R. v. Hernandez

R. v. Hernandez

Detective Neil's lay opinion on voice identification is admissible; its evidential weight will be assessed by the trial judge based on factors such as familiarity with the accused and the basis for her opinion. The Crown may rely on statements or recordings for voice identification without leading them for their...

Source-derived case information.

Citation
2008 BCSC 1476
Parties
Crown: Regina; Accused: Jose Hernandez; Accused: Anh The Nguyen; Accused: Joshua Ponicappo; Accused: Sam Tuan Vu; Accused: Van Van Vu
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
12 August 2008
Procedural Posture
Criminal / Oral Ruling on Admissibility of Voice Identification Evidence Prior to Main Trial; Voir Dire Not Held
Outcome
Court admitted the proposed lay voice identification evidence of Detective Neil subject to limitation and ruled on the scope of reliance on various materials; imposed publication bans for certain witnesses and a named individual
Legal Topics
Voice Identification, Lay Opinion Evidence, Admissibility, Voir Dire, Use of Inadmissible Evidence in Opinion Evidence, Publication Ban S.486.5(1)
Source Language
english
Criminal Law Evidence Law Charter Law Publication Ban / Court's Inherent Jurisdiction Voice Identification Lay Opinion Evidence Admissibility Voir Dire +2 more

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Parties

Regina

Crown

Jose Hernandez

Accused

Anh The Nguyen

Accused

Joshua Ponicappo

Accused

Sam Tuan Vu

Accused

Van Van Vu

Accused

Procedural Posture

Criminal / Oral Ruling on Admissibility of Voice Identification Evidence Prior to Main Trial; Voir Dire Not Held

Legal Issues

  1. 1 Whether lay voice identification evidence from Detective Neil is admissible
  2. 2 Whether opinion evidence based on statements or recordings not led for their truth may be relied upon for voice identification
  3. 3 Whether opinions that rely on evidence previously ruled inadmissible must be excluded

Ratio Decidendi

Detective Neil's lay opinion on voice identification is admissible; its evidential weight will be assessed by the trial judge based on factors such as familiarity with the accused and the basis for her opinion. The Crown may rely on statements or recordings for voice identification without leading them for their truth absent a voir dire, but the judge will disregard any portion of the opinion that, in his assessment, depends on material already ruled inadmissible (for example involuntary or Charter‑breached statements or calls). The Van Vu statement may be used for voice identification only and not for its truth without a voir dire; defence may cross-examine on the premises of the opinion...

Court Disposition

Court admitted the proposed lay voice identification evidence of Detective Neil subject to limitation and ruled on the scope of reliance on various materials; imposed publication bans for certain witnesses and a named individual

Orders

  • Publication ban under Criminal Code s.486.5(1) and inherent jurisdiction: no publication or broadcast of information identifying Witness X or Witness Y; they are to be referred to as Witness X and Witness Y
  • Ban on publication or broadcast of information identifying the person referred to as "Mr. Z"; he may be referred to as Mr. Z in any publication