Held: The appeal should
be allowed.
The trial judge erred in permitting the Crown to
call evidence rebutting certain items of evidence, pursuant to s. 11 of the Canada
Evidence Act , as no past inconsistent statement had been made in that
regard. Rebuttal evidence could not be admitted on any other ground in law.
The evidence sought to be rebutted attacked police
integrity but it did not touch on the question of guilt or innocence. It was
therefore collateral and not the proper subject of rebuttal.
Cases Cited
Referred to: R.
v. Bruno (1975), 27 C.C.C. (2d) 318; Allcock Laight & Westwood Ltd.
v. Patten, Bernard and Dynamic Displays Ltd., [1967] 1 O.R. 18; Attorney‑General
v. Hitchcock, [1847] 1 Ex. 91, 154 E.R. 38; R. v. Cargill, [1913] 2
K.B. 271; R. v. Hrechuk (1951), 58 Man. R. 489; R. v. Rafael,
[1972] 3 O.R. 238; Latour v. The Queen, [1978] 1 S.C.R. 361; R. v.
Perry and Franks (1977), 36 C.C.C. (2d) 209.
Statutes and Regulations Cited
Canada Evidence Act, R.S.C. 1970, c. E‑10, s. 11 .
Criminal Code, R.S.C. 1970, c. C‑34, s. 618(1)(a).
APPEAL from a judgment of the British Columbia Court
of Appeal (1984), 12 C.C.C. (3d) 392, dismissing an appeal from conviction by
Legg J. sitting with jury. Appeal allowed.
John Green,
for the appellant.
A. Stewart,
for the respondent.
The judgment of the Court was delivered by
1. McIntyre
J.‑‑This appeal deals with the question of when, and in what
circumstances, the Crown may be permitted to call evidence in rebuttal of the
evidence given by an accused person.
2. The appellant was charged with first
degree murder of one Hutter on or about March 13, 1981. He was convicted of
second degree murder on February 12, 1982 after a trial before a judge and
jury. His conviction was upheld in the Court of Appeal on April 11, 1984
(Taggart, Craig JJ.A., Anderson J.A. dissenting). His appeal to this Court is
under the provisions of s. 618(1)(a) of the Criminal Code, R.S.C.
1970, c. C‑34. The formal order of the Court of Appeal, which dismissed
the appellant's appeal to that court, recorded the points of law upon which
Anderson J.A. based his dissent, in these words:
i) that
the learned trial Judge erred in admitting rebuttal evidence on collateral
matters directed to the credit of the appellant;
ii) that the learned
trial Judge failed to properly instruct the jury that allegations made by Crown
Counsel during his cross‑examination of the appellant as to character,
and in his address to the jury, were of no evidentiary value and that this
failure to direct amounted to non‑direction in law; and
iii) that it was not
possible to say that the verdict of the jury would necessarily have been the
same had the errors described in i) and ii) above not been made and therefore,
the curative provisions contained in section 613(1) (b)(iii) of the
Criminal Code of Canada were not applicable.
3. The evidence revealed that the deceased
Hutter had been attempting to arrange for the purchase of a pound or more of
marijuana with the assistance of the appellant, who testified that he
trafficked in narcotics. The deceased was in contact with the appellant on the
afternoon of March 12, 1981. He was in possession of a car and some seven
hundred and fifty dollars which had been provided by one Brian Hawe, a Crown
witness. The deceased had been at the appellant's residence but had been unable
to make a drug purchase. He returned to Hawe's residence about forty‑five
minutes after leaving the appellant's home. The appellant advised Hutter that
he would try to set up a drug deal for him, and Hutter returned to Duncan, British
Columbia, where he lived.
4. On March 13, 1981, the day of the
killing, Hutter returned to the Hawe residence about 10:30 a.m. He was there
for a short time and then using Hawe's vehicle he left for the appellant's
house. Before leaving, he was given $400 in cash in four one hundred dollar
bills by Hawe towards the purchase of the pound of marijuana. Hutter arrived at
the appellant's home shortly thereafter. He was there for a short time, then
left at about 11:15 a.m., again with Hawe's vehicle.
5. At some time after his departure from
the appellant's house and before 10:45 p.m. on March 13, 1981 Hutter was
murdered. He was stabbed to death. His body was found partially covered by
leaves on March 14, 1981. There was no money found on his body. The vehicle
that Hutter had been driving was observed by an independent witness at the
University of Victoria on March 13, 1981 at about 4:30 p.m. and was again
observed in the same parking spot on March 15, 1981. The parking lot where the
vehicle was found is approximately 1.8 kilometers from where the body was
found.
6. The Crown case depended largely upon the
evidence of one Molema. He gave evidence that he was in custody at the
Vancouver Island Regional Correction Centre in Victoria in June, 1981. He
received a number of visits from the appellant, whom he had known for seven or
eight years. Molema's evidence was that during the course of these visits the
appellant had told him he had killed Hutter. Molema was unable to recall dates
and times and the exact words used in the conversation. He did recall that a
knife was involved in "a stabbing sense". He also gave evidence that
the encounter between the appellant and Hutter was over a drug deal and that
the appellant had taken $400 to $700 from Hutter. Molema also admitted to a
long criminal record.
7. The appellant gave evidence on his own
behalf. He said that he got up early on March 13, 1981 and he received a
telephone call shortly thereafter from Hutter asking if he could come down to
see the appellant. The appellant agreed that he could come. The deceased duly
arrived shortly after breakfast and asked where he could get any marijuana.
There was some discussion about the scarcity of marijuana and the price of
drugs. Hutter told the appellant that he had to return the vehicle he was
driving to Hawe. The appellant asked Hutter for a ride. He wished to visit some
friends who lived in the direction he thought Hutter was going. They left the
appellant's residence in Hawe's car but when it became apparent that Hutter was
not going in the direction the appellant had hoped, he got out of the car and
continued his journey on foot. Hutter, according to the appellant, did not tell
him where he was going. The appellant accounted for his whereabouts for the
remainder of the day by saying that he reached his friend's apartment, that is,
his destination, at about 11:15 or 11:30 a.m. The friend was absent. He then
recalled that his appointment had been for 1:00 p.m. He went on foot to his bank
where he deposited $100 in his account. The deposit was recorded by the bank's
computer at 12:59 p.m. He then went to a nearby shopping centre where he made
some purchases, then took a taxi to his friend's house and returned home later
in the afternoon.
8. A Crown witness, one Macaulay, who was
an admitted supplier of narcotics to the appellant, called at the appellant's
residence at 4:30 p.m. on March 13 and the appellant paid him $600 or $700 in
large bills. This was money owed on account. Later in the evening Crown
witnesses placed the appellant at a local pub with a group of friends and later
in a restaurant, where the appellant bought food for his friends and then went
home by taxi.
9. I have gone into some detail on the
facts above described in order to make clear the background against which the
main point at issue, that of rebuttal evidence, arose. The trial lasted for
some ten days. The first two days were taken up in a voir dire, which
was conducted in order to determine the admissibility of certain statements
made by the appellant to police officers in a series of conversations which
took place during the investigation. The appellant was interviewed by police
officers on March 26, March 31, April 1, April 6 and April 23. During these
interviews or conversations he was questioned regarding the murder of Hutter
and he gave answers which were largely exculpatory. These conversations were
the subject of the voir dire. The answers made to the questions by the
appellant were all held to be voluntary and were all held to be admissible. The
Crown, however, had made it clear to all parties that it did not intend to
adduce the questions and answers in evidence‑in‑chief, but would
use them in cross‑examination if the need arose. It is the rebuttal
evidence led by the Crown to rebut answers given by the accused in such cross‑examination
and statements made by the accused during his direct examination which raise
the principal issue in this case.
10. The appellant, in addition to giving the
evidence summarized earlier, also gave evidence of his involvement with the
police during the investigation of the murder. The points of significance for
our purposes in this case may be summarized, as follows:
11. He swore that:
1. It seemed to be a
regular thing for the police to come and ‘grab’ him and take him down to the
Station.
2. The police had
suggested to him that if he did not tell them where he had sent Hutter to look
for marijuana, they were going to "kick in the doors" of known drug
dealers and tell them that the appellant sent Hutter there looking for
marijuana.
3. The police showed
him a photograph of the deceased when they first interviewed him on March 26,
1981.
4. He had not told
the police officers that he had never dealt with Hutter in a dope deal, but
rather that the statement was taken out of context and that he had told them
that he had never dealt with Hutter prior to January, 1981.
In cross‑examination the appellant was questioned extensively
regarding his statements to the police. It was put to him that he had told the
officers that he had never dealt with Hutter in a dope deal when he had told
him where to go.
12. At the close of the defence case the Crown
applied to call rebuttal evidence, pursuant to s. 11 of the Canada Evidence
Act, R.S.C. 1970, c. E‑10. The Crown was relying solely on s. 11 for
this application and sought to use the rebuttal evidence solely for the purpose
of impeaching the credit of the appellant. The trial judge granted the Crown's
motion and allowed the calling of evidence in rebuttal in these words:
Thank
you. My ruling is that the Crown should have leave to call the rebuttal
evidence that has been outlined, dealing with the statement previously made or
alleged to have been made by the accused man. In my view the Crown is permitted
to lead this evidence under section 11 of the Canada Evidence Act .
13. In the Court of Appeal the majority were
of the opinion that the trial judge had been in error in his application of s.
11 of the Canada Evidence Act , which he relied on in allowing the Crown
to call the rebuttal evidence. The four points upon which the rebuttal evidence
was permitted have been enumerated above. Of these points, items 1, 2 and 3 did
not involve any past inconsistent statements on the part of the appellant. All
of the judges of the Court of Appeal were in agreement that s. 11 could not
apply to the first three items and that it was an error on the part of the
trial judge to permit the calling of rebuttal evidence in respect of them. The
majority, however, were of the view that rebuttal on items 1, 2 and 3 was
supportable on another ground, that of relevance on the question of guilt or
innocence, and that while the trial judge had misapplied s. 11 of the Canada
Evidence Act on the question, the rebuttal evidence was nonetheless admissible
and no error in law occurred. It was not contended that any error occurred in
the application of s. 11 to the fourth item and no issue arises respecting that
item. Anderson J.A., in dissent, was of the view that the rebuttal evidence did
not go to issues relevant to the guilt or innocence of the appellant, but were
merely collateral. Therefore, while cross‑examination of the appellant by
counsel for the Crown upon those items was proper, the Crown was bound by the
answers given and was not entitled to call evidence to rebut the answers given
in such cross‑examination.
14. The first ground, as set out in the formal
order of the Court of Appeal, and by far the most important in this case,
alleges error on the part of the trial judge in permitting the Crown to call
evidence in rebuttal of the appellant's testimony after the conclusion of the
defence case.
15. At the outset, it may be observed that the
law relating to the calling of rebuttal evidence in criminal cases derived
originally from, and remains generally consistent with, the rules of law and
practice governing the procedures followed in civil and criminal trials. The
general rule is that the Crown, or in civil matters the plaintiff, will not be
allowed to split its case. The Crown or the plaintiff must produce and enter in
its own case all the clearly relevant evidence it has, or that it intends to
rely upon, to establish its case with respect to all the issues raised in the
pleadings; in a criminal case the indictment and any particulars: see R. v.
Bruno (1975), 27 C.C.C. (2d) 318 (Ont. C.A.), per Mackinnon J.A., at
p. 320, and for a civil case see: Allcock Laight & Westwood Ltd. v.
Patten, Bernard and Dynamic Displays Ltd., [1967] 1 O.R. 18 (Ont. C.A.), per
Schroeder J.A., at pp. 21‑22. This rule prevents unfair surprise,
prejudice and confusion which could result if the Crown or the plaintiff were
allowed to split its case, that is, to put in part of its evidence‑‑as
much as it deemed necessary at the outset‑‑then to close the case
and after the defence is complete to add further evidence to bolster the
position originally advanced. The underlying reason for this rule is that the
defendant or the accused is entitled at the close of the Crown's case to have
before it the full case for the Crown so that it is known from the outset what
must be met in response.
16. The plaintiff or the Crown may be allowed
to call evidence in rebuttal after completion of the defence case, where the
defence has raised some new matter or defence which the Crown has had no
opportunity to deal with and which the Crown or the plaintiff could not
reasonably have anticipated. But rebuttal will not be permitted regarding
matters which merely confirm or reinforce earlier evidence adduced in the
Crown's case which could have been brought before the defence was made. It will
be permitted only when it is necessary to insure that at the end of the day
each party will have had an equal opportunity to hear and respond to the full
submissions of the other.
17. In the cross‑examination of
witnesses essentially the same principles apply. Crown counsel in cross‑examining
an accused are not limited to subjects which are strictly relevant to the
essential issues in a case. Counsel are accorded a wide freedom in cross‑examination
which enable them to test and question the testimony of the witnesses and their
credibility. Where something new emerges in cross‑examination, which is
new in the sense that the Crown had no chance to deal with it in its case‑in‑chief
(i.e., there was no reason for the Crown to anticipate that the matter would
arise), and where the matter is concerned with the merits of the case (i.e. it
concerns an issue essential for the determination of the case) then the Crown
may be allowed to call evidence in rebuttal. Where, however, the new matter is
collateral, that is, not determinative of an issue arising in the pleadings or
indictment or not relevant to matters which must be proved for the
determination of the case, no rebuttal will be allowed. An early expression of
this proposition is to be found in Attorney‑General v. Hitchcock,
[1847] 1 Ex. 91, 154 E.R. 38, and examples of the application of the principle
may be found in R. v. Cargill, [1913] 2 K.B. 271 (Ct. Crim. App.); R.
v. Hrechuk (1951), 58 Man. R. 489 (C.A.); R. v. Rafael, [1972] 3
O.R. 238 (Ont. C.A.); and Latour v. The Queen, [1978] 1 S.C.R. 361. This
is known as the rule against rebuttal on collateral issues. Where it applies,
Crown counsel may cross‑examine the accused on the matters raised, but
the Crown is bound by the answers given. This is not to say that the Crown or
the trier of fact is bound to accept the answers as true. The answer is binding
or final only in the sense that rebuttal evidence may not be called in
contradiction. It follows then that the principal issue which arises on this
branch of the case is whether the issues arising out of items 1, 2 and 3 are
collateral in the sense described or relevant as going to a determinative issue
in the case.
18. The Crown's application to call rebuttal
evidence was made under s. 11 of the Canada Evidence Act , which
provides:
11. Where a witness upon cross‑examination as to a former statement
made by him relative to the subject‑matter of the case and inconsistent
with his present testimony, does not distinctly admit that he did make such
statement, proof may be given that he did in fact make it; but before such
proof can be given the circumstances of the supposed statement, sufficient to
designate the particular occasion, shall be mentioned to the witness, and he
shall be asked whether or not he did make such statement.
I am in full agreement with the judges of the Court of Appeal that s.
11 could have no application to items 1, 2 and 3, no past inconsistent
statement having been made regarding those items by the appellant. As has been
noted, there was no error in this respect regarding item 4. We are then only
concerned with items 1, 2 and 3. In dealing with these items, the first
question is: Did other grounds exist which would justify the admission of the
rebuttal evidence? Craig J.A., in the Court of Appeal, considered such other
grounds did exist. He was of the view that the issues arising from items 1, 2
and 3 were not collateral issues but were relevant. Therefore, Crown evidence
by rebuttal was admissible. He said, in R. v. Krause (1984), 12 C.C.C.
(3d) 392 (B.C.C.A.), at p. 405:
One sometimes reads, or
hears, a statement that credibility is a collateral issue. This is misleading.
Credibility may be a secondary issue in a particular case, the primary issue
being whether the Crown is able to establish the guilt of the accused beyond a
reasonable doubt, but it is always an underlying issue. Evidence of the former
words and conduct of a witness which is unrelated to the circumstances in issue
is inadmissible either because it is immaterial or because it is irrelevant. It
is collateral in both senses of the word. To the extent, however, that the
former words and conduct of a witness may bear on his credibility in the case
before the court, he may be questioned about them, but his answers may not be
contradicted because to permit such a contradiction would cause confusion of
issues, surprise and unfair prejudice. On the other hand, a person's words and
conduct in relation to the case before the court are not collateral. They are
very relevant. In this case, the main fact in issue was whether Krause had
killed Barry Hutter on or about March 13th. The Crown adduced evidence to prove
that he had killed Hutter. Krause denied that he killed Hutter. His words and
actions pertaining to the circumstances of this case were relevant to the main
fact in issue and, also, to Krause's credibility.
Taggart J.A. was essentially in agreement with Craig J.A. Anderson
J.A., dissenting, considered that the issues dealt with in rebuttal were
collateral and, accordingly, not the proper subject of rebuttal evidence.
19. It will be seen that there was no
disagreement between the majority and the minority in the Court of Appeal with
respect to the law which should be applied on this point. The sole point of
departure was the differing view on the nature of the issues raised by items 1,
2 and 3. The majority found the issues relevant and material to the
determination of the principal issue of guilt or innocence. The dissent found
them limited only to the collateral issue of credibility.
20. There was one principal issue raised in
this case, that is, did the appellant kill Hutter or did he not? Evidence
bearing on that issue would be clearly material and admissible and in no way
collateral. The evidence in respect of which rebuttal was allowed dealt in item
1 with the appellant's assertion that the police harassed him before his
arrest. He said it seemed to be a regular thing for the police to come and
`grab' him and take him down to the station. Item 2 dealt with further
harassing and intimidating conduct on the part of the police, an alleged threat
to put pressure on other drug dealers, telling them that the appellant had sent
Hutter to them to get marijuana. Item 3 dealt with an allegation that during
the course of the investigation the police had shown the appellant a gory
photograph of Hutter's body. Were the points so raised material and relevant in
deciding the issue‑‑did the appellant kill Hutter?
21. It should be observed that the Crown chose
in this case to proceed without making the accused's out‑of‑court
statements part of its case. To establish guilt, the Crown relied on the
evidence of one Molema and one Macaulay, whose evidence has been referred to
above, and on various other witnesses who developed the Crown's case against
the appellant. The Crown in closing its case was doing so without any police
evidence regarding the statements or conversations between the police and the
appellant. Although the admissibility of the conversations had been established
in the voir dire, they were not read in evidence in the Crown's case. It
seems clear that‑‑at least up to the time when the Crown closed its
case‑‑it did not consider the evidence relevant to that issue. It
may be suggested, however, that the evidence given by the accused at trial made
the police version of the conversations relevant. This, however, is a
conclusion I cannot reach. The evidence of the appellant reflected on the
integrity of the police‑‑though not on that of any police witness
who gave evidence as part of the Crown's case‑in‑chief‑‑but
it did not touch upon the question of guilt or innocence. I am unable to say
that the rebuttal evidence, which merely answered allegations made by the
appellant and did not touch questions relating to his guilt or innocence, was
relevant on that issue. The fact that evidence is introduced by the defence‑in‑chief
does not make it a proper subject for rebuttal evidence unless it is otherwise
relevant to a matter other than credibility: see Cargill, supra,
and Hretchuk, supra. In my view, in agreement with Anderson J.A.
in his dissent, the issues made the subject of rebuttal were collateral, as
being neither material nor relevant on the issue of guilt or innocence. The
Crown was entitled to cross‑examine and did cross‑examine the appellant
on this matter. The Crown, however, was bound by the answers and was not
entitled to call evidence in rebuttal. A somewhat similar case is to be found
in the case of R. v. Perry and Franks (1977), 36 C.C.C. (2d) 209 (Ont.
C.A.) I adopt here the approach taken in that case by Dubin J.A. If the
evidence of what passed between the police and the appellant during the
investigation was relevant and material, it should have been introduced in
chief. To allow it to be introduced by rebuttal evidence would be to allow the
Crown to split its case. If, on the other hand, it was not relevant and
material, and did not become relevant and material to the question of guilt or
innocence or to a defence, (for example, an alibi arising for the first time
during the accused's case‑in‑chief), no rebuttal evidence should
have been permitted. I would therefore resolve this issue against the Crown,
holding that it was error on the part of the trial judge to permit the Crown to
call evidence in rebuttal under s. 11 of the Canada Evidence Act and
that the allowance of rebuttal evidence could not be supported on any other
ground in law. I would allow the appeal and direct a new trial, In view of my
disposition of this issue, it is unnecessary to deal with the remaining points.
Appeal allowed.
Solicitors for the appellant: Turnham, Green &
Co., Victoria.
Solicitor for the respondent: Attorney General of
British Columbia, Victoria.
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