviso was not applicable in this case.

R. v. Normore, [2018] N.J. No. 43, Newfoundland and Labrador Court of Appeal, C.W. White, M.F. Harrington and L.R. Hoegg JJ.A., February 15, 2018. Digest No. TLD-Mar122018005