R. v. F., G.

R. v. F., G. Collection Decisions of the Court of Appeal Date 1999-01-20 Docket numbers C22590 Judges Morden, John Wilson; Austin, Allan McNiece; Rosenberg, Marc Subject Criminal Decision Content DATE: 19990120 DOCKET: C22590 COURT OF APPEAL FOR ONTARIO MORDEN A.C.J.O., AUSTIN and ROSENBERG JJ.A. BETWEEN: ) ) James Lockyer, HER MAJESTY THE QUEEN ) for the appellant ) (Respondent) ) ) and ) Hugh Ashford, ) for the respondent G. F. ) ) (Appellant) ) ) Heard: December 1, 1998 ) ROSENBERG J.A.: [1] On March 16, 1995, the appellant was convicted of sexual assault by a court composed of Stayshyn J. and a jury. On May 1, 1995, he was sentenced to five years' imprisonment. After serving almost two and one-half years of that sentence, the appellant applied for and was released on bail pending appeal. The successful bail application was prompted by the discovery of DNA evidence that the appellant argues should be admitted as fresh evidence on his appeal from conviction. The appellant also seeks to introduce other “fresh evidence” concerning the culpability of one S.H. For the reasons that follow, I would admit portions of the proposed fresh evidence, allow the appeal, quash the conviction, and order a new trial. THE FACTS The Trial Evidence [2] The sexual assault in this case allegedly occurred in the early morning hours of November 23, 1993 in the complainant’s bedroom. The complainant was living in a house owned by her parents. S.H. was renting a bedroom on the second floor of this house. The appellant was S.H.'s friend. The jury heard evidence that the complainant and S.H. had been “intimate”. The nature of the relationship was not further explored at the trial. Defence counsel did not seek to introduce evidence of that relationship by way of an application under s. 276 of the Criminal Code. [3] On November 22, 1993, S.H., the appellant and the complainant were painting the walls in the complainant’s home. They were all drinking. Between 7:00 p.m. and 8:15 p.m., they consumed twelve bottles of beer. They then went out to buy more alcohol. They returned with a “mickey” of vodka as well as a 40- ounce bottle of vodka, and resumed drinking and painting. [4] At one point during the evening the complainant was standing on a ladder, painting. S.H. approached her and pulled down her track pants and underwear to her knees. According to the complainant, S.H. laughed and the appellant remarked that he would: “like to get ahold of that”. The complainant was angry; she swore at S.H. and then sat on the couch and telephoned her ex- boyfriend. The appellant sat beside her and touched her thigh with his hand three times. The complainant told him not to touch her. The complainant had her last drink at 10:50 p.m. and went to bed between midnight and 1:00 a.m. By then, the beer and the mickey of vodka were finished, and S.H. and the appellant were starting to drink the remaining 40-ounce bottle of vodka. [5] Before the complainant went to bed, she locked her bedroom door, took out her hearing aid and took off her eyeglasses. She testified that without her glasses she could not see distances well. She went to bed wearing a T-shirt, a bra and pink underwear. [6] The complainant testified that in the early hours of November 23, 1993, she awoke to find a man having sexual intercourse with her. She testified that his penis was only in her vagina for a couple of seconds. Her room was dark. She testified that she placed her left hand on the man’s forehead and felt no hair. She told him to get out of her room. The complainant testified that as the assailant left her bedroom, she could see him because of the light from the other room. She testified he was wearing blue acid washed jeans and was not wearing a shirt. She also testified that she could see the person’s features; the complainant identified him as the appellant. [7] The appellant has a receding hairline and was wearing blue acid wash jeans on the night of November 22, 1993. S.H. has a “full head of hair” and was also wearing blue acid wash jeans that evening. [8] The complainant’s underwear had been removed during the sexual assault. The complainant put on a different pair of underwear and her housecoat. She went out into the living room where S.H. and the appellant were sitting and told the appellant she was calling her mother and then calling the police. [9] S.H. insisted that he, not the appellant, had been the person in the complainant’s bedroom. S.H. tried to persuade her not to call the police. The complainant testified that S.H. threatened her, saying: “If you end me up in jail for a long time I will kill you, I will come after you, me or my friend.” S.H. also took the telephone off the hook so that the complainant was unable to call her mother. When the complainant’s mother did arrive, she was unable to telephone the police for a time as S.H. refused to get off the telephone. She testified that throughout the evening S.H. repeated that he had been the one in the complainant’s bedroom and that he was going to kill the complainant if he had to go to jail. She also testified, however, that she overheard the appellant saying to S.H.: “I don’t know why you’re fucking lying for me, you don’t have to lie, I did it, I had a good time, I think I’ll do it again.” [10] At 4:18 a.m. Police Constable Eleftheriou arrived at the complainant’s home and arrested the appellant. After the arrest, S.H. became hostile and said that the appellant had been sleeping on the couch and had not done anything. S.H. said that he, not the appellant, had raped the complainant. [11] At the time of his arrest, the appellant was not wearing underwear. The appellant was quiet and reasonably co-operative, smelled somewhat of alcohol and had bloodshot eyes. At the police station about three hours later, the appellant was described as still being intoxicated. His speech was slurred and rambling. When he was asked whether he knew why he had been arrested, the appellant said: “I’m a rapist.” [12] The complainant was examined at a hospital. The vaginal area was normal and the results as to whether the complainant’s vagina had been recently penetrated were inconclusive. No evidence of ejaculation was found inside her vagina. Her clothing, including two pairs of underwear, the pink pair that she was wearing at the time of the assault and the white pair that she wore to the hospital, were also taken for testing. Semen was found on the white pair of underwear. [13] The police also conducted an investigation at the complainant’s bedroom. A police officer found a pair of men’s underwear bearing the label “K. Beeching” in the complainant’s bed. At trial, the complainant testified that she had never seen the underwear before, that she does not know a “K. Beeching” and that the underwear was not in her bed when she made it the morning before the assault. The men’s underwear was examined and tested by the Centre of Forensic Sciences and semen was detected. The appellant voluntarily provided bodily samples for DNA testing. DNA testing performed prior to the trial excluded the appellant from being the donor of the semen. The expert testified that traces of DNA can remain on clothing even after it has been washed. No efforts were made by the Crown or the defence to obtain a bodily sample from S.H. for the purposes of DNA testing. [14] At trial, the jury heard that the investigating officer was told that S.H. had made inculpatory statements to the police officers at the scene. Two days after the assault, the investigating officer interviewed S.H.. S.H. gave a statement but refused to sign it. S.H. did not testify at the trial and no efforts were made by the defence to lead evidence as to the contents of the statement at the trial. [15] The appellant testified at his trial. He confirmed most of the complainant’s testimony as to the events before the complainant went to sleep. However, he denied saying that he would “like to get ahold of that” when S.H. pulled down the complainant’s track pants and he denied touching the complainant’s leg. His evidence was that he fell asleep on the couch and woke up to be told the police were coming to the house. He denied entering the complainant’s bedroom and he denied sexually assaulting her. He also denied ownership of the K. Beeching underwear and testified that he was not wearing underwear at all that night. The Fresh Evidence [16] The fresh evidence falls into two categories: The first concerns further DNA testing done after friends of the appellant were able to obtain bodily samples from S.H.; the other concerns the proposed testimony of S.H. and his various inculpatory statements. [17] Turning to the first category of evidence, the semen found on the “K. Beeching” underwear belonged to S.H.. Bodily substances found on the white underwear that the complainant wore to the hospital contained a mixture of semen from S.H. and bodily substances from the complainant. Testing of the pink underwear that the complainant wore to bed before the assault did not yield any results. The appellant also seeks to introduce a hospital record relating to the complainant’s examination following the assault. According to this record, the complainant stated that she had not had intercourse within a week of the assault. [18] S.H.'s utterances and proposed testimony may be summarized as follows. The morning of the assault, S.H. told several police officers that the appellant was not a rapist, that the appellant was asleep the whole time and never left the living room, that S.H. would not have let anyone rape the complainant, that she was “crazy” and that nothing happened. In the unsigned statement to the investigating officer, S.H. indicated that the appellant passed out a short time after the complainant went to bed. S.H. stayed in the living room and continued to drink. At about 3:00 a.m. the complainant came out of the bedroom yelling that the appellant had raped her. The appellant had been asleep the whole time. S.H. admitted telling the other officers that he, not the appellant, had raped the complainant. He said he did that so the police would arrest him rather than the appellant. [19] The appellant also seeks to introduce the evidence of friends of S.H. who accompanied him to the police station. According to them, before the interview with the investigating officer, S.H. said that he had consensual intercourse with the complainant in her bedroom on the night of the assault, but he had not raped her. After the interview, S.H. went to the appellant’s sister’s home where he told her and the appellant’s mother that he had told the police that he had intercourse with the complainant but did not rape her and that the appellant had nothing to worry about. S.H. repeated this story about two years later. [20] Prior to the appeal, S.H. was cross-examined by counsel for the appellant. In summary, S.H. said that he had consensual intercourse with the complainant on a regular basis and had intercourse with her the day before the assault. He testified that the night of the assault he fell asleep on the couch in the living room. He was then awakened by the complainant yelling that the appellant had raped her. He never saw the appellant in the complainant’s room. S.H. claimed to have no memory of most of the inculpatory utterances he reportedly made to the police that night. He denied making the statements attributed to him by his friends and by the appellant’s relatives. S.H. denied the “K. Beeching” underwear was his, even when confronted with the results of the DNA testing. [21] The appellant’s trial counsel also provided an affidavit and he was cross-examined prior to trial. This evidence principally relates to the due diligence factor for admission of fresh evidence. Counsel stated that he originally intended to call S.H. as a defence witness in the expectation that S.H. would admit that he, not the appellant, had been in the bedroom with the complainant. Counsel did not speak directly to S.H. and was relying on what the appellant told him. Attempts were made to serve a subpoena upon S.H. without success. As the trial transcript discloses, counsel was given an opportunity to apply for a material witness warrant. After consulting with the appellant, counsel decided not to seek the warrant. Trial counsel had begun to doubt that S.H. would confess and was concerned that S.H. would bolster the Crown’s case by denying that he had done anything to the complainant. Counsel stated that had he had the new DNA evidence, he would have elected to pursue the application for a material witness warrant. ANALYSIS [22] In addition to asking this court to consider the fresh evidence that I have outlined, the appellant also raises grounds of appeal relating to the charge to the jury. In particular, the appellant submits that the trial judge did not adequately present the theory of the defence or the evidence in support of that defence and failed to adequately direct the jury on the frailties of the identification evidence. The charge to the jury [23] I would not give effect to either of these grounds of appeal. There was no objection to the charge to the jury. The trial judge fully reviewed the evidence at trial, including the evidence of the appellant and the forensic evidence, which tended to exculpate the appellant. The trial judge expressly, albeit briefly, warned the jury about the frailties of the identification evidence and the risk of mistake. This was not a classic identification case. If the sexual assault occurred, it could only have been committed by one of two people both of whom were known to the complainant and were apparently different in appearance. [24] The appellant also submits that the trial judge erred in directing the jury that the complainant’s emotional condition after the assault was consistent with her evidence that the appellant assaulted her. The trial judge said: Evidence that the incident left the complainant emotionally upset or hysterical may be regarded by you as supporting her evidence that there was no consent to any sexual assault upon her. You will consider whether the physical and emotional condition of [the complainant], her appearance and her demeanour were consistent with her evidence that the accused had intercourse with her against her will. [25] When this direction is considered as a whole, the jury would understand that this evidence was relevant only to whether the act occurred without the complainant’s consent. [26] The appellant also submits that the trial judge failed to adequately instruct the jury as to the evidence in support of the theory that S.H. committed the offence. In my view, there was no misdirection in this respect. The trial judge reviewed most of this evidence. He specifically drew to the jury’s attention the statements that S.H. made at the scene when he claimed that he, not the appellant, had raped the complainant as well as S.H.'s threats to the complainant. He told the jury that it was a defence theory that it was S.H. who assaulted the complainant while the appellant was asleep. The trial judge fully and accurately summarized the forensic evidence. [27] The appellant submits that the trial judge erred in failing to direct the jury that the comments made by S.H. were admissible for their truth. Defence counsel did not make an application at the trial to have that evidence admitted for its truth. Counsel for the appellant argues that this evidence was admissible as part of the res gestae. I do not agree. In R. v. Clark (1983), 7 C.C.C. (3d) 46 (Ont. C.A.), leave to appeal to Supreme Court of Canada refused (1983), 7 C.C.C. (3d) 46n, Dubin J.A. reviewed the res gestae exception to the hearsay rule. In his discussion of the exception, he adopted the terminology used by Professor Wigmore of “spontaneous exclamation”. At p. 59 he held: The basis of its admissibility as such is discussed in Wigmore on Evidence, 3rd ed. (Chadbourn rev. 1976), vol. VI, p. 195, § 1747, as follows: (1) General principle of the exception. This general principle is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or at least as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker's belief as to the facts just observed by him; and may therefore be received as testimony to those facts. [Emphasis added.] [28] In my view, the statements attributed to S.H. at the scene do not meet this test and were not admissible for their truth under the res gestae or spontaneous exclamation exception. The circumstances as revealed at the trial do not indicate that the statements were made under “the immediate and uncontrolled domination of the senses”. S.H. himself had not been subject to any attack or other event that would show that his statements were “a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock”. The circumstances do not suggest the application of any other established exceptions to the hearsay rule, including the penal interest exception: see R. v. Demeter (1977), 35 C.C.C. (2d) 137 (S.C.C.). [29] Counsel for the appellant submitted that these utterances (as well as other utterances that form part of the fresh evidence) could be admissible under the principled approach to exceptions to the hearsay rule. However, no application was made at trial to admit the evidence on this basis. Such a determination could only be made following a voir dire at which the circumstances surrounding the making of all of the statements could be investigated. I will return to this issue when I consider the admissibility of the fresh evidence. To conclude, I have not been persuaded that there were any reversible errors at the trial. The fresh evidence [30] The Supreme Court of Canada recently considered the test for fresh evidence in R. v. Warsing, released December 17, 1998. In that case, Major J., speaking for the court on this issue, affirmed that the test for admission of fresh evidence is as set down in Palmer and Palmer v. The Queen, [1980] 1 S.C.R. 759 at 775: (1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases; [citations omitted] (2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; (3) The evidence must be credible in the sense that it is reasonably capable of belief; and (4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. [31] Major J. also confirmed, at para. 51, that due diligence is a factor to be considered, but not a prerequisite to admissibility: “It is desirable that due diligence remain only one factor and its absence, particularly in criminal cases, should be assessed in light of other circumstances. If the evidence is compelling and the interests of justice require that it be admitted then the failure to meet the test should yield to permit its admission.” He also adopted the view expressed by Carthy J.A. in R. v. C. (R.) (1989), 47 C.C.C. (3d) 84 (Ont. C.A.) at p. 87 that a failure to meet the due diligence requirement should not “override accomplishing a just result”. [32] The Crown submits that none of the proposed evidence meets the test for fresh evidence. Mr. Ashford agrees that the DNA evidence is credible but argues that the evidence otherwise fails to meet the Palmer and Palmer requirements. He placed particular emphasis on the fourth requirement — that the evidence could be expected to have affected the result. As I would admit the fresh evidence concerning the results of the DNA testing and allow the appeal on that basis, I will only briefly consider the admissibility of Mr. S.H.’s testimony and the evidence of his statements to the police and others. The DNA evidence i. Due diligence [33] In my view, this is manifestly not a case where lack of due diligence should operate to exclude the DNA evidence. Leading up to the trial, defence counsel and the appellant reasonably believed that S.H. would admit to having had intercourse with the complainant on the night of the assault. He had said as much to the police, to his friends and to the appellant’s relatives. The failure to take extraordinary measures to try to obtain bodily samples from S.H. was not unreasonable. Moreover, defence counsel repeatedly pressed Crown counsel, in writing, to have the police conduct a fuller investigation of S.H.’s role in the affair and suggested to Crown counsel that he should call S.H. as a witness at the trial so that the full story would be before the jury. [34] Crown counsel at trial (not Mr. Ashford) rebuffed these attempts and also stated that he would not call Mr. S.H. as a witness. His response was unhelpful and insulting: As you are well aware, one of the responsibilities and duties of the Crown Attorney in this wonderful nation of ours is that we can only call those witnesses we consider credible. As a result of that I, unfortunately, am not in a position to call Mr. S.H. at the trial of this matter. You, on the other hand, are not bound by the same moral constraints that we are and you may feel free to deal with Mr. S.H. as you choose. [35] In the result, the police made no attempts to further investigate Mr. S.H. or attempt to obtain bodily substances from him. Thus, the Centre of Forensic Sciences had no samples from S.H. to compare with the test results. Strictly speaking, Crown counsel may have been correct in stating that he was not required to call Mr. S.H.: R. v. Cook, [1997] 1 S.C.R. 1113. In hindsight, however, the failure on the part of both the Crown and defence to pursue further DNA testing before trial was unfortunate. On the other hand, if prior to trial the Crown was not prepared to further investigate S.H.’s culpability, I do not think it can fairly be said that the defence failed to exercise due diligence in the same respect, or that this alleged lack of due diligence should weigh against admission of the fresh evidence. ii. Relevancy [36] The forensic evidence at trial established that the semen stain on the pair of men’s (K. Beeching) underwear was not from the appellant. The fresh evidence establishes that this stain came from S.H. and thus tends to establish that S.H. had worn that underwear. The complainant testified that the underwear was not in her bed prior to the assault. In my view, it would be open to the trier of fact to conclude that the person who sexually assaulted the complainant had been wearing that underwear just prior to the assault and had left it in the bed. The fresh evidence tends to show that S.H. had been wearing the underwear. The evidence is therefore relevant in that it bears upon a decisive or potentially decisive issue in the trial, namely, the identity of the perpetrator. [37] The other DNA evidence relates to the complainant’s underwear. The analysts were able to obtain sufficient material to detect sperm and a mixture of DNA on the white underwear that the complainant put on before going to the hospital. This was a clean pair of underwear. The DNA came from the complainant and from S.H.. It could not have come from the appellant. This evidence is of lesser significance. The examinations performed at the hospital, together with the complainant’s own evidence, suggest that the perpetrator did not ejaculate during the assault. Nevertheless, since the DNA mixture could have been deposited on the underwear after the attack, in my view, it relates to a potentially decisive issue in the case and therefore meets the relevancy test. However, as I will explain below, I am not persuaded that this evidence can meet the fourth Palmer and Palmer requirement. iii. Credibility [38] The respondent concedes that the results of the DNA testing are credible. iv. Effect on the verdict [39] In considering whether the evidence could reasonably be expected to have affected the result, the court of appeal is required to place the proposed fresh evidence into the context of the other evidence adduced at trial. Identity was the only real issue at trial. The appellant was identified by the complainant and he made an inculpatory statement, in the presence of the complainant’s mother, to the investigating officer. In contrast, the appellant testified and denied committing the offence. Leaving aside S.H.’s utterances, there was some circumstantial evidence implicating him in the offence. He had assaulted the complainant earlier in the day by pulling down her pants. He threatened the complainant after the assault. He had the same or better opportunity as the appellant to commit the offence. [40] As indicated above, if the complainant is correct, the “K. Beeching” underwear was not in the bed prior to the attack. It would be open to the trier of fact to find that the perpetrator had been wearing the underwear prior to the attack on the complainant. At trial, the forensic evidence showed that the stain on the underwear did not come from the appellant. It did not establish who owned that underwear. The DNA evidence regarding the underwear is significant independent evidence implicating S.H. in the attack on the complainant. [41] At trial, the ownership of the underwear was a mystery. Crown counsel, however, argued before the jury that the underwear probably did not belong to S.H. and, in my view, suggested that the underwear belonged to the appellant. Crown counsel opened his closing address to the jury with the K. Beeching underwear issue: Ladies and gentlemen, let’s look at the troubling aspects of the evidence. K. Beeching, a name on a pair of male underwear found in the bed. Whose underwear is that? Ladies and gentlemen, you aren’t detectives. If there was an answer for you hopefully that answer would have come out in the evidence, it didn’t come out. You are going to have to work with that as best you can. Recall that the underwear with K. Beeching on it is found in the bedding. The photographs depict where it is found. It is found nearby an Owl’s Roost T-shirt that [the complainant] says is hers that she had last worn some three days before this incident and, again, that’s also in the bedding. The semen stains on the K. Beeching underwear analyzed for DNA. The semen stains on the underwear is not Mr. Folland’s, have no doubt about that, as the evidence unfolded. The semen stains in the underwear do not come from Mr. Folland. Common sense would tell you, and again that’s one of the benefits of the jury system, if you have 12 people using common sense, common sense tells you that you don’t normally wear someone else’s underwear. Mr. Folland, on this particular day, was wearing some clothing of Mr. S.H.’. The sweat shirt you will recall, both testified to by Mr. Folland and [the complainant], had been given to him by Mr. S.H.. Why Mr. Folland doesn’t have his own clothing, that matter wasn’t addressed. The underwear doesn’t say S.H. or S.H. What would S.H. be doing with male underwear that said K. Beeching on it in any event? Ladies and gentlemen, a mystery. What male adult underwear – and again you’ll see the photograph that shows the sort of name tag that’s in it – has the name in it in any event? Ladies and gentlemen, I can’t help you with that little bit of the puzzle. It doesn’t make sense or it makes little sense. I can only place before you the evidence as found at the scene. [Emphasis added.] [42] The fresh evidence answers the question posed by Crown counsel to the jury and in a way that tends to undermine the Crown’s case. Having regard to the importance that Crown counsel placed upon the underwear problem at trial and the central role of identity in the case, in my view the appellant has shown that this evidence, when taken with the other evidence adduced at trial, could reasonably be expected to have affected the verdict. The evidence therefore meets the criteria for admission of fresh evidence. [43] It may be, as submitted by the Crown, that the underwear has nothing to do with the assault and that the complainant is mistaken in her evidence that the underwear was not in her bed prior to the assault. For that reason, the evidence is not clearly decisive and I would order a new trial, not an acquittal: R. v. Stolar (1988), 40 C.C.C. (3d) 1 (S.C.C.) at 11. [44] I take a different view of the DNA evidence concerning the white underwear. As indicated, the trial evidence suggests that the perpetrator did not ejaculate during the assault. The presence of the stain in the complainant’s underpants may show nothing more than that the complainant and S.H. had intercourse on some prior occasion. That issue was not in dispute as the complainant testified that she and S.H. had been “intimate”. The expert evidence at trial indicated that DNA can be detected even after clothing has been washed. No attempt was made at trial to lead evidence of the complainant’s prior sexual relationship with S.H. The evidence tendered before this court consists of S.H.’s testimony that he had intercourse with the complainant the day before the assault and the hospital record indicating that the complainant said she had not had intercourse for at least a week prior to the assault. On either version, I fail to see how other evidence, such as the DNA analysis of the white underwear showing a relationship between S.H. and the complainant, could have affected the verdict. The jury was aware that S.H. and the complainant had been intimate. They knew that she and S.H. shared the same house. In the absence of a greater nexus between the stain and the attack, it is my view that admission of this evidence could not reasonably be expected to have affected the result. S.H.’s testimony and utterances [45] An important aspect of the admission of the other category of proposed fresh evidence is the credibility of S.H. and the friends and relatives to whom he allegedly confessed. If S.H. were to tell the same story to the jury as he did under cross- examination prior to the appeal, and if he were believed, it would be open to the jury to find that he did not attack the complainant and that he was asleep before the complainant made her complaint about the appellant. His testimony as to having consensual relations with the complainant the day before the attack would explain the presence of his semen on the white underwear. On the whole, S.H.’s evidence, if believed, would assist the Crown rather than the defence. [46] It seems to me that the appellant is really hoping that a trier of fact would disbelieve substantial portions of S.H.’s sworn testimony in favour of his unsworn utterances to the police officers and others. This raises the difficult question of the place of the credibility factor in the fresh evidence analysis, a matter squarely raised in several other appeals pending in this court. Moreover, we did not have the advantage of seeing either S.H. or the other witnesses. Further, it is unnecessary to deal with this second category of proposed fresh evidence to resolve this appeal. For those reasons, I would prefer not to express an opinion on the admissibility of this evidence as fresh evidence. [47] However, since the use of S.H.’s out-of-court utterances may be an issue at the new trial, I would make these comments for the assistance of the trial judge. The most likely route by which those statements would be put before the jury is if either Crown or defence call S.H. as a witness. At that point, S.H. might either admit the statements or the party, presumably the defence, would attempt to prove the statements in accordance with either s. 9 (if the defence called S.H.) or s. 11 (if the Crown called S.H.) of the Canada Evidence Act, R.S.C. 1985, chap. C-5. If the defence wishes to make substantive use of the statements, it should proceed in accordance with the procedure set out in R. v. B. (K.G.), [1993] 1 S.C.R. 740, R. v. Conway (1997), 121 C.C.C. (3d) 397 (Ont. C.A.) and R. v. Szpala (1998), 124 C.C.C. (3d) 430 (Ont. C.A.). [48] In determining whether the defence should be permitted to make substantive use of this evidence, the trial judge will wish to bear in mind the comments of Martin J.A. in R. v. Williams (1985), 18 C.C.C. (3d) 356 (Ont. C.A.) at 378: It seems to me that a court has a residual discretion to relax in favour of the accused a strict rule of evidence where it is necessary to prevent a miscarriage of justice and where the danger against which an exclusionary rule aims to safeguard does not exist. [49] This passage was approved by Cory J. in R. v. Finta (1994), 88 C.C.C. (3d) 417 (S.C.C.) at 527. In my view, while the trial judge must be satisfied that the prior out-of-court utterances have some reliability, the strict standards set, in the context of an application by the Crown to make substantive use of prior inconsistent statements incriminating the accused, in R. v. B. (K.G.) do not apply: c.f. R. v. Eisenhauer (1998), 123 C.C.C. (3d) 37 (N.S.C.A.) at 64, application for leave to appeal to the Supreme Court of Canada dismissed, August 20, 1998. [50] The comments by Martin J.A. have particular application to the statements made by S.H. at the scene. The Crown relied on the appellant’s inculpatory statements at the scene for their truth. If S.H. testifies and denies having assaulted the complainant, it seems only right that his contrary statements also made at the scene ought to be available for substantive use by the defence. However, that will be a matter for the trial judge who will have the advantage of observing S.H. and the other witnesses and will be in a much better position to make the reliability determination. DISPOSITION [51] Accordingly, I would admit the fresh evidence concerning the DNA analysis of the men’s underwear, allow the appeal, quash the conviction and order a new trial. I should point out that Mr. Ashford conceded before this court that even if the conviction appeal were dismissed, he would agree that the appeal from sentence be allowed and the sentence reduced to time served. In all the circumstances, the Crown may wish to consider whether it is in the public interest to proceed with the new trial. RELEASED: January 20, 1999