R. v. Christhurjah

R. v. Christhurjah

Where a witness makes an in‑court identification, evidence of prior out‑of‑court photographic identification is admissible under the first branch of Tat and Starr to explain the circumstances leading to the in‑court identification; neither Crown nor defence omission to ask the witness about prior identification bars admission of evidence of that prior identification; any prejudice from late reliance is cured by recalling the witness for further cross‑examination; CBSA handwritten notes were administrative and not part of a criminal investigation so their destruction does not warrant exclusion of the witness evidence; Applications 43 and 44 are therefore dismissed with the condition that...

Citation
2016 BCSC 2552
Parties
Crown: Regina; Accused: Kunarobinson Christhurajah; Accused: Lesly Jana Emmanuel; Accused: Nadarajah Mahendran; Accused: Thampeernayagam Rajaratnam
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
14 December 2016
Procedural Posture
Criminal (offence Contrary to S.117, Immigration and Refugee Protection Act) / Trial (jury) — Oral Ruling on Pretrial Identification Applications (applications 43 and 44)
Outcome
Applications Number 43 and Number 44 dismissed.
Legal Topics
Identification Evidence, Prior Identification Exception to Hearsay, Past Recollection Recorded, Destruction of Notes/preservation Duties, Prejudice and Admissibility, Disclosure and Trial Fairness
Source Language
English
Criminal Law Immigration Law Evidence Law Charter Law Identification Evidence Prior Identification Exception to Hearsay Past Recollection Recorded Destruction of Notes/preservation Duties +2 more

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Parties

Regina

Crown

Kunarobinson Christhurajah

Accused

Lesly Jana Emmanuel

Accused

Nadarajah Mahendran

Accused

Thampeernayagam Rajaratnam

Accused

Procedural Posture

Criminal (offence Contrary to S.117, Immigration and Refugee Protection Act) / Trial (jury) — Oral Ruling on Pretrial Identification Applications (applications 43 and 44)

Legal Issues

  1. 1 Whether evidence of prior out-of-court photographic identification may be admitted where the witness made an in-court identification
  2. 2 Whether the Crown is precluded from leading police evidence of pretrial identification because neither party asked the witness about it at trial
  3. 3 Whether destruction of CBSA handwritten notes requires exclusion of the witness evidence

Ratio Decidendi

Where a witness makes an in‑court identification, evidence of prior out‑of‑court photographic identification is admissible under the first branch of Tat and Starr to explain the circumstances leading to the in‑court identification; neither Crown nor defence omission to ask the witness about prior identification bars admission of evidence of that prior identification; any prejudice from late reliance is cured by recalling the witness for further cross‑examination; CBSA handwritten notes were administrative and not part of a criminal investigation so their destruction does not warrant exclusion of the witness evidence; Applications 43 and 44 are therefore dismissed with the condition that...

Court Disposition

Applications Number 43 and Number 44 dismissed.

Orders

  • Crown permitted to call RCMP Sgt. Gregory to testify about the October 12, 2010 photographic identification of Mr. Gandhi (selection of a photograph of Mr. Rajaratnam)
  • Crown permitted to call CBSA officer Sean Murphy to testify about the September 20, 2010 photographic identification of Mr. Gandhi