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EVIDENCE - Methods of proof - Identification

Thursday, May 24, 2018 @ 8:26 AM  


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Appeal by the Crown from the acquittal of the accused, Downey, of offences related to a home invasion shooting. Four masked individuals entered a home and announced their intention to rob the occupants of money and drugs. One of the individuals wielded a firearm. Within three to six minutes, the three occupants were shot, suffering non-fatal wounds. The Crown alleged that the accused was the shooter. The accused was tried on a 28-count indictment that included attempted murder, robbery, and various firearms offences. The sole issue at trial was identity of the shooter. A gunshot residue particle was taken from the accused's hand 3.5 hours after the shooting. One of the victims testified that she immediately recognized all four of the perpetrators. She testified that she recognized the accused as one of the masked perpetrators upon sight, and once he spoke. She testified that she was 100 per cent certain of her identification based upon prior dealings with the accused in her neighbourhood and at school. The trial judge found that the victim's identification testimony was not sufficiently accurate or reliable to sustain a conviction. Despite her honestly held belief that the accused was the shooter, the victim's identification was based on a brief observation of a masked individual. She was unable to explain what was physically distinctive about the shooter that linked him to the accused. She had not seen the accused in the previous five months, and never had more than brief exchanges with him. The victim's voice identification evidence carried a risk of confirmatory bias after the accused's arrest. The trial judge concluded that the remaining Crown evidence was not sufficiently reliable to sustain a conviction. The Crown appealed.

HELD: Appeal allowed. The trial judge failed to apply the proper test in assessing the reliability of the identification evidence, ignored relevant evidence and considered irrelevant evidence, and subjected the evidence to a piecemeal assessment, the effect of which was to impose an impossibly high burden of proof upon the Crown. The trial judge ignored the fact that the victim knew, recognized and positively identified all four intruders through contact and relationships with each of them at their high school. The victim's clear and unambiguous identification of the accused, repeated twice en route to hospital, was highly relevant in determining the reliability of her testimony. Requiring the victim to articulate distinctive features linking the shooter to the accused was not required to determine the reliability of her testimony. The failure to consider the evidence of the other witnesses and the gunshot residue evidence deprived the trial judge of appreciating the significance of the victim's description of the shooter. The trial judge's errors materially affected the verdict. A new trial was ordered.

R. v. Downey, [2018] N.S.J. No. 136, Nova Scotia Court of Appeal, D.P.S. Farrar, J.W.S. Saunders and C.A. Bourgeois JJ.A., April 18, 2018. Digest No. TLD-May212018008