Court of Appeal for Ontario

CITATION: R. v. Murray, 2013 ONCA 178 DATE: 20130325 DOCKET: C52695

Rosenberg, Juriansz and Epstein JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Jeffrey Murray Appellant

Counsel: Dale Ives, for the appellant Grace Choi, for the respondent

Heard: March 4, 2013

On appeal from the conviction entered on September 19, 2008 by Justice D.A. Harris of the Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant was convicted of assault with a weapon, uttering threats, and forcible confinement, in a domestic setting. The complainant was his fiancée who lived with him. The complainant deliberately failed to attend court for his trial. A videotaped K.G.B. statement she had given to the police was admitted at trial and was the main evidence against him. He appeals on the basis that he never had the opportunity to cross-examine her.

[2] In order to succeed, the appellant must establish that the trial judge erred by finding the hearsay statement reasonably necessary, and sufficiently reliable to be admitted despite the lack of cross-examination.

[3] The events for which the appellant was charged occurred on December 31, 2007 and January 1, 2008. On January 4, 2008, the complainant provided a sworn K.G.B. statement to the police.

[4] The matter was first set for a trial to begin on March 6, 2008, but the Crown applied for an adjournment. The complainant was not in court and the police had not yet personally served her with a subpoena. The police had information that after the events, she was staying at a brother’s home in London. The brother indicated to the police that the complainant had gone to stay with her mother in Sault Ste. Marie, and that she was no longer willing to testify in court. On February 29, 2008, a detective had called the mother’s house. Another brother advised he could not put the police in touch with the complainant, and stated she would go even further into hiding if she knew the police were trying to contact her. The police couriered a subpoena to the Sault Ste. Marie police to serve upon the complainant.

[5] Also in support of its request for an adjournment, the Crown called a witness from the Victim Witness Assistance Program. She testified that the complainant wanted the charges against the appellant dropped. As a result, the witness arranged an appointment for some time in mid-February for the complainant to meet with the Crown. The witness left several messages for the complainant but was not able to get in touch with her. On March 6, 2008, before court, the witness spoke with the complainant’s mother who told her that she did not know the complainant’s location and that she believed the complainant would not attend court.

[6] The appellant called his mother who identified nine emails from the complainant. These indicated that the complainant still loved the appellant and would not attend court on the trial date. They also suggested that the complainant had been communicating with the appellant and had visited him at the jail. In a typed attachment to one of the emails, the complainant had recanted her K.G.B. statement. The appellant’s mother did not know where the complainant was.

[7] Appellant’s counsel consented to a short adjournment to March 18, 2008, so that the Crown could take further steps to secure the complainant’s attendance at trial.

[8] On March 18, 2008, the Crown was no closer to having the complainant attend at trial. The Crown applied to have the complainant’s oral statements to the police officer and her videotaped K.G.B. statement admitted as evidence. The trial judges admitted the K.G.B. statement but refused to admit the oral statements the complainant made to the police officer.

[9] The Sault Ste. Marie police substitutionally served the complainant by leaving a copy of the subpoena at her mother’s home on March 3, 2008. A detective was in touch with the complainant’s mother in Sault Ste. Marie on March 7, 2008. The mother advised that the complainant had gone into hiding, did not want to be subpoenaed or attend court and the police were not going to find her by calling the mother’s house. On March 14, 2008, the police asked the detention center to contact them if the complainant visited the appellant.

[10] In the K.G.B. statement the complainant described a prolonged altercation that was consistent with injuries evident in photographs taken. She described how she was beaten with a rope, and the threats the appellant had made to her and members of her family. Photographs taken by the police showed numerous bruises on the complainant’s legs, arms and back, and a dark bruise on her right eye. The front door of the residence that the appellant and the complainant shared showed damage consistent with it being kicked in as the complainant described. In the residence, the police found an undated and unsigned piece of cardboard on which were written the words “Never meant to hurt you sorry baby xoxoxo”.

[11] We see no error in the trial judge’s finding that the necessity requirement was satisfied. As he observed, the complainant had made it clear that she was unwilling to testify against the appellant, and that she would continue to hide from the police in order to ensure that she could not be compelled to do so. Her intention to not incriminate the appellant was resolute. The trial judge commented that she had indicated in her emails she would do anything in her power to make things go well for the appellant. He found that her statement comprised the only evidence that the Crown could put forward in its attempt to prove the charges against the appellant. This latter finding shows that the trial judge recognized that necessity was not based on unavailability of the witness but on the unavailability of the evidence in her K.G.B. statement. Even if the complainant’s attendance in court were compelled, her K.G.B. statement would be the only evidence the Crown could put forward.

[12] The trial judge found that the statement was sufficiently reliable to overcome the lack of cross-examination. He reasoned that there was an accurate, sworn and warned record of what was said; there was no reason for the complainant to make the allegations up; and the statement was given only a few days after the event so there were no memory problems. Further, the complainant’s description of what occurred was consistent with her injuries seen in the photographs and the damage to the front door, her account was made without prompting and she was careful not to overstate her allegations. If the statement were not true it could be assumed she would testify under oath that she had not been assaulted.

[13] In summary, the trial judge’s conclusions regarding both the statement’s necessity and reliability were reasonably supported by the evidence.

[14] The appeal is dismissed.

“M. Rosenberg J.A.”

“R.G. Juriansz J.A.”

Gloria J. Epstein J.A.”