R. v. Moir (D.B.R.)

• Jurisdiction: British Columbia
• Court: Court of Appeal (British Columbia)
• Judge: D. Smith, Bennett and Harris, JJ.A.
• Citation: 2013 BCCA 36,(2013), 332 B.C.A.C. 102 (CA)
• Date: 01 November 2012
• Subject Matter: EVIDENCE,CRIMINAL LAW

R. v. Moir (D.B.R.) (2013), 332 B.C.A.C. 102 (CA);

    569 W.A.C. 102

MLB headnote and full text

Temp. Cite: [2013] B.C.A.C. TBEd. FE.001

Regina (respondent) v. Dustin Blue Robert Moir (appellant)

(CA038222; 2013 BCCA 36)

Indexed As: R. v. Moir (D.B.R.)

British Columbia Court of Appeal

D. Smith, Bennett and Harris, JJ.A.

January 30, 2013.

Summary:

Moir was convicted of first degree murder by a judge sitting with a jury. He appealed the conviction. The issues on appeal included whether the trial judge erred in failing to instruct the jury on the limited use of prior statements, in admitting rebuttal evidence tendered by the Crown after the defence closed its case, and in his instruction on motive.

The British Columbia Court of Appeal allowed the appeal, set aside the conviction and directed a new trial.

Criminal Law - Topic 4293.1

Procedure - Trial judge - Duties and functions of - Jury trials - [See first Criminal Law - Topic 4322.6 ].

Criminal Law - Topic 4296

Procedure - Trial judge - Duties and functions of - Prior out-of-court statements by principal witnesses - [See second Criminal Law - Topic 4375.2 ].

Criminal Law - Topic 4322.6

Procedure - Jury - General - Triers - Instructions to - The trial judge gave opening instructions in writing to the jury - He incorporated those instructions into the final instruction by reference - The opening instructions were not marked as an exhibit - In addition, mid-trial instructions were provided to the jury in writing, which were not marked as exhibits - The British Columbia Court of Appeal commented that "when jury instructions are provided to jurors in writing, they must be marked as exhibits for the record. Also, when written drafts of the jury instructions are prepared and distributed to counsel for review, the drafts also need to be marked for identification, as otherwise the submissions with respect to the charge to the jury are incomprehensible for the purpose of appellate review. The submissions of counsel on the content of the charge to the jury are often a key component in the analysis of the correctness of the charge." - See paragraphs 13 and 14.

Criminal Law - Topic 4322.6

Procedure - Jury - General - Triers - Instructions to - [See Criminal Law - Topic 4399.9 ].

Criminal Law - Topic 4375.2

Procedure - Jury charge - Directions regarding prior inconsistent statements - The British Columbia Court of Appeal stated that "[g]enerally, a prior inconsistent statement of a non-accused witness is only admissible to challenge the credibility of that witness. If the witness adopts the prior statement, then the statement may be used for the truth of its contents. The exception to this rule, based on necessity and reliability, is not present here. This is a complicated rule of evidence. The failure to instruct the jury on the proper uses of prior inconsistent statements may be a reversible error. ... With few exceptions, a witness's prior consistent statements are not admissible. If the jury hears prior consistent out-of-court statements, a limiting instruction as to the use of the statements must almost always be given by the trial judge. Failure to do so will generally be an error of law." - See paragraphs 16 to 18.

Criminal Law - Topic 4375.2

Procedure - Charge or directions - Jury or judge alone - Directions regarding prior inconsistent statements - The British Columbia Court of Appeal held that the failure to give a limiting instruction in this case was a legal error that could not be cured by the application of s. 686(1)(b)(iii) of the Criminal Code - There were two versions of the events available to the jury, one in which the accused was an active principal or aider of the offence of murder; the other in which he was a fearful bystander and accessory after-the-fact - The trial judge did not instruct the jury on the proper use of prior consistent and inconsistent statements from witnesses - By failing to do so, he fell into error - That error alone required a new trial - The evidence was not so overwhelming that it could be said that a reasonable and properly instructed jury would inevitably have convicted the accused had the error not been made - Nor could it be said that the error was so harmless that it could not have affected the verdict - See paragraphs 21 to 43, 75.

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post-offence behaviour of accused - The Crown relied on six acts of post-offence conduct of the accused in its closing address to the jury - The trial judge did not give an instruction on the use of post-offence conduct - The accused appealed his conviction of first degree murder - He submitted that the conduct was equally consistent with someone who had been an accessory-after-the-fact, and that the trial judge should have instructed the jury that the conduct had "no probative value" - The British Columbia Court of Appeal rejected that ground of appeal - The evidence of the after-the-fact conduct was provided in the accused's statement to his undercover "handler" as part of his confession to murder - An instruction would only have served to confuse the jury - "A jury charge must be based in reality and not appear to be angels dancing on the head of a pin." - See paragraphs 58 to 62.

Criminal Law - Topic 4508

Procedure - Trial - Special duties of Crown - Duty respecting presentation of evidence at trial - [See first Criminal Law - Topic 5235 ].

Criminal Law - Topic 4516

Procedure - Trial - Special duties of Crown - Splitting Crown's case - [See first Criminal Law - Topic 5235 ].

Criminal Law - Topic 4950

Appeals - Indictable offences - New trials - Grounds - Misdirection by trial judge - General - [See second Criminal Law - Topic 4375.2 ].

Criminal Law - Topic 5041

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Where jury charge incomplete or in error - [See second Criminal Law - Topic 4375.2 ].

Criminal Law - Topic 5235

Evidence and witnesses - Rebuttal evidence - By Crown - The British Columbia Court of Appeal set out the principles applicable to the admission of rebuttal evidence in criminal cases - "The Crown is not permitted to 'split' its case. It must call all of the evidence it intends to rely on before the accused is required to determine whether to present a defence. This is grounded in basic rules of trial fairness. As with any rule, there are exceptions, and this rule is no different. The Crown may call reply or rebuttal evidence in limited circumstances, which includes evidence that becomes relevant when the defence calls evidence that the Crown could not have reasonably foreseen. ... The Crown is not permitted to call rebuttal evidence if the evidence relates to a collateral matter, is irrelevant, is simply confirmatory of evidence already called by the Crown or is relevant but in the Crown's hands before the defence commenced its case." - See paragraphs 48 and 49.

Criminal Law - Topic 5235

Evidence and witnesses - Rebuttal evidence - By Crown - The accused appealed his conviction of first degree murder - The victim was 14 - The accused and his father (West) were originally named as co-accused; the father's motion for severance was granted - The accused testified on his own behalf but called no other evidence - The trial judge permitted the Crown to call one further witness (Phillips) in rebuttal, after the defence closed its case - The trial judge held that Phillips' evidence was admissible on two bases: relevant to the issues of motive and duress - The Crown relied on the evidence in its closing address to demonstrate a propensity on the part of the accused to have sexual relations with young girls - The British Columbia Court of Appeal held that the evidence "fell far outside the permissible bounds of proper rebuttal evidence. It was an error to admit it" - The use of the evidence by the Crown compounded the error - "[T]he only basis upon which Ms. Phillips' evidence may have been relevant was on the issue of the relationship between Mr. Moir and his father. This was not new evidence to the Crown, however. The Crown was alive to the potential defence long before Mr. Moir testified." - See paragraphs 45 to 57.

Evidence - Topic 511

Presentation of evidence - Rebuttal evidence - Criminal cases - [See both Criminal Law - Topic 5235 ].

Cases Noticed:

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. 14].

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

R. v. Bevan and Griffith, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165, refd to. [para. 17].

R. v. Bevan - see R. v. Bevan and Griffith.

R. v. Kokotailo (J.R.) (2008), 254 B.C.A.C. 262; 426 W.A.C. 262; 2008 BCCA 168, refd to. [para. 17].

R. v. Demetrius (L.) (2003), 176 O.A.C. 349; 179 C.C.C.(3d) 26 (C.A.), refd to. [para. 19].

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. 20].

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

R. v. Stiers (K.) (2010), 264 O.A.C. 305; 255 C.C.C.(3d) 99; 2010 ONCA 382, refd to. [para. 28].

R. v. Toten (W.P.) (1993), 63 O.A.C. 321; 14 O.R.(3d) 225 (C.A.), refd to. [para. 28].

R. v. Van (D.), [2009] 1 S.C.R. 716; 388 N.R. 200; 251 O.A.C. 295; 2009 SCC 22, refd to. [para. 43].

R. v. Krause, [1986] 2 S.C.R. 466; 71 N.R. 61, refd to. [para. 49].

R. v. Aalders, [1993] 2 S.C.R. 482; 154 N.R. 161, refd to. [para. 50].

R. v. White (D.R.), [2011] 1 S.C.R. 433; 412 N.R. 305; 300 B.C.A.C. 165; 509 W.A.C. 165; 2011 SCC 13, refd to. [para. 59].

R. v. Pintar (J.) (1996), 93 O.A.C. 172; 30 O.R.(3d) 483, refd to. [para. 61].

R. v. MacKenzie, [1993] 1 S.C.R. 212; 146 N.R. 321; 118 N.S.R.(2d) 290; 327 A.P.R. 290, refd to. [para. 70].

R. v. Mayuran (S.) (2012), 431 N.R. 232; 284 C.C.C.(3d) 1; 2012 SCC 31, refd to. [para. 71].

Counsel:

R.P. Thirkell and K.R. Beatch, for the appellant;

S.J. Brown, for the respondent.

This conviction appeal was heard at Vancouver, British Columbia, on November 1, 2012, before D. Smith, Bennett and Harris, JJ.A., of the British Columbia Court of Appeal. In reasons written by Bennett, J.A., the Court delivered the following judgment, dated January 30, 2013.