R. v. Benji (R.K.), (2012) 316 B.C.A.C. 132 (CA)

• Judge: Rowles, Lowry and Hinkson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: February 06, 2012
• Jurisdiction: British Columbia
• Citations: (2012), 316 B.C.A.C. 132 (CA);2012 BCCA 55

R. v. Benji (R.K.) (2012), 316 B.C.A.C. 132 (CA);

    537 W.A.C. 132

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. FE.026

Regina (respondent) v. Rajinder Kumar Benji (appellant)

(CA036550; 2012 BCCA 55)

Indexed As: R. v. Benji (R.K.)

British Columbia Court of Appeal

Rowles, Lowry and Hinkson, JJ.A.

February 6, 2012.

Summary:

A jury convicted the accused of the first degree murder of the victim, who owed Bhatti money. The Crown's theory was that the accused and Bhatti kidnapped the victim to obtain the monies owed (which would be shared with the accused, who was broke), and that when no money was forthcoming, they killed him. Bhatti's separate trial ended in a mistrial and the Crown stayed proceedings against him. Bhatti was called as a Crown witness to connect the accused and the victim and provide motive. Although Bhatti's testimony established that connection, Bhatti also offered an "alibi" to disclaim his involvement in the killing. The case against the accused was largely circumstantial. The woman who began a relationship with the accused after the killing testified that he admitted that he was involved with the victim being strangled with his own tie. This information had been held back by the R.C.M.P. (i.e., only persons involved in the killing were privy to this information). A lawyer also testified that the accused was concerned that the woman would tell police what he admitted and that he may have to kill her to avoid her implicating him. The Crown's closing address to the jury asked them to disbelieve Bhatti's alibi as contrary to the other evidence. The accused appealed his conviction, arguing that (1) the trial judge erred by allowing the Crown to impeach the credibility of its own witness (Bhatti); (2) the Crown's jury address respecting Bhatti's credibility was impermissible and inflammatory, resulting in a miscarriage of justice; and (3) the trial judge failed to direct the jury on the significance of Bhatti's testimony (i.e., if Bhatti's testimony was accepted, it disproved the Crown's theory that the accused and Bhatti kidnapped and killed the victim, and cast doubt on the accuracy of the accused's alleged admission to the woman).

The British Columbia Court of Appeal dismissed the appeal. The Crown's calling of Bhatti as its own witness did not mean that it warranted that everything Bhatti said was truthful or preclude it from challenging portions of that testimony. The Crown was not required to ask the jury to accept everything Bhatti said, without regard to other cogent evidence to the contrary. There was no unfairness in the Crown urging the jury to disbelieve Bhatti's alibi without giving Bhatti the opportunity to respond to direct allegations of untruthfulness in examination. The allegedly inflammatory portions of the Crown's address did not exceed permissible bounds. Finally, the objection to the adequacy of the jury charge respecting the significance of Bhatti's evidence was unwarranted. The court noted that although counsel's failure to object to the contents of the jury charge was not determinative, it was relevant that counsel had two opportunities to vet the jury charge and had no concerns that it would lead to a miscarriage of justice or unfair trial.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 4357.1

Procedure - Charge or directions - Jury or judge alone - Directions re Crown theory - A jury convicted the accused of the first degree murder of the victim, who owed Bhatti money - The Crown's theory was that the accused and Bhatti kidnapped the victim to obtain the monies owed (which would be shared with the accused, who was broke), and that when no money was forthcoming, they killed him - Bhatti's separate trial ended in a mistrial and the Crown stayed proceedings against him - Bhatti was called as a Crown witness to connect the accused and the victim and provide motive - Although Bhatti's testimony established that connection, Bhatti also offered an "alibi" to disclaim his involvement in the killing - The case against the accused was largely circumstantial - The woman who began a relationship with the accused after the killing testified that he admitted that he was involved with the victim being strangled with his own tie - This information had been held back by the R.C.M.P. (i.e., only persons involved in the killing were privy to this information) - A lawyer also testified that the accused was concerned that the woman would tell police what he admitted and that he may have to kill her to avoid her implicating him - The Crown's closing address to the jury asked them to disbelieve Bhatti's alibi as contrary to the other evidence - The accused appealed his conviction, arguing that the trial judge failed to direct the jury on the significance of Bhatti's testimony (i.e., if Bhatti's testimony was accepted, it disproved the Crown's theory and the accuracy of the accused's alleged admission to the woman) - The British Columbia Court of Appeal dismissed the appeal - The accused did not ask the jury to disbelieve the woman's testimony based on Bhatti's "alibi", nor did he request a jury instruction on the issue - The accused had no comment or objection on the trial judge's review of Bhatti's testimony - The accused had a draft of the intended jury charge and two opportunities to vet it - The objections to the jury charge "cannot be supported" - The court noted that the Crown did not rely on Bhatti's testimony to support the woman's testimony respecting the accused's admission - See paragraphs 100 to 126.

Criminal Law - Topic 4393

Procedure - Charge or directions - Jury or judge alone - Failure by counsel to object - Effect of - The British Columbia Court of Appeal stated that "while a failure to object at trial is not fatal to a point being advanced as an issue on appeal, it is a matter that may be considered in relation to an alleged error or misdirection." - On appeal from a murder conviction, the accused argued that the Crown's closing address to the jury was inflammatory - The court, in addition to finding that the statements did not exceed acceptable bounds, held that "I agree with the [Crown's] submission that defence counsel's lack of objection or request for an instruction on the impugned comments is an indication that Crown counsel's remarks, in the context of this case, did not cause any improper or undue impact to diminish trial fairness" - See paragraphs 119, 188.

Criminal Law - Topic 4419

Procedure - Charge or directions - Jury or judge alone - Counsel - Closing address - Intemperate or improper statements - A jury convicted the accused of the first degree murder of the victim, who owed Bhatti money - The Crown's theory was that the accused and Bhatti kidnapped the victim to obtain the monies owed (which would be shared with the accused, who was broke), and that when no money was forthcoming, they killed him - Bhatti's separate trial ended in a mistrial and the Crown stayed proceedings against him - Bhatti was called as a Crown witness to connect the accused and the victim and provide motive - Although Bhatti's testimony established that connection, Bhatti also offered an "alibi" to disclaim his involvement in the killing - The accused argued that a miscarriage of justice occurred due to the Crown's inflammatory statements in its closing address to the jury, which urged the jury to disbelieve Bhatti's alibi evidence: "Crown counsel referred to Bhatti's alibi as 'false', 'lame', 'a lie' and 'not credible or believable' and to his evidence as 'just unbelievable' and 'beyond belief'" - The British Columbia Court of Appeal held that "the language used by Crown counsel was not burdened with hyperbole or inflammatory invective likely to interfere with the jury's rational process of determining what parts, if any, of Bhatti's testimony it was going to accept. It is true that Crown counsel emphatically urged the jury to reject Bhatti's alibi testimony but there was evidence to support this submission. ... Contrary to the [accused's] argument, it could not be inflammatory to submit that Bhatti was a participant or perpetrator in Singh's killing for that is a conclusion to which the evidence could logically lead. That Bhatti was an instigator, participant or perpetrator was part of the Crown's case." - See paragraphs 176 to 189.

Evidence - Topic 4611

Witnesses - Examination - General principles - Leading questions - An accused appealed his conviction on the ground that the Crown asked leading questions of its witness - The British Columbia Court of Appeal, in rejecting the argument as not supported by the transcript, referenced the following observations on leading questions: "A leading question is one that suggests the answer. It is trite law that the party who calls a witness is generally not permitted to ask the witness leading questions. The reason for the rule arises from a concern that the witness, who in many instances favours the party who calls him or her, will readily agree to the suggestions put in the form of a question rather than give his or her own answers to the questions. Of course, the degree of concern that may arise from the use of leading questions will depend on the particular circumstances, and the rule is applied with some flexibility. For example, leading question are routinely asked to elicit a witness's evidence on preliminary and noncontentious matters. This practice is adopted for the sake of expediency and generally gives rise to no concern. Leading questions are also permitted to the extent that they are necessary to direct a witness to a particular matter or field of inquiry. Apart from these specific examples, the trial judge has a general discretion to allow leading questions whenever it is considered necessary in the interests of justice." - See paragraphs 133 to 140.

Evidence - Topic 4783

Witnesses - Examination - Impeaching own witness - Crown witnesses - A jury convicted the accused of the first degree murder of the victim, who owed Bhatti money - The Crown's theory was that the accused and Bhatti kidnapped the victim to obtain the monies owed (which would be shared with the accused, who was broke), and that when no money was forthcoming, they killed him - Bhatti's separate trial ended in a mistrial and the Crown stayed proceedings against him - Bhatti was called as a Crown witness to connect the accused and the victim and provide motive - Although Bhatti's testimony established that connection, Bhatti also offered an "alibi" to disclaim his involvement in the killing - The case against the accused was largely circumstantial - The woman who began a relationship with the accused after the killing testified that he admitted that he was involved with the victim being strangled with his own tie - This information had been held back by the R.C.M.P. (i.e., only persons involved in the killing were privy to this information) - A lawyer also testified that the accused was concerned that the woman tell police what he admitted and that he may have to kill her to avoid her implicating him - The Crown's closing address to the jury asked them to disbelieve Bhatti's alibi as contrary to the other evidence - The accused appealed his conviction, arguing that the trial judge erred by allowing the Crown to impeach the credibility of its own witness (Bhatti), where the Crown did not seek leave to cross-examine Bhatti nor apply to have him declared an adverse or hostile witness - The British Columbia Court of Appeal dismissed the appeal - There was no impropriety in the Crown urging the jury to disbelieve the alibi portion of the testimony of its own witness where there was a considerable body of affirmative evidence to contradict the alibi - The Crown's calling of Bhatti as its own witness did not mean that it warranted that everything Bhatti said was truthful or preclude it from challenging portions of that testimony - The accused's reliance on the rule in Browne v. Dunn, respecting impeaching a witness's credibility without giving him an opportunity on examination to respond to the allegations of untruthfulness, was misplaced - There was nothing improper in the Crown inviting the jury to disbelieve the alibi - See paragraphs 127 to 169.

Cases Noticed:

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606; 136 D.L.R.(3d) 89, refd to. [para. 8].

R. v. Khela (G.S.), [2009] 1 S.C.R. 104; 383 N.R. 279; 265 B.C.A.C. 31; 446 W.A.C. 31; 2009 SCC 4, refd to. [para. 8].

Browne v. Dunn (1893), 6 R. 67 (H.L.), refd to. [para. 29].

R. v. Biniaris (J.) (1998), 104 B.C.A.C. 203; 170 W.A.C. 203; 124 C.C.C.(3d) 58 (C.A.), revd. [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161, refd to. [para. 29].

R. v. Walker (J.P.) (1994), 70 O.A.C. 148; 90 C.C.C.(3d) 144; 18 O.R.(3d) 184 (C.A.), refd to. [para. 29].

R. v. Chapman, [1973] 2 All E.R. 624; 57 Cr. App. R. 511, refd to. [para. 106].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81; 44 C.C.C.(3d) 193, refd to. [para. 110].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161; 113 C.C.C.(3d) 1, refd to. [para. 119].

R. v. Royz (E.), [2009] 1 S.C.R. 423; 388 N.R. 1; 251 O.A.C. 397; 2009 SCC 13, refd to. [para. 121].

R. v. C.E.N. (1998), 232 A.R. 277; 195 W.A.C. 277; 129 C.C.C.(3d) 198; 1998 ABCA 290, refd to. [para. 128].

R. v. Situ (X.Y.) (2005), 371 A.R. 170; 354 W.A.C. 170; 200 C.C.C.(3d) 9; 2005 ABCA 275, refd to. [para. 128].

R. v. Paquette (L.L.) (2008), 425 A.R. 4; 418 W.A.C. 4; 2008 ABCA 49, refd to. [para. 128].

R. v. Rose (E.) (2001), 143 O.A.C. 163; 153 C.C.C.(3d) 225; 53 O.R.(3d) 417 (C.A.), refd to. [para. 133].

Cariboo Observer Ltd. v. Carson Truck Lines Ltd. (1961), 32 D.L.R.(2d) 36; 37 W.W.R.(N.S.) 209 (B.C.C.A.), refd to. [para. 159].

R. v. Hutchinson (1904), 11 B.C.R. 24; 8 C.C.C. 486 (C.A.), refd to. [para. 160].

R. v. Boucher, [1955] S.C.R. 16; 110 C.C.C. 263, refd to. [para. 172].

R. v. Grover (1990), 38 O.A.C. 219; 56 C.C.C.(3d) 532 (C.A.), refd to. [para. 172].

R. v. Grover, [1991] 3 S.C.R. 387; 131 N.R. 80; 50 O.A.C. 185; 67 C.C.C.(3d) 576, refd to. [para. 172].

R. v. Kokotailo (J.R.) (2008), 254 B.C.A.C. 262; 426 W.A.C. 262; 232 C.C.C.(3d) 279; 2008 BCCA 168, refd to. [para. 185].

R. v. K.M.E., [2009] 2 S.C.R. 19; 389 N.R. 20; 272 B.C.A.C. 1; 459 W.A.C. 1; 2009 SCC 27, refd to. [para. 188].

R. v. Ellard (K.M.) - see R. v. K.M.E.

R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4; 2007 SCC 53, refd to. [para. 188].

R. v. Daley (W.J.) - see R. v. W.J.D.

Authors and Works Noticed:

Bryant, Alan W., The Common Law Rule Against Impeaching One's Own Witness (1982), 32 U.T.L.J. 412, generally [para. 156].

Bryant, Alan W., The Statutory Rules Against Impeaching One's Own Witness (1983), 33 U.T.L.J. 108, generally [para. 156].

Paciocco, David M., and Stuesser, Lee, The Law of Evidence (5th Ed. 2008), pp. 503 to 509 [para. 128].

Counsel:

J.W. Green, for the appellant;

C.M. Sweeney, Q.C., for the respondent.

This appeal was heard on September 27, 2010, at Vancouver, B.C., before Rowles, Lowry and Hinkson, JJ.A., of the British Columbia Court of Appeal.

On February 6, 2012, Rowles, J.A., delivered the following judgment for the Court of Appeal.