Supreme Court of Canada
R. v. Graham, [1974] S.C.R. 206
Date: 1972-03-30
Her Majesty The Queen Appellant;
and
Patrick Benedict Graham Respondent.
1971: December 13, 14; 1972: March 30.
Present: Martland, Judson, Ritchie, Hall, Spence, Pigeon and Laskin JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Criminal law—Evidence—Statements—Admissibility—Stolen goods—Recent possession—Explanation in written statement made two hours after arrest—Crown not tendering statement—Accused not testifying—Statement properly excluded.
The respondent was charged and tried jointly with one McKenzie with having possession of a quantity of jewellry of a value in excess of fifty dollars knowing that it was obtained by the commission of an indictable offence. The evidence disclosed that the respondent and his co‑accused were found together by the police in a hotel room where an attaché case containing jewellry recently stolen was found behind a chesterfield. The key to the attaché case was in the co-accused’s possession and when it was found, the respondent at once said “I have never seen it before in my life”. The respondent and his co-accused were both then arrested and as they were leaving the hotel the respondent told the police officer that he wished to telephone a lawyer and that he might then have something further to tell about the matter. Approximately two hours later the same police officer received a message from the respondent to the effect that he wanted to speak to him. Two police officers came to the jail where the respondent, in their presence, wrote out a statement. The substance of that statement was introduced in evidence before the jury from other sources. In the cross‑examination of one of the officers, he testified that a written statement had been made to him by the respondent and that he had read it over, but upon being asked as to the contents of the statement, Crown counsel objected to its admissibility. The trial judge ruled that it was inadmissible. Both accused were found guilty by the jury. The Court of appeal quashed the conviction and directed a new trial. The Crown was granted leave to appeal to this Court on the question as to whether the written statement should have been adduced in evidence in view of the circumstance that the Crown relied on the presumption flowing from possession by the respondent of goods recently stolen.
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Held: The appeal should be allowed and the conviction restored.
Per Martland, Judson, Ritchie and Pigeon JJ: The written statement was properly excluded. The statement was inadmissible under the general rule that self-serving statements cannot be introduced on the cross-examination of third parties because they cannot themselves be tested by cross-examination of the accused person who made them, and their introduction in such a manner deprives the jury of the benefit of appraising his credibility from observing his demeanor. Explanatory statements made by an accused upon his first being found in possession constitute a part of the res gestae and are necessarily admissible in any description of the circumstance under which the crime was committed. However, the respondent did not “adduce further evidence by way of explanation” and his written statement was not made contemporaneously with the discovery but rather after ample time had elapsed for reflection.
Per Hall and Laskin JJ: If the case is one where the accused has made a statement explaining his recent possession, Crown counsel may have the statement go in as part of the Crown’s case, thus avoiding any ruling on contemporaneity, or he may decide not to put in the statement and seek to prove his case without the benefit of any inference from the fact of recent possession. On the other hand, he may decide not to put in the statement, intending to seek the benefit of the inference arising upon proof of unexplained recent possession. But if he proposes to follow this course, the defence must be informed that the statement was made to enable it to decide whether to seek to adduce it on cross-examination (subject to a ruling on contemporaneity), or to bring it in during the examination of the accused (if he decides to testify) to show consistency. The trial judge was not wrong in refusing to allow the statement to be brought out in cross-examination having regard to the fact that the accused made an immediate oral statement and then indicated he might have something further to say after he saw his lawyer.
Per Spence J: If the Crown is to rely on the presumption arising from recent possession then,
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under the particular circumstances here, it was the duty of the Crown to prove the statement made only two hours after his arrest by the accused and leave it to the jury to find whether that statement could reasonably have been true. Otherwise, the accused is driven to give testimony in his own defence. In this case, the Crown was not required to rely upon any doctrine of recent possession of stolen goods in order to prove its case and did not so rely. Therefore, the Crown was not required to produce any explanation and the attempt to adduce such explanation in the cross-examination of the constable was an attempt by the defence to prove a defence without the production of evidence from the accused. The trial judge was therefore correct in his ruling that the written statement could not be produced.
APPEAL from a judgment of the Court of appeal for British Columbia, quashing the respondent’s conviction for possession of stolen goods. Appeal allowed.
W.G. Burke-Robertson, Q.C., for the appellant.
B.A. Crane, for the respondent.
The judgment of Martland, Judson, Ritchie, and Pigeon JJ. was delivered by
RITCHIE J.—This is an appeal by the Crown, brought with leave of this Court pursuant to s. 621(1)(b) of the Criminal Code, (formerly 598(1)(b)) from a judgment of the Court of Appeal of British Columbia quashing the conviction of the respondent for possession of stolen goods and directing a new trial.
The respondent was charged and tried jointly with one Jeanine McKenzie with having possession of a quantity of jewellery of a value in excess of $50 knowing that it was obtained by the commission of an indictable offence, and upon trial before His Honour Judge Schultz sitting with a jury, both were found guilty.
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The evidence disclosed that the respondent and his co-accused, Miss McKenzie, were found together by the police in a hotel room where an attaché case containing jewellery recently stolen from a shop in Calgary was found behind a chesterfield. The key to the attaché case was in Miss McKenzie’s possession and when it was found, the respondent at once said “I have never seen it before in my life.” The respondent and Miss McKenzie were both then arrested and as they were leaving the hotel the respondent told the police officer that he wished to telephone a certain lawyer and that if he could get in touch with him he might then have something further to tell about the matter. The Officer replied that they were still conducting the investigation and as soon as possible they would do what they could for him in that regard. Approximately two hours later the same police officer received a message from the respondent to the effect that he wanted to speak to him, and a short time later two police officers came to the jail where the respondent, in their presence, wrote out a statement which is reproduced in full in the reasons for judgment of Bull J.A. in the Court of Appeal and which reads as follows:
I have a friend in Calgary, Morris Mendelman, who owns and operates Switzer’s Jewellers. His store was broken into and some jewellery was stolen. He contacted me and asked me if I could ask around and see if I could find it for him, as he was not covered by insurance. He said to offer a reward of one thousand dollars for the return of the jewellery. I found out through asking around, that the jewellery was possibly in Vancouver. I had to come to Vancouver for other personal business anyhow. While I was here I contacted Jean McKenzie who knew of someone who she called Joe Fields or Shields that knew of some stolen jewellery. I told her I wanted to do everything through a lawyer and didn’t want to see or touch or have anything to do with any jewellery in any event that I might come in contact with jewellery which was stolen, other than the articles which belonged to Mr. Mendelman. I was going to contact Mr. Nick Mussallem (I believe that’s a lawyer in the City of Vancouver) this morning, and make arrangements to have the jewellery taken to his office, if after phoning Mr. Mendelman in Calgary it proved to be his property, I would have arranged to have it sent back to him. Miss McKenzie was acting as an agent in my
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behalf and I was acting as an agent for Mr. Mendelman, the owner of the jewellery. If the jewellery and the sachel was not the jewellery belonging to Mr. Mendelman, I state that neither of us would have accepted it. We were only interested in Mr. Mendelman getting back his merchandise and that’s all. Mr. Mendelman is a personal friend of mine for many years and a member of the club I operate in Calgary. I asked for a lawyer when the jewellery was discovered in the hotel and we were charged and offered to make up a statement at that time. I still—and offered to make this statement at that time. I still have not seen a lawyer, but am making a voluntary statement now. The first time I have seen the officers since my arrest. I had no knowledge that Jean McKenzie had the merchandise in the hotel room while I was there, and if it is not the merchandise belonging to Mr. Mendelman I would not have anything to do with it. When the Police found the sachel Miss McKenzie said that I did not know it was in the room. It was not my room, I stayed there with McKenzie for the night. This is a voluntary statement.
Mr. Mendelman, who gave evidence for the Crown, testified that he had indeed asked the respondent to try and get the jewellery back because he had no insurance and that he had also offered him $1,000 if he could return it and Graham’s statement is also borne out by the evidence given at the trial by his co-accused. It is thus clear that the substance of Graham’s statement was introduced in evidence before the jury from other sources, but it is obvious that they did not place any faith in it as a defence to the crime with which he was charged.
The first reference to this statement was in the cross-examination of Detective Lifton when he testified that a written statement had been made to him by the respondent and that he had read it over, but upon being asked as to the contents of the statement, Crown counsel objected to its admissibility and the learned trial judge ruled that it was inadmissible.
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The Court of Appeal found the circumstances of the present case to be governed by the case of Reg. v. Hodd and therefore held that the learned trial judge was in error in ruling that the written statement made by the respondent more than two hours after he had been found in possession of the stolen property was inadmissible. It is this determination by the Court of Appeal which is the subject of the sole question upon which leave to appeal was granted to this Court, namely:
Did the learned Judges of the Court of Appeal err in holding that a written statement of the Respondent Graham ought to have been adduced in evidence in view of the circumstance that the Crown relied on the presumption flowing from possession by the Respondent of goods recently stolen?
In the present case the respondent did not give evidence and generally speaking, self-serving statements of accused persons cannot be introduced by means of cross-examination of others, but in accepting Reg. v. Hodd as a binding authority, the Court of Appeal adopted the view that in a case where the Crown relies on the presumption of guilt flowing from the possession of recently stolen goods, it is fixed with the burden of proving either that the accused made no explanation or if he did that it was one that could not reasonably be true. It accordingly becomes necessary to examine the nature and effect of the presumption referred to.
The presumption flowing from the possession of goods recently stolen has been considered in this Court in Richler v. The King, Ungaro v. The King, and Graham v. The Queen, per Judson J. at 653, all of which appear to approve the principle as it was stated by Lord Reading speaking on behalf of five members of the
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Court of Criminal Appeal in England in the Schama case, where he said:
Where the prisoner is charged with receiving recently stolen property, when the prosecution has proved the possession by the prisoner, and that the goods had been recently stolen, the jury should be told that they may, not that they must, in the absence of any reasonable explanation, find the prisoner guilty. But if an explanation is given which may be true, it is for the jury to say on the whole evidence whether the accused is guilty or not; that is to say, if the jury think that the explanation may reasonably be true, though they are not convinced that it is true, the prisoner is entitled to an acquittal, because the Crown has not discharged the onus of proof imposed upon it of satisfying the jury beyond reasonable doubt of the prisoner’s guilt. That onus never changes, it always rests on the prosecution. That is the law; the Court is not pronouncing new law, but is merely re-stating it, and it is hoped that this re-statement may be of assistance to those who preside at the trial of such cases.
In commenting on the Schama case, which is also reported in 79 J.P. Rep. at page 184 and 59 Solicitors’ Journal at 288, Lord Goddard C.J. stated the rule in the following terms in Rex v. Booth:
In the case of receiving stolen goods, the prosecution may discharge the onus of showing that the prisoner was in possession of property recently stolen, and, in the absence of any explanation given by the prisoner, the jury are entitled, on that evidence alone, to convict. If, however, the prisoner gives in evidence a story which leaves the jury in doubt, that is to say, creates a doubt in their minds whether he received the goods feloniously, they should acquit.
In the Ungaro case, supra, after reviewing the earlier cases, Mr. Justice Estey concluded, at page 436 that when these authorities refer to the failure of the accused to explain recent possession
… they mean no more than that the evidence of recent possession unexplained raises a prima facie case upon which, if the accused does not adduce
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further evidence by way of explanation, the jury may, not must, find the accused guilty.
There is nothing in any of these authorities to suggest that in relying upon the presumption of guilt flowing from possession of recently stolen goods, the Crown has the burden of proving that no explanation has been given by the accused at any time prior to his trial, or that if such an explanation has been given, it could not reasonably be true. On the contrary, in all the cases to which I have referred, except the case of Hodd, the accused had given an explanation on oath at the trial, and this was also true of the case of Rex v. Hagen, alias Smith, to which reference was made in the Hodd case.
In cases such as that of Schama where the accused has given an unsworn explanation before the trial and a later explanation from the witness box in the presence of the jury, I think, with all respect for those who take a different view, that when the Court of Appeal refers to the result “if the jury think that the explanation may reasonably be true” they are to be taken to be referring to the sworn explanation which the jury has heard and seen delivered in the court rather than any unsworn statement made before the trial.
There may, of course, be cases in which the prosecution elects to use a declaration made by an accused out of court as a part of the Crown case and the declaration then becomes evidence for the prisoner as well as against him (see The King v. Hughes). If in such a case the declaration is capable of being construed as an explanation which might reasonably be true, the accused is, of course, entitled to all the advantages of it.
In the present case the respondent’s verbal statement made when the attaché case was found, that he had never seen it before in his life, being one which was immediately connect-
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ed with the initial discovery of the stolen goods, was properly admitted in evidence. Explanatory statements made by an accused upon his first being found “in possession” constitute a part of the res gestae and are necessarily admissible in any description of the circumstances under which the crime was committed, but Graham did not “adduce further evidence by way of explanation” and his written statement was not made contemporaneously with the discovery but rather after ample time had elapsed for reflection. In my view if this statement were to be admitted it would mean that any person accused of receiving stolen goods could, after due consideration, devise an explanation which might easily be true for the goods having been found in his possession and could thus avoid the necessity of presenting himself as a witness and be afforded the full benefit of his explanation without being subjected to cross-examination. Such an explanation is, in my view, inadmissible under the general rule in criminal cases that self-serving statements made by an accused cannot be introduced on the cross-examination of third parties because they cannot themselves be tested by cross‑examination of the accused person who made them, and their introduction in such manner deprives the jury of the benefit of appraising his credibility from observing his demeanour.
Unlike the Court of Appeal, we are not bound by the decision in Reg. v. Hodd, supra, and I have concluded that the Judges of the Court of Appeal were wrong in holding that the written statement made by Graham ought to have been adduced in evidence.
I would accordingly allow this appeal and restore the conviction entered at trial.
The judgment of Hall and Laskin JJ. was delivered by
LASKIN J.—I have had the advantage of reading the reasons of my brothers Ritchie and Spence for allowing this appeal and for restoring the conviction at trial. Although I agree with
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the result they have reached under their respective treatments of the issues, my appreciation of the so-called doctrine of recent possession impels me to write separately in concurrence.
The use of the term “presumption”, which has been associated with the doctrine, is too broad, and the word which properly ought to be substituted is “inference”. In brief, where unexplained recent possession and that the goods were stolen are established by the Crown in a prosecution for possessing stolen goods, it is proper to instruct the jury or, if none, it is proper for the trial judge to proceed on the footing that an inference of guilty knowledge, upon which, failing other evidence to the contrary, a conviction can rest, may (but, not must) be drawn against the accused.
Although unexplained recent possession will support such an inference, two separate questions of law may first have to be disposed of by the trial judge in favour of the prosecution. These involve (1) the recency of the possession and (2) the contemporaneity of the explanation, if any. No adverse inference can be made from the fact that an accused is found in possession without explanation unless the possession was recent, and this may involve a question of law for the presiding judge according to whether there is any evidence upon which a finding thereon can be made. Second, if the accused has made a pre-trial statement in explanation of his recent possession, it is for the trial judge to decide as a question of law whether that statement has contemporaneity; and if so, no adverse inference of guilty knowledge is open if the trier of fact, upon instruction to that effect, should find that the explanation is one that may reasonably be true.
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The second question of law may arise at the point where a Crown witness is cross-examined and it is sought to ask him about any explanation made by the accused which that witness or another did not disclose in chief. If the trial judge rules that the statement in explanation was sufficiently contemporaneous, it becomes admissible, and will blunt any inference of guilty knowledge if it is found as a fact that the explanation was one that might reasonably be true. No conviction can in such a case be rested on the doctrine of recent possession alone. If the ruling is against admissiblity, because the explanation was made beyond the time when it would be reasonable to expect the person found in possession to give an innocent account for it, the Crown may rely on the inference, provided the recency of the possession is established.
The accused may, of course, give evidence at his trial, and if an explanation of his recent possession is part of his testimony, it simply goes into the record as part of his defence referable to the burden on the Crown to prove his guilt beyond a reasonable doubt. If he had made a pre-trial explanation, it may be brought out in his examination but only to show the consistency of his trial evidence, and for no other purpose.
The course of Crown counsel in this branch of the law is, in my opinion, clear if the case is one where the accused has made a statement explaining his recent possession. He may have the statement go in as part of the Crown’s case, thus avoiding any ruling on what I have called contemporaneity; and any inference of guilty knowledge from the fact of recent possession will then depend, other evidence aside, on whether the jury or other trier of fact finds that the statement is one that could not reasonably be true. He may decide not to put in the statement and seek to prove his case without the benefit of any inference from the fact of recent possession, so informing the trial judge. On the
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other hand, he may decide not to put in the statement, intending to seek the benefit of the inference arising upon proof of unexplained recent possession, because of his view that the statement would be inadmissible; but I think that if he proposes to follow this course, the defence, if not aware of the statement, must be informed that it was made to enable it to decide whether to seek to adduce it on cross-examination (subject to a ruling on contemporaneity), or to bring it in during the examination of the accused (if he decides to testify) to show consistency: see Welstead v. Brown. If the accused testifies, the Crown may cross-examine on any pre-trial statement of explanation to show inconsistency as going to the credibility of the accused.
Perhaps only a moral dilemma arises where Crown counsel deliberately refuses to put in an explanatory statement of the accused which was clearly contemporaneous with his being found in recent possession. I would myself give Crown counsel the benefit of the doubt on its contemporaneity and consequent admissibility, so long as there was the protective obligation to bring it to the attention of the defence to enable counsel for the accused to deal with it in cross-examination or otherwise, as already indicated. I would to this extent qualify what was said in Regina v. Hodd, with which I otherwise agree.
The inference of guilty knowledge which may be made upon proof of unexplained recent possession ought not to be magnified as some
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uniquity which necessarily stands out above all other evidence in the case. The misuse, in my opinion, of the term “presumption” in this connection may lead to injustice because of its strong connotation. Cross-examination of Crown witnesses and examination in chief of defence witnesses may yield testimony that, if believed, supports a contrary inference, and the Crown’s burden of proof remains, as always, the resolutive element.
What is important in this area of the law is to distinguish between an out-of-court statement of explanation given by the accused and an explanation which he gives as a witness at his trial. There is no basis for reliance by the Crown upon the inference of guilty knowledge if either in its own case in chief or in cross-examination of its witnesses an out-of-court statement of the accused has been put into the record and it carries an explanation of his recent possession which may reasonably be true. This is not then a question of imposing any burden upon the Crown to show at the trial that no explanation was given prior to trial. If the explanation has been adduced as aforesaid, being found to be admissible, then, of course, the issue whether it may reasonably be true must arise and be decided against the accused if the Crown is to have the support of the inference of guilty knowledge in meeting its traditional burden of proof beyond a reasonable doubt. This is what this Court said in Richler v. The King.
I do not find it necessary to review all the facts; they are canvassed in the reasons of my brothers Ritchie and Spence. My observations on them will be limited to what occurred at the trial with respect to the pre-trial statements, one oral and the second written, made by the
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accused. The oral statement made almost immediately by the accused when he was arrested with his co-accused, after the stolen jewellery was found in the hotel room that they occupied, was admitted through a Crown witness, but it was not contended that it provided any explanation of their possession. The written statement, made by the accused some two hours later at the police station, and which is at the core of this appeal, was put in evidence at the preliminary hearing, but Crown counsel decided not to use it at the trial and so advised defence counsel at the beginning of the trial.
The latter sought to cross-examine the Crown witness, a police officer, to whom the accused gave the statement in order to establish that a statement in writing was given and to have its contents revealed. Before ruling on its admissibility the trial judge asked Crown counsel whether the prosecution intended to rely upon the doctrine of recent possession. The reply was in the affirmative. There was then an adjournment to give counsel for the Crown and for the accused an opportunity to look into the law. When the hearing resumed Crown counsel returned to the question put by the trial judge and, as I read the record, sought to have the best of both worlds. On the one hand, he said that if the evidence was in the record to support the doctrine it was not for him to tell the jury not to pay any attention to it; “we can say it’s a minor part of the case”. On the other hand, he told the trial judge that there was evidence of guilty knowledge in this case and “so the Crown doesn’t have to rely on [the doctrine of recent possession] but it’s simply there”.
What is important for me in this matter is that the trial judge heard argument and then ruled
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that the contents of the written statement could not be brought out by the defence in cross‑examination. In charging the jury he told them that the Crown was relying on the doctrine of recent possession, and no objection was made to this feature of the charge by either the Crown or the defence. The Court of Appeal of British Columbia treated the issue of the admissibility of the written statement as governed by the Hodd case. On my view, as I have put it in these reasons, the issue on the facts herein was whether the trial judge’s refusal to allow the statement to be brought out in cross-examination was a proper one.
In the Hodd case, the statement was made “at the earliest possible moment to the arresting officer”. That is not this case. Although the matter is a close one, I cannot say that the trial judge was wrong in the view that he took, having regard to the fact that the accused made an immediate oral statement and then indicated he might have something further to say after he saw his lawyer. It follows that since there was no error in the way the trial judge dealt with the written statement offered by the accused, and no other fatal defects occurred, the judgment of the British Columbia Court of Appeal must be set aside and the conviction restored.
SPENCE J.—I have read the reasons for judgment delivered upon this appeal by my brother Ritchie and I am ready to accept the statement of facts as set out therein with some additional facts to which I shall refer later in these reasons.
As did my brother Ritchie, I have come to the conclusion that the appeal must be allowed and the conviction entered at trial must be restored. However, I have come to that conclusion upon reasons which differ markedly from those of my brother Ritchie and I feel it my duty to outline those reasons. It will be seen that the whole issue in this appeal is the application of the
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doctrine of recent possession to the charge of being in possession of stolen goods and particularly whether the Crown is required to prove as part of its case the explanation for the fact of possession given by the accused man at the time of his arrest or shortly thereafter. It is not my intention to be concerned with cases where such explanation was given a very long time after the arrest of the accused person and where quite evidently he had an opportunity to concoct a story.
I note here two matters: Firstly, the statement given by the accused Graham in the particular case was given not later than at 1:15 p.m. following his arrest at about 11:00 a.m., a matter of some two hours after his arrest, and, at the time of his arrest, he had indicated that if he had an opportunity to see a certain solicitor then he would be ready to make a statement. Secondly, the accused, of course, may give evidence at trial and at trial give any explanation he deems fit as to his reasons for possession of the stolen goods. That explanation given at trial, although given when there is full opportunity to cross-examine the accused, is nevertheless given at a time long after his arrest and when he has had opportunity to concoct a story and when he has had an opportunity to obtain the aid of others in such concoction.
It is my view the problem must be solved by considering exactly what is the doctrine of recent possession. As did my brother Ritchie, I turn to the authoritative statement made by Lord Reading in Schama’s case, where he said at p. 49:
Where the prisoner is charged with receiving recently stolen property, when the prosecution has proved the possession by the prisoner, and that the goods had been recently stolen, the jury should be told that they may, not that they must, in the absence of any reasonable explanation, find the prisoner guilty. But if an explanation is given which may be true, it is for the jury to say on the whole evidence whether the accused is guilty or not; that is to say, if the jury
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think that the explanation may reasonably be true, though they are not convinced that it is true, the prisoner is entitled to an acquittal, because the Crown has not discharged the onus of proof imposed upon it of satisfying the jury beyond reasonable doubt of the prisoner’s guilt. That onus never changes, it always rests on the prosecution. That is the law; the Court is not pronouncing new law, but is merely restating it, and it is hoped that this re-statement may be of assistance to those who preside at the trial of such cases.
(The italics are my own.)
That statement was adopted by Chief Justice Duff for this Court in Richler v. The King and by Estey J. in Ungaro v. The King.
It is my view that Lord Reading in Schama, in the portion which I have quoted above, put the presumption as being one which arose on the absence of any reasonable explanation by the accused. There is not one word in the reasons for judgment to indicate whether or not Schama gave evidence in his own defence and very plainly the explanation to which Reading L.C.J. referred was an explanation given to the police upon his arrest. In Richler, it does not appear from the reasons for judgment whether the accused did or did not give evidence in his own defence. The report of the Schama case in vol. 79, J.P. Rep., at p. 184, does set out that the accused gave an explanation both on arrest and in evidence at trial and a search of the records in this court reveals that Richler gave evidence in his own defence. I find considerable significance in the fact that although both accused gave evidence in their own defence at their trials neither Lord Reading in the Schama case nor Chief Justice Duff in the Richler case thought it was necessary to so indicate and spoke only of “explanations” and not of evidence. In Ungaro, although the accused did give evidence, there was deduced from the police constable the statement given by the accused to
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the police constable at or shortly after the time of his arrest.
Again, in Rex v. Booth, although Lord Goddard did use the words, “If, however, the prisoner gives in evidence a story which leaves the jury in doubt …”, the actual statement which the court quoted was a statement made by the accused at the time of his arrest when he was asked to account for possession of the stolen goods. In Lopatinsky v. The King, Estey J. said at p. 225:
Throughout the evidence of both Taylor and Congdon there is no suggestion that any explanation was offered on the part of the accused as to the circumstances under which he was in possession of these tires which had been stolen but two or three days prior thereto.
The evidence of guilty knowledge in this as in so many cases is not directly deposed to. The unexplained fact of recent possession is evidence thereof.
Rex v. Schama, supra.
Taylor had been an R.C.A.F. investigator and Congdon was the person in whose possession the goods were found.
In Rex v. Hagan, alias Smith, Rowlatt J., speaking for the court, said at pp. 26-7:
… The prisoner’s explanation in such cases is required not to rebut a presumption of guilt, but to prevent one arising. If it is thought reasonable, there is no presumption and no onus on the prisoner. The result is that the conviction is unsatisfactory, and the appeal must be allowed.
The matter came to a head in Regina v. Hodd. That was a charge of breaking and entering and having in possession a certain coloured television set knowing that it had been
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obtained by the commission in Canada of the crime of theft. At the trial, the accused Hodd did not give evidence and the Crown refused to put before the jury the explanation which he had given in writing at the time of his arrest. Branca J.A., after having quoted from the Hagan case, as I have quoted above, said:
Here, an account was given by the appellant in relation to the stolen goods which the Crown alleged were in his possession. At law, therefore, the presumption could not arise if the explanation was one that might reasonably be true.
Continuing, Branca J.A. said:
In a case such as this the Crown may, it appears to me, pursue either one of these courses as follows:
(a) lead evidence to prove that the appellant was in possession of goods recently stolen and if there was no explanation accounting for his possession, rely upon the presumption which arises because of the lack of an account explaining his possession, or
(b) if there is an account given by the defendant then the Crown may conceivably withhold the tendering of that evidence and elect to prove each and every allegation of the charge beyond a reasonable doubt without the aid of the presumption discussed, or
(c) lead evidence of all the facts, including the account given by the accused, and thus leave it up to the jury to decide the guilt or innocence of the person charged depending upon whether or not the account given is one which might reasonably be true, despite the fact that the jury is not convinced that it is true.
In my judgment the Crown cannot, where it has knowledge that an accused has accounted for his possession of stolen goods, refuse to tender the explanation given by the accused in evidence and then ask the jury to assess the guilt of the accused upon the basis that the presumption applies. That would not only be unfair, but would be against all fundamental precepts of justice and contrary to the foundation upon which the presumption of guilt rests, namely, that the accused has given no explanation or an explanation which is not reasonably true.
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I concur with this statement of the law applicable to the doctrine. The whole basis of the doctrine is that the guilt of the accused may be presumed upon proof of (a) the fact that the goods were stolen, (b) that the accused was found in possession of them shortly thereafter, (c) that the accused did not give an explanation of his possession or that if he did give it that explanation could not reasonably be true. With respect, I concur with the view expressed by Bull J.A. in the Court of Appeal for British Columbia in the present case when he said:
To my mind, it invokes strange reasoning to say that it is proper for the prosecution to rely on presumptions arising from the “unexplained possession” of recently stolen goods under the doctrine to fix guilt on an accused, but at the same time refuse to give into evidence the very explanation for that possession which had been given.
One case may be of some interest and, in my view, supports my understanding of the effect of the presumption, that is R. v. Frederick Barnes. There, the accused Barnes had been charged with being in possession of two different kinds of stolen goods, one, a large quantity of tinned rhubarb and, two, an electric drill. The evidence as to the possession of the stolen tins of rhubarb was first dealt with and there it was proved as part of the Crown’s case that the accused had made a statement with regard to those tins. At the close of the case for the prosecution, the deputy chairman had ruled that there was not sufficient identification of those tins to justify the case proceeding any further and directed the jury, as a matter of law, to acquit the accused which they did. Evidently then, the charge as to the possession of the stolen electric drill was proceeded with and a police constable first gave evidence as to finding that drill in the accused’s own workshop and that he had said, “A mate of mine asked me to look after it for him”. As Humphreys J. described it, much later in the case, it appeared that the appellant had made another statement after he had been taken to the police station and charged and then said, “I will tell you the name
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of the mate; it is a man named Clifford. That is the man I got it from”. It does not appear from the case that the appellant, the accused, ever gave evidence but Humphreys J., giving the judgment of the Court, said at p. 147:
All that any man can do if, unfortunately for himself, he is found, three months after it has been stolen, in possession of some article, is to say where he got it, and if his story is consistent with innocence, and is not proved to be untrue, he is entitled to be acquitted. If, therefore, Clifford had not been called as a witness, it is quite plain that the jury would have had to be told: “You cannot convict the prisoner; he says he got it from a man named Clifford, and there is not a shred of evidence to show that is not true, and if he got it from Clifford, why should not he think he got it honestly?”
In short, there, the accused’s explanation made not at the time of the arrest but subsequently in the police station, as in the present case, was given to the jury as part of the Crown’s case and had the case stopped there it was the opinion of Humphreys J. that the jury would have had to have been instructed that they must acquit because the accused’s explanation could reasonably have been true.
So in the present case, if the Crown is to rely on the presumption arising from recent possession then I am of the opinion that under the particular circumstances here it was the duty of the Crown to prove the statement made only two hours after his arrest by the accused man and leave it to the jury to find whether that statement could reasonably have been true. Instead, the Crown chose to exclude the statement and was successful in doing so before the learned trial judge. Under such circumstances, I am of the opinion that the presumption due to recent possession did not arise.
I am strengthened in my opinion that if the Crown is to rely upon the presumption arising from recent possession then it must as part of
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its case either prove that there was no explanation given by the accused or give that explanation so that the jury may determine whether it could reasonably be true by consideration of the effect of an opposite conclusion. If the Crown may rely upon the presumption by proving simply the theft and the recent possession by the accused and leave to the accused the task of giving in evidence himself the explanation which he gave at or shortly after the time of his arrest then it has the result that the accused is driven to give testimony in his own defence. I find that result unpalatable for two reasons: firstly, it is, in my opinion, contra to the firmly established principle in the administration of criminal law that the accused need prove nothing and that each essential ingredient of the offence must be proved by the Crown beyond reasonable doubt; secondly, it submits the accused to an examination upon his previous record not in reference to the particular offence charged but generally ranging over the whole history of his conduct prior to the circumstances which resulted in his arrest on the present charge. This course may be adopted by the Crown upon the slim argument that the Crown is entitled to examine the credibility of the accused. Jurors must be warned that they are only to consider evidence so adduced upon the question of the accused’s credibility but the effect is inevitably so prejudicial to the accused person that counsel for the accused will but rarely adduce the evidence of his client if that client has a record for previous criminal convictions.
In England, the problem was dealt with long ago in s. 1(f) of the Criminal Evidence Act of 1898, which reads as follows:
1. (f) A person charged and called as a witness in pursuance of this Act shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless—
(i) the proof that he has committed or been convicted of such other offence is admissible evidence
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to show that he is guilty of the offence wherewith he is then charged; or
(ii) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution; or
(iii) he has given evidence against any other person charged with the same offence.
Unless and until a statutory provision of like import comes into effect in Canada it would seem that the number of instances in which an accused person, despite the principle that the accused need prove nothing, must go into the box to establish a defence should be minimized.
There remains, however, the problem of whether the Crown was compelled to rely in the present case upon the presumption of recent possession. It would seem that the best place to determine the course which the Crown intended to pursue in its prosecution is by consideration of the testimony of the constable who adduced the evidence upon which the jury found the two accused, this accused, Graham, and his co-accused, McKenzie, were in possession of the recently stolen goods. I have read carefully the examination-in-chief of Detective Lifton, the police officer who gave the evidence upon which the jury concluded that the two accused were in possession of the stolen goods. No place in that examination-in-chief did the Crown counsel make any reference to a statement which had been made at the time of his arrest or on any other occasion by the accused Graham or infer in any way that the accused either had or had not made any explanation. Counsel for the accused McKenzie first cross-examined Detective Lifton and after several short questions which are not relevant upon this issue asked that the jury be excluded so that he might submit to the court the question of the admissibility of other evidence which he hoped to adduce. Counsel for the accused Graham then sought, in the absence of the jury, permission to obtain from Detective Lifton evidence as to a statement made by the accused Graham in the
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police headquarters something about two hours after the arrest. This statement purported to be a complete explanation of the reason why McKenzie had in her possession the recently stolen goods. The statement was produced upon the preliminary hearing and it is recited in full in the reasons of my brother Ritchie so that I need not repeat it here. After a very extended argument, the court ruled that Detective Lifton could give in evidence a verbal statement made by the accused when Lifton found the attaché case hidden behind the chesterfield in which he said, “I have never seen that before in my life”, and a further statement made by the accused Graham when he was being conducted from the lobby of the hotel to the Detective’s automobile to be driven to the police headquarters and which statement was that “If we could get in contact with Mr. Nick Mussallem he may have something further to tell us”. The court, however, refused leave to counsel for the accused to obtain from Detective Lifton the long written statement to which I have made reference above, although the learned trial judge did permit counsel for the accused McKenzie to obtain from Detective Lifton in his cross-examination of the officer in the presence of the jury the evidence that the accused had given a statement without revealing the contents thereof.
In my view, the learned trial judge perceived the exact issue for during the argument as to the defence’s right to obtain from the police constable the evidence as to the contents of this long written statement the learned trial judge asked counsel for the accused, “May I ask you this, does the prosecution rely upon the doctrine of recent possession of stolen goods in this case?”. Although the Crown counsel answered that question, after some discussion, in the affirmative, some short time later, the Crown counsel said:
Your Honour asked me whether the Crown relies upon the doctrine of recent possession with respect to these two accused and, to clarify our position, I think I should put it this way—this is the position I take although I have not researched this: whether recent possession is a fact or not in a case is a matter of law and it is not possible for the Crown to say we
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do or don’t rely on it. It is there as evidence and it’s all very well for me to say to Your Honour or perhaps even say to the jury, it’s not necessary for our case, yet, Your Honour, it is there, and I submit that the Crown cannot take a piece of the case and say, now to the jury, don’t pay any attention to that because the Crown is not relying on it; we can say it’s a minor part of the case. Now, in this particular case, as far as that goes, I submit that the doctrine of recent possession goes to the question of knowledge and there is other evidence of knowledge that the goods were stolen on the part of Graham and McKenzie in this case, and so the Crown doesn’t have to rely on it but it’s simply there.
I have come to the conclusion that the Crown did not intend to rely upon any doctrine of recent possession but the Crown was of the view that it was adducing evidence to prove (a) the theft, (b) possession by the accused of the recently stolen goods, and (c) that the accused knew those goods had been obtained by the commission of an offence within Canada, and that any reliance upon the doctrine of recent possession was a mere make‑weight in the Crown’s case. It is perhaps significant that the learned trial judge, in his charge to the jury, did not say that the Crown did rely on the doctrine of recent possession but rather said
Now, the prosecution is entitled to invoke what is called in law the doctrine of recent possession of stolen goods.
The learned trial judge said, later in his charge:
If you the jury do not believe the explanation of the accused, Graham, then the presumption arising from recent possession of stolen goods is not rebutted and the jury may, not must, convict the accused, Graham.
It is to be noted, of course, that Graham did not give evidence at the trial and any explanation of Graham’s as referred to by the learned trial judge must have been taken from Mussallem’s evidence, McKenzie’s evidence and from
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the address to the jury given by the accused Graham who appeared without counsel and who, therefore, on his own behalf, addressed the jury after the close of the evidence.
From my survey of the course of the trial, I have come to the conclusion that the Crown, in the particular case, was not required to rely upon any doctrine of recent possession of stolen goods in order to prove its case and did not so rely. Under those circumstances, therefore, the Crown, so far as it was able, excluded from the evidence any statement or explanation given by the accused for his possession. The Crown did not, therefore, attempt to adduce the fact of either no explanation or the fact that the explanation although given could not reasonably be true in order to establish the basis for the application of the doctrine of recent possession. Under such circumstances, the attempt to adduce such explanation in the cross‑examination of the constable was an attempt by the defence to prove a defence without the production of evidence from the accused. In a case where the Crown does not rely upon the presumption arising from the unexplained possession of recently stolen goods, then the Crown is not required to produce any explanation and if there is to be the production in defence of that explanation then it must be in accordance with the ordinary rules of evidence. I am, therefore, of the opinion that the trial judge was, under the particular circumstances in this case, correct in his ruling that the explanation in this long written statement could not be produced from the constable in cross-examination and that it had to be subject to ordinary rules of evidence, that is, it had to be given in sworn testimony and not in breach of the hearsay rule.
For these reasons, I would allow the appeal and reverse the judgment of the Court of Appeal for British Columbia and restore the verdict at trial.
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Appeal allowed.
Solicitor for the appellant: J.A. Margach, Vancouver.
Solicitor for the respondent: L.E. Hill, Vancouver.
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