R. v. Abazi (Z.), (2006) 205 Man.R.(2d) 257 (CA)

• Judge: Monnin, Steel and Freedman, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: July 13, 2006
• Jurisdiction: Manitoba
• Citations: (2006), 205 Man.R.(2d) 257 (CA);2006 MBCA 81

R. v. Abazi (Z.) (2006), 205 Man.R.(2d) 257 (CA);

    375 W.A.C. 257

MLB headnote and full text

Temp. Cite: [2006] Man.R.(2d) TBEd. JL.034

Her Majesty The Queen (respondent) v. Zylfo Abazi (accused/appellant)

(AR 05-30-06235; 2006 MBCA 81)

Indexed As: R. v. Abazi (Z.)

Manitoba Court of Appeal

Monnin, Steel and Freedman, JJ.A.

July 13, 2006.

Summary:

The accused appealed against a number of convictions dealing with the possession of prohibited or restricted firearms on the grounds that the trial judge erred by admitting into evidence a prior inconsistent statement of a witness for its truth, and further, that the trial judge erred in relying on the unsupported evidence of a witness to base a conviction.

The Manitoba Court of Appeal dismissed the appeal.

Criminal Law - Topic 5321

Evidence and witnesses - Corroboration - General - On appeal against conviction, the accused argued that the trial judge erred in relying on the unsupported evidence of a witness to base a conviction - The Manitoba Court of Appeal dismissed the appeal - The trial judge was acutely aware of the dangers of relying on the evidence of the witness, whom he described as "not leadership material in any culture" - However, the trial judge was allowed by law to rely on such evidence if, notwithstanding the frailties of it, he was still satisfied of its truthfulness - See paragraphs 21 to 23.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - [See Evidence - Topic 4752 ].

Evidence - Topic 4752

Witnesses - Examination - Prior inconsistent statements - Admissibility - Foundation required - At the accused's trial, a witness recanted what he said in an earlier videotaped statement, made when the witness was under charge and caution - Upon the Crown's application, the trial judge admitted the earlier statement for its truth - The accused was convicted - On appeal, the accused argued that the trial judge, when he assessed the threshold reliability of the witness' statement, erred when he considered the witness' possible motivation and relied on similarities between the witness' statement and evidence from other Crown witnesses - The Manitoba Court of Appeal dismissed the appeal where the statement had been entirely videotaped, the witness was available for full cross-examination, the statement was made under charge and caution and, absent the statement being made under oath, the trial judge was entitled to rely on the similarity factor - See paragraphs 13 to 20.

Cases Noticed:

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161 2000 SCC 40, refd to. [para. 10].

R. v. Khan (A.), [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353, refd to. [para. 12].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, consd. [para. 13].

R. v. Trieu (T.) (2005), 195 O.A.C. 263; 195 C.C.C.(3d) 373 (C.A.), consd. [para. 14].

R. v. Sanderson (R.K.) (2003), 177 Man.R.(2d) 260; 304 W.A.C. 260; 2003 MBCA 109, consd. [para. 22].

Counsel:

R.P. Rolston, for the appellant;

A.G. Bowering, for the respondent.

This appeal was heard on May 16, 2006, by Monnin, Steel and Freedman, JJ.A., of the Manitoba Court of Appeal.

The judgment of the Court of Appeal was delivered on July 13, 2006, by Monnin, J.A.