R. v. Keeler, (1977) 4 A.R. 449 (CA)

Case Date:June 23, 1977
Jurisdiction:Alberta
Citations:(1977), 4 A.R. 449 (CA)
 
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R. v. Keeler (1977), 4 A.R. 449 (CA)

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R. v. Keeler

Indexed As: R. v. Keeler

Alberta Supreme Court

Appellate Division

McGillivray, C.J.A., McDermid, J.A. and Moshansky, J. (ad hoc)

June 23, 1977.

Summary:

This case arose out of a charge of rape against the accused. At the time of his arrest the accused told a policeman that the woman had consented to intercourse. At the accused's trial by jury the accused called the policeman to testify about his statement at the time of his arrest. The trial judge held that the statement was admissible to show the consistency of the accused's defence of consent. In his instructions to the jury the trial judge stated that the accused would be protected by higher courts' powers of review of the verdict of the jury. The accused was acquitted. The Crown appealed.

The Alberta Court of Appeal dismissed the appeal. The Court of Appeal held that, although the exculpatory statement made by the accused on his arrest was inadmissible and the instruction to the jury by the trial judge on the reviewability of the jury's verdict was wrong, the errors of the trial judge had resulted in no miscarriage of justice.

Criminal Law - Topic 4371

Procedure - Charge or directions to jury - Direction regarding review ability of jury verdict - In a jury trial on a charge of rape the trial judge instructed the jury that the accused would be protected by higher courts' power of review of the verdict of the jury - The Alberta Court of Appeal held that, since the jury verdict was not reviewable, the instruction was in error - See paragraphs 19 to 21.

Criminal Law - Topic 4951

Appeals - Indictable offences - New trials - Grounds - Misdirection by trial judge - Appeal by Crown from acquittal - Duty of the Crown on appeal from an acquittal - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 613(4) - The Alberta Court of Appeal stated that it was the duty of the Crown in order to obtain a new trial to satisfy the court that the verdict would not necessarily have been the same if the trial judge had properly directed the jury - See paragraph 25.

Criminal Law - Topic 5039

Appeals - Indictable offences - Dismissal of an appeal if an error resulted in no miscarriage of justice - Effect of error of the trial judge - Criminal Code of Canada, R.S.A. 1970, c. C-34, s. 613(1)(b)(iii) - In a jury trial on a charge of rape the trial judge improperly admitted an exculpatory statement made by the accused on his arrest to show consistency with the accused's testimony in his defence - The trial judge also erroneously instructed the jury that an appeal lay from its decision - The accused was acquitted - The Alberta Court of Appeal dismissed the Crown's appeal and found that the errors of the trial judge had resulted in no miscarriage of justice - See paragraphs 22 to 28.

Criminal Law - Topic 5343

Evidence - Confessions and voluntary statements - Exculpatory statements by accused on arrest - The accused at his trial on a charge of rape called a policeman to testify about an exculpatory statement which the accused made at the time of his arrest - The trial judge admitted the statement, because it showed the consistency of the accused's defence of consent - The Alberta Court of Appeal held that the statement was inadmissible - The Court of Appeal held that exculpatory statements by an accused on his arrest are inadmissible unless the statement was part of the res gestae or is called to rebut a suggestion of recent fabrication - See paragraphs 3 to 13 - The Court of Appeal stated that such a statement is not admissible to show consistency - See paragraphs 13 to 18.

Cases Noticed:

R. v. Storey (1968), 52 Cr.A.R. 334, consd. [para. 6].

R. v. Roberts, [1942] 1 All E.R. 187, folld. [para. 6].

R. v. Graham, [1974] S.C.R. 206, folld. [para. 7].

R. v. Pappin (1970), 12 C.R.N.S. 287, appld. [para. 7].

Welstead v. Brown, [1952] 1 S.C.R. 20, appld. [para. 11].

R. v. Giraldi, 28 C.C.C.(2d) 248, appld. [para. 12].

Nominal Defendant v. Clements (1960), 104 C.L.R. 476, appld. [paras. 12, 16].

Hopkinson v. Perdue (1904), 8 O.L.R. 228, refd to. [para. 16].

R. v. Munster (1961), 34 C.R. 47; 129 C.C.C. 277, appld. [para. 23].

R. v. McMillan (1975), 29 C.R.N.S. 191, appld. [para. 24].

Vezeau v. The Queen (1976), 8 N.R. 235; 28 C.C.C.(2d) 81, appld. [para. 25].

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, sect. 613(1)(b) [para. 22]; sect. 613(4) [para. 23].

Authors and Works Noticed:

Archbold, Criminal Pleading, Evidence and Practice (38th Ed.), p. 693 [para. 6].

Cross on Evidence (4th Ed.), pp. 207 [para. 4]; 218 [para. 6].

Cross, Reform of the Law of Evidence (1961), 24 M.L.R. 45 [para. 6].

Gooderson, R.N., Previous Consistent Statements, [1968] Cambridge, L.J. 64, 65 [para. 5].

McWilliams, Canadian Criminal Evidence [para. 10]; p. 216 [para. 26].

Phipson on Evidence (11th Ed.), para. 1538 [para. 6].

Ratushny, E., Basic Problems in Examination and Cross-examination (1972), 52 C.B.R. 217 [para. 18].

Ratushny, E., Statements of an Accused (1971-72), 14 C.L.Q. 425 [para. 18].

Wigmore on Evidence (Revised Ed.), vol. 4, p. 298 [para. 16].

Counsel:

D.J. Martinson, for the appellant;

A.W. MacDonald, for the respondent.

This case was heard before McGILLIVRAY, C.J., McDERMID, J.A. and MOSHANKY, J. (ad hoc) of the Alberta Supreme Court, Appellate Division.

On June 23, 1977, McDERMID, J.A., delivered the following judgment for the Appellate Division:

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