R. v. Clarke

R. v. Clarke

The court dismissed the application to reopen the trial because the proposed fresh evidence was untimely, self-serving, inconsistent, inadequately sworn or corroborated, likely tailored after conviction, and not reasonably capable of belief or likely to have affected the verdict under the Palmer test; accordingly the robbery conviction was upheld and the motion refused.

Citation
2009 NSPC 24
Parties
Crown: Her Majesty The Queen; Accused: Brycen Clarke
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
8 January 2009
Procedural Posture
Criminal Robbery, Assault, Theft / Post Conviction Application to Reopen Trial and for Mistrial/new Trial (motion Heard May 1, July 24 and October 30, 2008; Decision January 8, 2009)
Outcome
Motion to re-open trial and for mistrial/new trial dismissed; conviction for robbery (s.344) upheld; related assault and theft charges stayed under the Kienapple principle.
Legal Topics
Fresh Evidence, Alibi, Credibility, Mistrial/new Trial, Compelled Testimony, Kienapple Principle
Source Language
English
Criminal Law Evidence Procedural Law Fresh Evidence Alibi Credibility Mistrial/new Trial Compelled Testimony +1 more

Case Brief

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Parties

Her Majesty The Queen

Crown

Brycen Clarke

Accused

Procedural Posture

Criminal Robbery, Assault, Theft / Post Conviction Application to Reopen Trial and for Mistrial/new Trial (motion Heard May 1, July 24 and October 30, 2008; Decision January 8, 2009)

Legal Issues

  1. 1 Whether to admit fresh evidence after conviction
  2. 2 Whether proposed evidence is reasonably capable of belief
  3. 3 Whether there was due diligence in obtaining witness testimony

Ratio Decidendi

The court dismissed the application to reopen the trial because the proposed fresh evidence was untimely, self-serving, inconsistent, inadequately sworn or corroborated, likely tailored after conviction, and not reasonably capable of belief or likely to have affected the verdict under the Palmer test; accordingly the robbery conviction was upheld and the motion refused.

Court Disposition

Motion to re-open trial and for mistrial/new trial dismissed; conviction for robbery (s.344) upheld; related assault and theft charges stayed under the Kienapple principle.

Orders

  • Motion to re-open the trial dismissed.
  • Conviction for robbery under s.344(b) of the Criminal Code maintained.