Brown and Murphy v. The Queen, [1985] 2 S.C.R. 273

Craig Donovan Brown and Robert Clayton Murphy Appellants;

and

Her Majesty The Queen Respondent.

File No.: 17313.

1985: February 15; 1985: October 10.

Present: Dickson C.J. and Beetz, Estey, McIntyre, Wilson, Le Dain and La Forest JJ.

on appeal from the court of appeal for alberta

Criminal law ‑‑ Cross‑examination ‑‑ Disagreement in Court of Appeal regarding the effect of accused’s improper cross‑examination ‑‑ Cross‑examination not prejudicial to accused ‑‑ No miscarriage of justice.

Appellants were charged with rape and tried jointly by a judge sitting without a jury. In his testimony, Murphy contradicted the evidence given by the complainant. Brown did not testify but a statement he made to the police supported the evidence of his co‑accused. At trial, the Crown conducted an overly‑aggressive cross‑examination of Murphy which exceeded the limits of permissible cross‑examination. The trial judge found both appellants guilty. His conclusion was based on findings of credibility not on the impugned cross‑examination. On appeal, the majority of the Court of Appeal did not find the cross‑examination prejudicial to the appellants and dismissed their appeals acting on the power contained in s. 613(1) (b)(ii) of the Criminal Code. The dissenting judge took the view that it was prejudicial and that, in any event, it was of such nature as to bring the system of justice into disrepute. Hence this appeal.

Held: The appeal should be dismissed.

Assuming that a disagreement as to the existence of prejudice could amount to a question of law which would give jurisdiction to this Court to entertain the appeal, the Court of Appeal made no error in finding that the improper cross‑examination was not prejudicial to the accused. As to the suggestion that in the absence of prejudice the appeal should be allowed lest the system of justice be brought into disrepute, it is evident that in dismissing the appeal the majority rejected any such suggestion and they made no error in that respect.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1970, c. C‑34, s. 613(1)(a), (b)(ii).

APPEAL from a judgment of the Alberta Court of Appeal (1982), 1982 ABCA 292, 1 C.C.C. (3d) 107, 41 A.R. 69, dismissing appellants' appeals from their convictions for rape. Appeal dismissed.

William R. Pieschel, for the appellant Brown.

A. Clayton Rice, for the appellant Murphy.

Jack Watson, for the respondent.

The judgment of the Court was delivered by

1. McIntyre J.‑‑The appellants were jointly charged and jointly tried for rape. They were convicted by Foisy J., of the Court of Queen's Bench of Alberta, sitting without a jury. Their appeals to the Court of Appeal (McClung, Stevenson and Harradence JJ.A.) were dismissed, Harradence J.A. dissenting. This appeal is taken pursuant to leave granted March 24, 1983. A motion by the Crown to quash the appeal for the reason that no question of law was raised was abandoned at the commencement of the hearing in this Court.

2. At trial, the evidence of the complainant was flatly contradicted by Murphy. Brown did not give evidence, but a statement he made to the police supported the evidence of Murphy. The complainant swore that shortly after midnight on July 30, 1979, when returning to her apartment after making a telephone call at a nearby public telephone, the appellant, Brown, followed her and forced his way into her apartment. He was followed by Murphy who on entry locked the door behind him. Murphy seized her, took her down the hall to a bedroom and had intercourse with her without her consent. Later Brown entered the room and the performance was repeated. She gave many details of the events that occurred which need not be repeated here. Murphy, on the other hand, swore that the complain­ant invited him and Brown into the apartment to wait until a friend arrived with some marijuana. He admitted intercourse but said that it was with the complainant's consent and cooperation. Brown denied intercourse. The principal issue then was one of credibility.

3. During the trial counsel for the Crown conducted what might be termed an overly‑aggressive and improper cross‑examination of Murphy. There can be no doubt that the cross‑examination in many ways was objectionable and exceeded the limits which should bind Crown counsel in cross‑examination. The trial judge did not restrict Crown counsel sufficiently. In the Court of Appeal other grounds were advanced by the appellants, but the sole ground upon which the court called for argument by the Crown was the cross‑examination point. It was also the principal point raised in this Court.

4. The trial judge on conflicting evidence found that the appellants were guilty. In doing so he based his conclusion on findings of credibility. He believed the complainant and he disbelieved the appellants. In his reasons for judgment he reviewed her evidence. He recognized certain inconsistencies in her testimony, and he noted as well corroborative facts which supported it. He found significant corroboration of her evidence in the medical testimony which included observations by the examining physician of abrasions upon her back that were consistent with her account of events. He weighed and balanced her evidence against that of the appellants and made his finding of credibility upon that comparison. There was evidence before him upon which he could reach his conclusion, and it is evident from his reasons that he did not base his conclusion on the impugned cross‑examination but upon the conflicting evidence which was before him and after considering the various factors which ought to affect the approach of a trial judge to a case where the conviction will depend essentially upon the evidence of one person.

5. The majority of the Court of Appeal expressed disapproval of the cross‑examination, but they did not find it prejudiced the appellants. In dismissing the appeal, they were, of course, acting on the powers contained in s. 613(1)(b)(ii). This means that they decided that the appeal could not be allowed on any grounds set out in s. 613(1)(a). In other words, they concluded that the appeal could not succeed on the ground that the conviction was unreasonable or could not be supported on the evidence; that the trial judgment should not be set aside on the ground of a wrong decision on a question of law; and that there was no miscarriage of justice. Harradence J.A., in dissent, agreed that the cross‑examination was improper. He considered, however, that prejudice had been caused to the appellants and that, even if it had not resulted in prejudice, it was of such nature that it would bring the system of justice into disrepute. He concluded that the prejudice resulted in a miscarriage of justice.

6. It will be seen that the only difference between the majority and the minority in the Court of Appeal turns on the effect of the cross‑examination. The majority takes the view that it was not prejudicial to the appellant and is not a ground upon which the appeal should be allowed. The dissenting judge takes the view that it was prejudicial and should have been effective to allow the appeal and that, in any event, it was of such nature as to bring the system of justice into disrepute. Assuming, without deciding, that a disagreement as to the existence of prejudice could amount to a question of law which would give jurisdiction to this Court to entertain the appeal, it is my opinion that the majority of the Court of Appeal made no error. As to the suggestion that in the absence of prejudice the appeal should be allowed lest the system of justice be brought into disrepute, it is evident that in dismissing the appeal the majority rejected any such suggestion and, in my view, they made no error in that respect.

7. I would therefore dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant Brown: McLaws & Company, Calgary.

Solicitor for the appellant Murphy: A. Clayton Rice, Edmonton.

Solicitor for the respondent: Jack Watson, Edmonton.