Ontario Superior Court of Justice

Court File No.: 11-30000331-0000
Date: 2012-03-19

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – KAMAL BARUA Accused

J. Hanna , for the Crown
U. Kancharla , for the Defence

HEARD:

RULING RE: RE-EXAMINATION OF T.K.

mICHAEL G. QUIGLEY j.

[ 1 ] In the course of her cross-examination of Ms. T.K., the mother of the complainant N.E., defense counsel advanced a lengthy and complex theory of fabrication relative to the charges. In essence, that theory was that Ms. T.K. wished to marry Mr. S., the man to whom she is now married in a Muslim common-law marriage or nikha.

[ 2 ] Ms. T.K. allegedly wanted him back in spite of him having allegedly had an affair with her cousin, the very person she visited on March 29, 2010. It was that visit that caused her to leave her son N.E. with Krishna and Kamal Barua overnight on March 29–30, 2010 when the sexual assault is alleged to have occurred. She needed to come up with a way to get him back according to the defence.

[ 3 ] According to the defense theory, Ms. T.K. believed that her opportunity was at hand when she picked up N.E. at about 9:00 PM on March 30, when he disclosed to her that he had had dreams the night before, a disclosure made in the very brief interval when Ms. T.K. and N.E. were allegedly talking in the stairwell of the apartment building on T[…] in between floors and apartments 8[…] where the Barua’s lived and 9 […] where they lived.

[ 4 ] The defense theory is that Ms. T.K. knew how suggestible her son was and so she told him that he had not had dreams of being assaulted by Mr. Barua, but that instead, that is what actually occurred. Despite its questionable logic, this story was said by the defense to have been fabricated by Ms. T.K. as her method of causing Mr. S. to feel guilt about N.E., which it is alleged would entice him to marry her. This cold, methodical and self-serving fabrication, as it is styled by the defense, was what allegedly preceded the 911 call made by Ms. T.K. and Mr. S. to police only minutes later to report the sexual assault against N.E. allegedly perpetrated against him while he was sleeping over at the Barua apartment on the night of March 29–30, 2010.

[ 5 ] Whether this construct of the defense has any air of reality to it will remain to be determined by the jury as they consider the credibility and the reliability of Ms. T.K.'s responses to defense counsel as this theory was being put to her at the close of her cross examination. It will suffice for present purposes to note that she vehemently denied all of these suggestions, displaying some emotion and total disdain for defense counsel in the course of doing so. She strongly and emphatically denied each of the suggestions, responding that these were the constructions of the imagination of defense counsel. She strongly and directly said “no” numerous times as the propositions were put to her. Moments later, the defense finished its cross-examination.

[ 6 ] It is against this background that the Crown insists it is entitled to play the recording of the 911 call to Ms. T.K. in re-examination, again I stress, in re-examination. The Crown says that by this theory, the defense has put the state of mind of the mother, Ms. T.K., into issue. He says that the defense paints her as a cold and calculating person who has manufactured these events and injected them into the mind of her suggestible son, N.E., and that he needs to “rebut” that suggestion, presumably on the basis that he does not perceive that the persistent, vehement and adamant denials of Ms. T.K. were adequate to refute the defense contentions against her.

[ 7 ] He says that to do so he needs to play the 911 recording during which Mr. S. is the principal speaker, a call that is at a very high level of emotion, and during which Ms. T.K. can be heard shrieking and screaming in the background.

[ 8 ] The Crown says that this very strong evidentiary response reflecting the demeanour of the witness moments after the fabrication allegedly arises ought to be permitted to be entered in re-examination, even though the Crown acknowledges that he had concluded on his own, correctly in my view, that the uncontrolled high emotion of that recording, including repetitive screams of the allegation that the defendant sexually assaulted N.E., caused its prejudicial effect to materially outweigh its probative value. He wishes to play that tape now in re-examination of Ms. T.K. to show that the state of mind of the complainant's mother immediately after she allegedly coldly manufactured fabrication of sexual assault against her son when the 911 call was made was entirely inconsistent with such a fabrication.

[ 9 ] There are two problems with the Crown’s request.

[ 10 ] First, in my view and respectfully, Crown counsel misunderstands what the permitted scope of re-examination ought to be in the particular circumstances of this case. While re-examination may achieve a rebuttal of the propositions put to a witness in cross-examination, re-examination is not generally for the purpose of “rebutting” the defence case or theory. The scope of re-examination is limited to matters about which the witness was cross-examined. Re-examination is not re-examination in chief:

The purpose of re-examination is largely rehabilitative and explanatory . The witness is afforded the opportunity, under questioning by the examiner, to explain , clarify or qualify answers given in cross-examination that are damaging to the party's case . There is no right, however, to introduce new matters in re-examination, subjects that should have been canvassed, if at all, in examination in chief: see Watts Manual of Criminal Evidence , 2011 at para. 21.01

[ 11 ] In the present case, it is not evident to me that the answers given by Ms. T.K. in response to the questioning of defense counsel relative to the theory of fabrication advanced by the defence require explanation, clarification, or qualification . The answers given by Ms. T.K., consisting of vehement and adamant denials to the allegations put forward by defense counsel in her theory of fabrication are not in need of either explanation or clarification or qualification. They are boldfaced, emphatic, blunt denials of the propositions put to her by defense counsel.

[ 12 ] The Crown arguably has no further need to rebut the propositions put forward by defense counsel in her theory – the witness herself has rebutted those propositions in unequivocal terms. The Crown advances R. v. Candir , 2009 ONCA 915 to support the prospect of re-examination serving a rebuttal function, and in that case it did because of the impression that was left at the conclusion of the cross examination that the police investigation in that case had been inadequate.

[ 13 ] Watt J.A. observes at para. 148 that it is fundamental that the permissible scope of re-examination be linked to its purpose and the subject matter on which the witness has been cross examined. However, whether Ms. T.K.’s denial of the propositions put to her by defense counsel is accepted by the jury, is not a matter of explanation or clarification or qualification of the answers she gave during her cross-examination. It is a question of the jury’s assessment of the credibility and reliability of Ms. T.K.’s testimony.

[ 14 ] The defence says that re-examination of the kind proposed by the Crown ought not to be allowed because she says it simply will generate evidence of her demeanour after the alleged fabrication when the 911 call is made, but that “an assessment of credibility based on demeanour alone is not good enough in a case where there are so many significant inconsistencies:” R. v. G.G. , 1997 1976 (ON CA) , [1997] O.J. No. 1501, at para. 15 ; R. v. Norman , 1993 3387 (ON CA) , [1993] O.J. No. 2802 at paras. 45-47 , and R. v. Baltusraitis , 2002 36440 (ON CA) , [2002] O.J. No. 464, all decisions of our Court of Appeal.

[ 15 ] Nevertheless, I do accept the proposition that the defense theory can be viewed as an allegation of recent fabrication made in respect of the testimony of Ms. T.K.. Allegations of recent fabrication may be rebutted in re-examination by prior consistent statements of the witness being elicited in re-examination. As a general rule, a prior consistent statement is not admissible because it is self-serving, unhelpful and potentially dangerous to triers of fact. It may be regarded typically as nothing more than oath helping. It is admissible, however, to corroborate and bolster a witness’s evidence in rebuttal of an allegation of recent fabrication.

[ 16 ] That is not the exact use of the questioning that would arise in this case, questions relative to the state of mind and demeanor of Ms. T.K., posed either to her in re-examination, or to Mr. S. in examination in chief should he be called by the Crown to corroborate the demeanor and state of mind of Ms. T.K.. That is relative to her demeanour at the time the 911 call was made, only moments after the fabrication is alleged to have arisen or been manufactured. However, it seems to me that such evidence may serve to rebut the defense theory and suggestions that were put to the witness. To that extent, they do serve to qualify and explain further the answer she gave in cross-examination to the direct questions that were put to her.

[ 17 ] In this case, I accept the proposition put forward by Crown counsel that the disclosure made by this witness and her husband, Mr. S. through the 911 call placed mere moments after the fabrication is alleged to have occurred or originated is effectively evidence of a prior consistent statement made by this witness, or in the case of her husband Mr. S., evidence that would corroborate her state of mind and distress at the time that the 911 call was made. It was not made before the allegation was allegedly fabricated, but within minutes thereafter.

[ 18 ] As I indicated to the Crown at the conclusion of argument on Friday, March 16, I was more than willing to permit questions to be asked in re-examination of Ms. T.K. relative to the phone call to 911 as evidence of prior consistent statements by her which would permit the jury to fairly assess the defense contention that she fabricated the entire sexual assault story relative to her son N.E. only seconds before that phone call was made.

[ 19 ] However the Crown made clear that that was not adequate from his perspective.

[ 20 ] His response to me made plain his desire to play the 911 recording specifically to permit the jury to hear the high level of emotion that is evidenced in that recording. That in turn leads into the second issue relating to his request to play the 911 tape, either in re-examination or in the course of the examination in chief of Mr. S., should he be called to testify.

[ 21 ] The Crown advances several authorities for this including R. v. Patterson , 2003 30300 (ON CA) , [2003] O.J. No. 1353 (C.A.) at paras 46-49 , but that was a case where it was simply sought to put parts of the videotaped statement of the complainant to her in re-examination for purposes of clarification. That statement had none of the pyrotechnic aspects or high emotion to it that is evident here in the 911 call. R. v. A.C. , [2009] O.J. No. 3895 (O.C.A.) was a judge alone trial, not a jury trial, and so the considerations relative to hearing evidence of the complainant’s level of emotion in the 911 tape were different.

[ 22 ] R. v. DeSouza , [2012] O.J. No. 270 was a case where Ricchetti J. ruled in the course of pretrial applications, prior to the commencement of the jury trial, and importantly, on the basis of necessity, that the 911 tape was the best evidence of the state of mind of the complainant. However, he also acknowledged that there was no doubt that the statements made by the complainant during the 911 calls, being hearsay, would be inadmissible unless ruled to be spontaneous utterances or admissible under the principled approach exception to the hearsay rule. The key issue there was necessity and Ricchetti J. ruled that the statements were necessary.

[ 23 ] As I have indicated, I accept here that re-examination must be permitted to respond to the defence allegations in cross-examination of fabrication on the part of Ms. T.K. once the defence raised the issue of Ms. T.K.’s motivation for alleging a sexual assault against her son: see also R. v. Ramos , [1997] O.J. No. 2687 at paras. 29-30 . This must necessarily be the case even though her own responses to those allegations were strong and emotional denials. However, that does not respond to whether the playing of the 911 call itself is necessary to achieve the objective sought by the Crown.

[ 24 ] Thus, the second reason why I have concluded the tape will not be played is that in my view, his original decision not to play the 911 recording in his examination in chief of Ms. T.K. was the correct one. I accept the proposition that a 911 tape may and frequently is played in evidence in criminal trials. I accept the case law put to me this morning relative to re-examination. However, the contents of the tape and the high-end emotions, screams, and specific accusations of sexual assault that it reflects, makes clear to me that it’s very high prejudicial effect relative to what I regard as its very limited probative value cannot permit the 911 tape to be played. Perhaps the result would be different on a judge alone trial, but I have concluded that the risk of the jury giving undue weight to that recording and not just for the limited purposes for which it is sought to be admitted, but in a wider context relative to the case as a whole, means that it cannot be played in this case.

[ 25 ] The result sought by the Crown can be achieved in a less prejudicial manner. I accept that the allegation of recent fabrication calls for clarifying re-examination evidence and as I have explained, I will permit Crown counsel to ask questions in re-examination of Ms. T.K. and in examination in chief of Mr. S., should he choose to call him, that will permit him to rebut the theory of the defense relative to fabrication, but the use of the 911 tape for rebuttal purposes is rejected. I will also permit Crown counsel to make use of the ICAD Event Details Report prepared by Toronto Police Services and arising out of that 911 call in that re-examination on Ms. T.K. or in examination of Mr. S., should he be called to testify. It records much of what transpired on that call without having the special effects component of wailing and screaming that is the foundation for my concern that it ought not to be heard in the circumstances of this case.

[ 26 ] To repeat and summarize, in my view there are two problems with the Crown’s request, and both of them cause me to rule that the tape recording of the 911 call shall not be played for the jury in the course of this trial, either for re-examination of Ms. T.K. or in the course of the examination in chief of Mr. S., should Crown counsel choose to call him before closing his case.

Michael G. Quigley, J.

Released: March 19, 2012

ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN – and – KAMAL BARUA

REASONS FOR JUDGMENT Michael G. Quigley, J.

Released: March 19, 2012