Court of Appeal

IN THE COURT OF APPEAL FOR THE NORTHWEST TERRITORIES
YELLOWKNIFE CRIMINAL SITTINGS
HEARD April 15, 1998



      COUNSEL TRIAL JUDGE COURT

HEIN QUANG BUI    Adrian Wright Power, J.  Maddison, J.A.
           Irving, J.A.
   Appellant       Schuler, J.A.

- and -

HER MAJESTY THE QUEEN  Ulla Arvanetes

   Respondent


APPEAL #CA 00692



MEMORANDUM OF JUDGMENT




[1] After hearing this appeal on April 15, 1998, we allowed the appeal and ordered a new trial, indicating that our reasons for doing so would follow.  These are our reasons.

[2] Two grounds of appeal were argued before us.  The first arises from the trial judge's instructions to the jury on the use they could make of an audiotaped statement given by a Crown witness to the police prior to the trial.  The second arises from the trial judge's decision to admit as substantive evidence under the res gestae rule verbal utterances made by the same Crown witness.

[3] The Appellant was convicted by a jury of trafficking in cocaine.   One of the Crown witnesses, Bryan, was alleged to have received the cocaine from the Appellant.  Bryan had provided an audiotaped statement to the police in which he said that the Appellant had thrown the cocaine to him in the back alley of a local bar.  At trial, Bryan gave a different version of events in which he did not implicate the Appellant.

[4] During the course of Bryan's examination-in-chief, Crown counsel sought leave of the trial judge to cross-examine Bryan under s. 9(2) of the Canada Evidence Act on the audiotaped statement to the police.  A voir dire was held for that purpose.  During the voir dire, the audiotaped statement was played for the trial judge and was made an exhibit.

[5] Bryan testified on the voir dire and admitted providing the audiotaped statement but said that the information in it had been fed to him by the police and that he had told them what he thought they wanted to hear in hopes of getting a benefit with respect to charges he was facing.  The police officers who testified denied feeding Bryan information and also contradicted his evidence that he was intoxicated at the time of the audiotaped statement.

[6] At the conclusion of the voir dire, Crown counsel argued pursuant to s. 9(2) of the Canada Evidence Act that he should be permitted to cross-examine Bryan about the audiotaped statement in the presence of the jury.  Crown counsel did not ask that the statement be admitted for the truth of its contents.

[7] After hearing from defence counsel, the trial judge ruled that the Crown would be permitted to cross-examine Bryan on the audiotaped statement.  In his ruling, he talked about the contradictions between the evidence of Bryan and the police officers who testified on the voir dire.  He then went on to speak about indicia of reliability (which may have arisen because defence counsel, in his submissions on the voir dire, made reference to necessity and reliability).  He concluded by saying:

I would have to impress upon the jury when they are recalled and when I am charging them that it is extremely important that they carefully assess all matters, determining the weight to be afforded to this inconsistent statement as substantive evidence.

My ruling then concludes that the Crown has the right to cross-examine Darryl Bryan on his statement given before Corporal Eaton on August the 4th, 1996, at the R.C.M.P. detachment.

[8] Based on subsequent remarks by counsel, to which we will refer below, it appears that both counsel understood the ruling to mean that the Crown had permission to cross-examine Bryan on the audiotaped statement and not that the statement itself could be used as substantive evidence.

[9] Bryan was cross-examined on the audiotape in the presence of the jury.  The tape itself was played in the jury's presence but was not marked as a trial exhibit.

[10] The audiotape was next addressed in the pre-charge discussion which the trial judge held with counsel in the absence of the jury.  The trial judge raised the issue of how the audiotape should be dealt with, saying:

... that [audio statement] clearly is evidence before the jury.  They have heard the audio tape.  They've listened to it.  They must examine the circumstances under which the statement was obtained.  They have to decide the appropriate weight to give to that statement.  They must consider it in the circumstances of assessing credibility, and that's really what I'm going to be telling the jury with respect to that document.

[11] The trial judge then asked counsel whether they had any difficulty with the audiotape being played for the jury if such a request were made.  Crown counsel said that he did not, that he viewed the situation as analogous to anything they might ask to have read back from the court reporter's notes.  Defence counsel, when asked whether he had any difficulty with the tape being played, said:

In general, no, My Lord.  I think the only issue would be the question of what use, if any, they can make of it.  He says it's a pack of lies, and it's not evidence of the truth per se, and so it goes into the general issue that we're having to address generally when it comes to questions of statements.  (emphasis added)

[12] Neither the trial judge nor counsel for the Crown commented on defence counsel's remarks.

[13] In his jury address, Crown counsel stated very clearly that the jury must not use the audiotaped statement to prove that the Appellant was involved in the drug transaction, but that it was relevant instead to the credibility of the evidence Bryan gave at trial.  Defence counsel referred to the statement only in the context of Bryan's credibility.

[14] When dealing with the audiotaped statement in his charge to the jury, the trial judge said the following:

... you cannot convict the accused on the evidence in this audio statement.  You must examine the circumstances under which the statement was obtained.  You may take the statement as substantive evidence of its contents.  It is up to you to decide the appropriate weight you will give to this statement after taking it into account - all of the circumstances.  You must consider carefully the circumstances in assessing the credibility of prior inconsistent statements relative to the witness's testimony at trial.

[15] After telling the jury to consider factors such as Bryan's demeanour, his reasons for recanting, any motive to fabricate and his condition at the time of the audiotaped statement, the trial judge concluded by telling the jury to "carefully assess all such matters in determining the weight to be afforded the prior inconsistent statement".

[16] Weight, or probative value, is something that a jury must determine in dealing with evidence that is tendered as proof of a fact in issue.  The trial judge erred in telling the jury it was to decide the weight to be afforded the audiotaped statement, since it was not tendered as proof of fact.  Further, his instructions to the jury were contradictory as to the use to which they could put the audiotaped statement, at one point telling them that they could not use it to convict the Appellant but at another telling them that they could use it as substantive evidence and determine what weight to give to it.

[17] Counsel for the Crown on this appeal, who was not counsel at trial, argued that the audiotaped statement could, in any event, have been admitted as substantive evidence, that is, as proof of the truth of its contents, under R. v. B.(K.G.) (1993), 79 C.C.C. (3d) 257 (S.C.C.) and that all factors which that case says should be addressed in deciding whether to admit such evidence were in fact addressed on the voir dire in this case.

[18] We think that this argument fails, however, to take into account the fact that the Crown did not seek to admit the audiotaped statement as a B.(K.G.) statement and that clearly both Crown and defence thought that the statement had been admitted only as a previous inconsistent statement for purposes of testing the credibility of Bryan.  Defence counsel might have conducted his cross-examination on the voir dire differently had he been aware that the trial judge was considering admitting the audiotaped statement as substantive evidence.  For example, there was no evidence that the statement was given under oath, no inquiry as to whether there was an appropriate substitute for same and no inquiry into the reasons why the statement was not videotaped and whether, in the circumstances of this case, an audiotape was sufficient: R. v. B.(K.G.).

[19] In R. v. B.(K.G.), Lamer J. set out the two-stage process by which prior statements may be examined to determine whether they may be used as substantive evidence of their contents by the jury.  He stated that the party wishing to tender the evidence will first invoke s. 9 of the Canada Evidence Act and fulfil its requirements in the voir dire for that purpose.  Then the party will state its intention in tendering the statement.  If the intention is to use the statement only to impeach the credibility of the witness, that is the end of the matter and the trial proceeds with the judge instructing the jury as to the statement's only use being on the issue of credibility.  If, however, the party states that it seeks to make substantive use of the statement, the trial judge must continue the voir dire into a second stage and satisfy himself or herself as to the reliability factors set out in R. B.(K.G.).

[20] In this case, the Crown did not seek to go beyond the first stage of the voir dire and so the second stage of the voir dire was not held.

[21] In our view, in these circumstances, the trial judge erred in instructing the jury that they could use the audiotaped statement as substantive evidence.  Since it is possible that the jury or some of its members based their verdict on what was not tendered as substantive evidence and for which there had not been a voir dire and ruling as required by R. v. B.(K.G.), the conviction cannot stand.  As we indicated at the hearing, we allow the appeal on this ground.

[22] In light of our decision, it is not necessary for us to deal with the second ground of appeal, the admission into evidence of the utterances made on Bryan's arrest under the res gestae rule.  It will suffice to say that we have reservations as to whether a statement made by a person who is in the process of being arrested and is responding to questions by a police officer about the incident for which the arrest is made can meet the requirements set out in R. v. Andrews, [1987] 1 All E.R. 513 (H.L.).  We will leave that for consideration by the judge at the new trial.

[23] We therefore allow the appeal, set aside the conviction and order a new trial.



Dated at Yellowknife, Northwest Territories
this 8th day of May, 1998.




         MADDISON, J.A.





         IRVING, J.A.






         SCHULER, J.A.


CA 00692


IN THE COURT OF APPEAL FOR
THE NORTHWEST TERRITORIES




BETWEEN:

HIENG QUANG BUI

Appellant

- and -



HER MAJESTY THE QUEEN

Respondent




MEMORANDUM OF JUDGMENT