R. v. Russ

R. v. Russ

The trial judge found defence cross-examination contained an allegation that the complainant embellished her account after the event to gain sympathy, which amounted to an allegation of recent fabrication; because the Jan 3, 2012 text was made within one day of the events and pre-dated the alleged motive to embellish, it was admissible in re-examination to rebut that allegation, and the Crown may therefore re-examine to establish the text was sent.

Citation
2018 BCSC 2462
Parties
Crown: Regina; Accused: Richard Andrew Russ
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
15 October 2018
Procedural Posture
Criminal / Trial Application to Lead Evidence in Re Examination (after Cross Examination)
Outcome
Crown's application granted in part: re-examination permitted to elicit the Jan 3, 2012 text message as a prior consistent statement to rebut recent fabrication allegation.
Legal Topics
Prior Consistent Statement, Recent Fabrication, Re Examination, Admissibility, Publication Ban
Source Language
English
Criminal Law Evidence Prior Consistent Statement Recent Fabrication Re Examination Admissibility Publication Ban

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Parties

Regina

Crown

Richard Andrew Russ

Accused

Procedural Posture

Criminal / Trial Application to Lead Evidence in Re Examination (after Cross Examination)

Legal Issues

  1. 1 Whether a prior consistent statement (text message of Jan 3, 2012) may be admitted in re-examination
  2. 2 Whether defence cross-examination constituted an allegation of recent fabrication
  3. 3 Whether the Crown may introduce evidence in re-examination that was not tendered in examination-in-chief

Ratio Decidendi

The trial judge found defence cross-examination contained an allegation that the complainant embellished her account after the event to gain sympathy, which amounted to an allegation of recent fabrication; because the Jan 3, 2012 text was made within one day of the events and pre-dated the alleged motive to embellish, it was admissible in re-examination to rebut that allegation, and the Crown may therefore re-examine to establish the text was sent.

Court Disposition

Crown's application granted in part: re-examination permitted to elicit the Jan 3, 2012 text message as a prior consistent statement to rebut recent fabrication allegation.

Orders

  • Crown permitted to re-examine the complainant to establish she sent the January 3, 2012 text message at 6:22 p.m.
  • Publication ban imposed under s.486.4 of the Criminal Code restricting publication of evidence identifying the complainant or witnesses; ban applies indefinitely unless otherwise ordered.