R. v. Abdulle (I.A.), 2016 ABCA 5
| Judge | Costigan, Martin and Wakeling, JJ.A. |
| Court | Court of Appeal (Alberta) |
| Case Date | January 05, 2015 |
| Citations | 2016 ABCA 5;(2016), 609 A.R. 396 |
R. v. Abdulle (I.A.) (2016), 609 A.R. 396; 656 W.A.C. 396 (CA)
MLB headnote and full text
Temp. Cite: [2016] A.R. TBEd. JA.054
Her Majesty the Queen (respondent) v. Ismail Ali Abdulle (appellant)
(1503-0057-A; 2016 ABCA 5)
Indexed As: R. v. Abdulle (I.A.)
Alberta Court of Appeal
Costigan, Martin and Wakeling, JJ.A.
January 8, 2016.
Summary:
The appellant appealed his convictions on two counts of armed robbery.
The Alberta Court of Appeal allowed the appeal and ordered a new trial. The trial judge erred in applying a Browne v. Dunn remedy to minor details and in not affording defence counsel an opportunity to respond to an issue of significance to the trial judge's findings on credibility.
Criminal Law - Topic 131
General principles - Rights of accused - Right to just conduct of trial - [See Criminal Law - Topic 5416 ].
Criminal Law - Topic 4944
Appeals - Indictable offences - New trials - When available - General - [See Criminal Law - Topic 5416 ].
Criminal Law - Topic 5415
Evidence and witnesses - Witnesses - Cross-examination of - [See Criminal Law - Topic 5416 ].
Criminal Law - Topic 5416
Evidence and witnesses - Witnesses - Cross-examination of Crown witnesses - The appellant appealed his convictions on two counts of armed robbery - The Alberta Court of Appeal allowed the appeal and ordered a new trial - The trial judge erred in applying a Browne v. Dunn remedy to minor details and in not affording defence counsel an opportunity to respond to an issue of significance to the trial judge's findings on credibility.
Criminal Law - Topic 4806
Appeals - Indictable offences - General principles - Duty of appellate court - The appellant appealed his convictions on two counts of armed robbery - The Alberta Court of Appeal stated that "Both the issue of trial fairness and the application of the principle in Browne v Dunn are questions of law reviewable on the correctness standard ..." - See paragraph 10.
Criminal Law - Topic 4806
Appeals - Indictable offences - General principles - Duty of appellate court - [See second Evidence - Topic 4726 ].
Evidence - Topic 4726
Witnesses - Examination - Impeaching credibility - Duty to give witness opportunity to explain - [See Criminal Law - Topic 5416 ].
Evidence - Topic 4726
Witnesses - Examination - Impeaching credibility - Duty to give witness opportunity to explain - The Alberta Court of Appeal stated that "The rule in Browne v Dunn requires counsel to put a matter to a witness if counsel intends to present contradictory evidence on that matter through a later witness: Werkman at para 7 [2007 Alta. C.A.]. Where the rule is breached, the trial judge may take the failure into account in assessing credibility: Werkman at para 9. The failure to cross-examine must relate to matters of substance. Where the evidence is of little significance in the overall context of the case, the failure to cross-examine should have no effect on the assessment of credibility: R v Paris (2000), 138 OAC 287 at para 23. Absent an error of law or a misapprehension of the evidence, a trial judge's assessment of credibility is, however, entitled to deference." - See paragraph 11.
Cases Noticed:
Browne v. Dunn (1893), 6 R. 67 (H.L.), refd to. [para. 1].
R. v. Schmaltz (J.M.), [2015] A.W.L.D. 573; 599 A.R. 76; 643 W.A.C. 76; 2015 ABCA 4, refd to. [para. 10].
R. v. Werkman (B.L.) (2007), 404 A.R. 378; 394 W.A.C. 378; 2007 ABCA 130, refd to. [para. 10].
R. v. Paris (G.W.) et al. (2000), 138 O.A.C. 287 (C.A.), refd to. [para. 11].
Counsel:
K.A. Joyce, for the respondent;
E.V. McIntyre, for the appellant.
This appeal was heard on January 5, 2015, by Costigan, Martin and Wakeling, JJ.A., of the Alberta Court of Appeal, who delivered the following memorandum of judgment on January 8, 2016.
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...into account in assessing credibility. The failure to cross examine must relate to matters of substance. See R. v. Abdulle, 2016 ABCA 5, at para. 11, and R. v. Werkman, 2007 ABCA 130, at paras. 7 to [12] See Oakwood Towers’ letter to the Bucks of November 15, 2017. [13] F......
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