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EVIDENCE - Hearsay rule - Exceptions - Necessary and reliable evidence

Wednesday, January 02, 2019 @ 8:26 AM  

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Appeal by the accused, Hall, from a conviction for first degree murder and attempting to cause bodily harm. Well after midnight, a masked gunman opened fire in an all-night diner. One man sustained fatal injuries from four shots and another man was seriously wounded by two shots. The shooter fled in a vehicle. Shortly thereafter, police found an abandoned firearm, gloves, a mask, and a shirt near the diner. Several months later, DNA on the recovered items was linked to the accused through the National DNA Data Bank. The Crown's case at trial was entirely circumstantial, relying on the DNA evidence, a description of the shooter and his vehicle from eyewitnesses and as depicted in a surveillance video, and business records that linked the accused to a rental vehicle that fit the description of the getaway car. The accused was convicted by a judge sitting with a jury. The accused appealed, challenging the admission of hearsay evidence from an eyewitness who died one year after the shooting, the adequacy of the jury instructions regarding the DNA evidence, and the reasonableness of the verdicts.

HELD: Appeal dismissed. The trial judge did not err in concluding that the statement given by the eyewitness to police met the requirements of the spontaneous or excited utterance exception to the hearsay rule. The matter of elicitation through police questioning did not undermine the spontaneity of the statement. The police narration of the statement was sufficiently reliable. The eyewitness's untimely death rendered it reasonably necessary to admit the statement for the truth of its contents. There were no serious or real concerns about the reliability of the statement based on the circumstances under which it was made. There was no motive to fabricate, and there was corroborative evidence as to accuracy, buttressing its inherent reliability. The trial judge did not err in the approach to the principled exception to the hearsay rule. It was not established that the judge improperly exercised his residual discretion in balancing the probative value and prejudicial effect of the statement. In instructing the jury, the trial judge addressed all of the essential elements of a charge involving DNA evidence. In particular, the trial judge fairly and adequately reviewed the evidence regarding the limitations of mixed DNA profiles, and appropriately identified and summarized expert evidence supporting the defence of innocent DNA transfer. The verdicts, in the context of the probative value of the DNA evidence, were not unreasonable. Taking into account the factual matrix of the case viewed through the lens of judicial experience, the jury was entitled to conclude that the only reasonable conclusion was that the accused was the shooter.

R. v. Hall, [2018] M.J. No. 302, Manitoba Court of Appeal, B.M. Hamilton, D.M. Cameron and C.J. Mainella JJ.A., November 19, 2018. Digest No. TLD-January22019002