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APPEALS - Grounds - Misapprehension of or failure to consider evidence

Friday, May 04, 2018 @ 8:30 AM  


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Appeal by the accused from conviction for manslaughter after the victim died from a brain injury suffered during a beating. The testimony of several eyewitnesses was heard at trial. Two youths’ evidence, who did not appear at trial, was also put before the court via DVD recordings of their police interviews. The two youths’ accounts were that the accused had not been involved in the fatal beating. The defence relied heavily on this evidence. The trial judge did not mention or refer to in any way the evidence of these two youths. The accused appealed the trial judge’s decision on the basis the trial judge erred in law in overlooking this evidence. In the alternative, the accused argued the trial judge’s reasons for decision were legally defective because they did not explain how or why evidence key to her defence was not accepted.

HELD: Appeal allowed. The trial judge erred in law when he overlooked or failed to consider evidence essential to the accused’s defence. The conviction was set aside and a new trial was ordered. It was unnecessary to decide whether the trial judge failed to provide adequate reasons for decision. It was clear that the trial judge would have referred to the youths’ statements if he had, in fact, taken them into account in his decision making. Being DVDs with video and audio, the statements more closely resembled the witnesses’ evidence that the judge summarized than they did the other papers and reports making up other exhibits tendered. As the other exhibits were effectively subsumed into witnesses’ testimony, it was easy to understand why the trial judge chose not to refer to those exhibits. But, given the free-standing and independent nature of the youths’ statements, it was in no way apparent why he did not mention them. Further, the conclusion that the youths’ statements were devoid of probative value and thus unworthy of a mention was wholly inconsistent with both the substance and flavour of the case presented to the judge.

R. v. Necroche, [2018] S.J. No. 125, Saskatchewan Court of Appeal, R.G. Richards C.J.S., R.K. Ottenbreit and N.W. Caldwell JJ.A., March 29, 2018. Digest No. TLD-April302018010