Supreme Court

R. v. Kotchea, 2003 NWTSC 29
Date: 20030529
Docket: S-1-CR2003000002

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

IN THE MATTER OF:


HER MAJESTY THE QUEEN

     Appellant


- vs. -


GORDON GEORGE KOTCHEA

     Respondent


Transcript of the Decision on an Appeal by The Honourable Justice J.E. Richard, at Yellowknife in the Northwest Territories, on May 15th A.D., 2003.


APPEARANCES:

Mr. N. Sinclair:   Counsel for the Appellant

Mr. J. Brydon:   Counsel for the Respondent


Charge under s. 267(a) x 2 Criminal Code of Canada


THE COURT:   At the trial below, the defence counsel made a legitimate or proper application before the trial Judge after the Crown had closed its case. That application was for a nonsuit or directed verdict of acquittal on the grounds that the Crown, in its case, had failed to prove the essential element of identity.

While that application was before the trial Judge and before the trial Judge ruled on that nonsuit application, the Crown made its own application, that is, an application to reopen its case in order to have an opportunity to present further evidence on the essential element of identity. In making that Crown application, the trial prosecutor acknowledged that he had mistakenly assumed that identity had been admitted during the Crown case.

The case law, as cited by counsel on this appeal, is clear that the trial Judge has discretion to permit the Crown to reopen its case or not.

Here, the trial Judge obviously was of the view that to allow the Crown to reopen its case, in these circumstances, would be prejudicial or unfair to the accused as it would render nugatory the defence application which was then properly before the Court. This prejudice or unfairness to the accused person is a proper consideration when exercising judicial discretion.

[Page 1]

Whether or not to permit the Crown to reopen its case was entirely within the discretion of the presiding trial Judge. It has not been shown on this appeal that the learned trial Judge failed to exercise that discretion in a judicial manner. For these reasons, the appeal fails and is dismissed.

If there is nothing further then, we will close court. Actually we are adjourned until three.

MR. SINCLAIR:  Thank you, sir.

MR. BRYDON:  Thank you, sir.

(AT WHICH TIME THE DECISION ON THE APPEAL CONCLUDED)


Certified to be a true and accurate transcript pursuant to Rules 723 and 724 of the Supreme Court Rules.

Lois Hewitt
Court Reporter

[Page 2]