R. v. Newman

2012 BCSC 2119 R. v. Newman IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Newman, 2012 BCSC 2119 Date: 20121113 Docket: 25031 Registry: Vancouver Regina v. Michael Bruce Newman Before: The Honourable Mr. Justice Ehrcke Oral Ruling on Voir Dire Evidence Counsel for the Crown: G.C. Proulx E. Leno Counsel for the Accused: M. Peters M. Vis-Dunbar Place and Date of Trial: Vancouver, B.C. October 15-19, 22-26, 30 and 31, 2012 November 1,5-9, and 13, 2012 Place and Date of Judgment: Vancouver, B.C. November 13, 2012 [1] THE COURT: On issues of relevance generally, it is always the case that counsel know more about the case than the trier of fact does until the very end of the trial, because you all know what might be coming in more detail than what I do. So it is both difficult and to some extent dangerous to be too aggressive in making rulings that some evidence cannot come in because I have difficulty seeing now why it is relevant. An interesting example is the one at the end here about turning the wallet over to the investigators. I do not know whether that will ever become relevant, but it might. I have difficulty saying now with certainty that I can be sure that that could not possibly be relevant. [2] So my inclination is not to exclude something simply on the basis of an objection that its relevance is not at this time obvious, unless -- and here is the more important concern -- there is something prejudicial about the nature of the evidence. [3] So with respect to all of the portions that are objected to, I have difficulty seeing that there is any prejudice to admitting the evidence. I do not see that there is prejudice to being told that there was a large sum of money in the wallet. For one thing, it is indefinite, could mean anything. We are not getting into the specifics of how much it was. It is pretty standard when somebody is arrested for there to be evidence of this person being searched and what was on his person. So I am inclined to let that in. I do not see the prejudice. [4] Similarly for turning the wallet over to the investigators; this may be the last that we hear of that. Whether it is or it is not, there is nothing particularly to be gained by excluding this evidence and nothing to be -- I do not see any danger in admitting it. [5] So the remaining portion has to do with the injuries. I have ruled the evidence of flight not to be admissible and in retrospect, knowing what I know about the evidence that went in on the voir dire, I can surmise that this evidence was probably led on the voir dire as a consequence of the fact that there was the flight and the struggle. But I am now looking at this from the point of view of the trier of fact, as if I were the jury, and simply hearing this evidence at trial and not having heard anything on the voir dire. So if I am sitting as the jury, the trier of fact, and I hear this evidence come in that the police were asked whether at the time of his arrest the officer noted any injuries to his head and the officer says no, there is no reason that I would take that to be something that reflects badly on the character of the accused or evidence of something discreditable that he has done. [6] Generally, even after a ruling of voluntariness has been made by the trial judge, the trier of fact is still entitled to hear the same kind of evidence about factors that could affect the reliability of a statement that the judge has already heard. In other words, the judge's ruling that the statement is voluntary does not deprive the trier of fact of the responsibility of still evaluating that statement and deciding how much, if any, weight the trier of fact chooses to put on the statement. [7] So it seems to me that this is the kind of evidence that would be unobjectionable before a jury on that basis, just to cover off the possibility that they may wonder whether the things that he said are unreliable because he had some kind of injury that was not covered off by the Crown. It may be kind of marginal, but I do not see any prejudice in admitting this evidence, since the way it is coming in, it is completely disconnected to any suggestion that it arose from anything in particular done by Mr. Newman at the time of his arrest. [8] So with respect to Constable Joseph's evidence, I am ruling in favour of the Crown on those areas that were in dispute. The Honourable Mr. Justice W.F. Ehrcke