R. v. N.M. et al., (2007) 404 A.R. 327 (NWTCA)

• Judge: Conrad, Gower and Watson, JJ.A.
• Court: Court of Appeal (Northwest Territories)
• Case Date: April 17, 2007
• Jurisdiction: Northwest Territories
• Citations: (2007), 404 A.R. 327 (NWTCA)

R. v. N.M. (2007), 404 A.R. 327 (NWTCA);

      394 W.A.C. 327

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. MY.040

N.M, R.M. and A.M. (appellants) v. Her Majesty the Queen (respondent)

(A-1-AP-2005000040; A-1-AP-2005000041; A-1-AP-2005000042; 2007 NWTCA 3)

Indexed As: R. v. N.M. et al.

Northwest Territories Court of Appeal

Conrad, Gower and Watson, JJ.A.

April 17, 2007.

Summary:

Three accused were charged with rape relating to events that occurred in August 1975. The trial ended in a hung jury. A retrial took place in September 2005 and the jury returned verdicts of guilty. The accused appealed.

The Northwest Territories Court of Appeal allowed the appeals, set aside the convictions and directed stays of proceedings in relation to the indictment as against each of the accused.

Criminal Law - Topic 4352

Procedure - Charge or directions - Jury or judge alone - Direction on evidence generally - Three accused were charged with rape - The jury returned verdicts of guilty - The Northwest Territories Court of Appeal allowed the accused's appeals - The trial judge correctly told the jury in her charge that not all inconsistencies in the evidence were important - However, there were important inconsistencies - The trial judge, inter alia, erred in not summing up the important inconsistences in connection with the separate positions of each accused - See paragraphs 18 to 22.

Criminal Law - Topic 4362

Procedure - Charge or directions - Jury or judge alone - Directions regarding separation of evidence against several accused in a joint trial - [See Criminal Law - Topic 4352 ].

Criminal Law - Topic 4362

Procedure - Charge or directions - Jury or judge alone - Directions regarding separation of evidence against several accused in a joint trial - Three accused were charged with rape relating to events that occurred in August 1975 - The jury returned guilty verdicts - The Northwest Territories Court of Appeal allowed the accused's appeals - The trial judge, inter alia, failed to adequately address the individual positions and discrete defences of each accused - The common thread of argument challenged the complainant's credibility, but in connection with different defences - The Crown did not contend that each was a party to the offence of the other - It was vital for the jury to understand the theory of each accused and how the evidence and the alleged defects in the evidence related to those positions - In parts of the charge, the trial judge treated the defence positions cumulatively on the subject of credibility - Although the trial judge told the jurors that they had to render an individual verdict for each accused, she failed to explain how the critical evidence related to each accused's position - See paragraphs 6 to 10.

Criminal Law - Topic 4394

Procedure - Charge or directions - Jury or judge alone - Directions re inferences from failure to call evidence - Three accused were charged with rape - The jury returned guilty verdicts - The Northwest Territories Court of Appeal allowed the accused's appeals - At trial a police officer indicated that two women who were not called to testify were "evasive" - The trial judge properly told the jury not to rely upon that expression or opinion - However, the trial judge, inter alia, erred in advising the jurors that they were not to speculate about the reasons why the women were not called - The jurors were entitled to find that the absence of the women raised a reasonable doubt as to the circumstances - If, in accordance with the complainant's evidence, the women were present at the same party that the complainant attended on the night in question, they could have been expected to provide vital information respecting who else attended and what happened - If they were not present, their evidence would have contradicted the complainant's evidence - Crown counsel's jury submission also implied that the jurors could disregard the absence of such evidence - Also, contrary to the Crown's jury submission, the issue was not whether the Crown acted properly in not calling the women - The issue was the effect of their absence upon the jury's confidence in the Crown's case - Further, the jury asked a question respecting the lack of evidence - The trial judge's answer did not make clear how the absence of witnesses or other evidence was a matter from which doubt could arise even if they believed the complainant on some issues - Evidentiary gaps could raise a reasonable doubt - See paragraphs 11 to 17.

Criminal Law - Topic 4411.1

Procedure - Opening and closing addresses - Summing up - Counsel - Closing address - Reference to Crown's failure to call witness - [See Criminal Law - Topic 4394 ].

Criminal Law - Topic 4958

Appeals - Indictable offences - New trials - Grounds for refusing new trial - Three accused were charged with rape relating to events in August 1975 - The first trial ended in a hung jury - The retrial took place in September 2005 and the jury returned verdicts of guilty - The Northwest Territories Court of Appeal allowed the accused's appeals and set aside the convictions based on inadequacies in the jury charge - The court stayed the proceedings against each accused - In deciding the appropriate remedy the court considered: (1) the accused's ages at the time (aged 15, 16 and 20); (2) the long passage of time; (3) that the time already served and the time spent on judicial interim release placed the overall results within the appropriate range of sentence; and (4) the difficulties respecting the acquisition of potential defence evidence - See paragraphs 24 to 29.

Criminal Law - Topic 4965.2

Appeals - Indictable offences - New trials - Where sentence served or partially served - [See Criminal Law - Topic 4958 ].

Cases Noticed:

R. v. Pittiman (R.), [2006] 1 S.C.R. 381; 346 N.R. 65; 209 O.A.C. 388; 2006 SCC 9, refd to. [para. 7].

R. v. Azoulay, [1952] 2 S.C.R. 495, refd to. [para. 9].

R. v. Karaibrahimovic (J.J.) (2002), 303 A.R. 181; 273 W.A.C. 181; 164 C.C.C.(3d) 431; 2002 ABCA 102, refd to. [para. 11].

R. v. Jolivet (D.), [2000] 1 S.C.R. 751; 254 N.R. 1, refd to. [para. 12].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, refd to. [para. 17].

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, refd to. [para. 17].

R. v. Keyowski, [1988] 1 S.C.R. 657; 83 N.R. 296; 65 Sask.R. 122, refd to. [para. 25].

Counsel:

The appellant, N.M., appeared on his own behalf;

H. Latimer, for the appellant, R.M.;

A. Tralenberg, for the appellant, A.M.;

M. McGuire, for the respondent.

This appeal was heard on April 17, 2007, by Conrad, Gower and Watson, JJ.A., of the Northwest Territories Court of Appeal. Watson, J.A., delivered the following memorandum of judgment orally for the court on the same date.