ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR12-40000-52100
DATE: 20130912
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
Derrick Oram
P. Leishman and J. Tupper, for the Crown
A. Craig, for Derrick Oram
HEARD: June 10, 2013
M. Forestell J.
RULING ON ADMISSIBILITY OF THE exculpatory statement of the accused
Background
[1] The accused was charged with second degree murder. He pleaded not guilty and raised the defence of self-defence. The accused sought to introduce into evidence the exculpatory audio and videotaped statement that he made to the police immediately following his arrest and about 20 minutes after the deceased was stabbed. The application was brought following the close of the Crown’s case.
[2] The Crown had brought a pre-trial application for a ruling that the two statements of the accused to the police were voluntary and admissible. The statements were not introduced as part of the Crown’s case but the Crown intended to rely on them in cross-examination of the accused. The accused conceded voluntariness.
[3] In the case for the Crown, evidence was adduced of the flight of the accused from the scene of the stabbing. Crown counsel indicated an intention to rely on the evidence as post-offence conduct consistent with guilt.
[4] On June 11, 2013 I ruled that the exculpatory statement was admissible and gave brief oral reasons for that decision. I indicated that written reasons would follow. These are those reasons.
Legal Principles
[5] As a general rule, prior consistent statements of a witness are not admissible. This rule applies to the prior consistent statements of an accused witness. However, as explained in R. v. Edgar, 2010 ONCA 529, there are exceptions to the general rule. In Edgar, the Ontario Court of Appeal held that it is open to a trial judge to admit a spontaneous out-of-court statement by an accused made upon arrest or when first confronted with an accusation as an exception to the general rule excluding prior consistent statements.
[6] As Sharpe J.A. wrote at paragraph 72 of Edgar:
I conclude, therefore, that it is open to a trial judge to admit an accused’s spontaneous out-of-court statements made upon arrest or when first confronted with an accusation as an exception to the general rule excluding prior consistent statements as evidence of the reaction of the accused to the accusation and as proof of consistency, provided the accused takes the stand and exposes himself or herself to cross-examination. …[T]he statement of the accused is not strictly evidence of the truth of what was said (subject to being admissible under the principled approach to hearsay evidence) but is evidence of the reaction of the accused, which is relevant to the credibility of the accused and as circumstantial evidence that may have a bearing on guilt or innocence.
Application of the Principles
[7] The statement that is tendered by the defence was made about 17 minutes after the 911 call was made reporting the stabbing.
[8] The 911 call was made by the accused’s then wife, Judith Oram. In the 911 call Ms. Oram is extremely distraught and emotional. The 911 call has been played to the jury. The Crown relies on it as evidence of the demeanour and emotional state of Ms. Oram at the time and to establish a chronology of the timing of the events.
[9] Ms. Oram has testified in the trial. There are some aspects of her testimony that are relevant to this application. Ms. Oram has testified that she yelled at the accused to stop when he was stabbing the deceased. She testified that he gave her the knife and that when he saw the blood and when Mr. Haughton collapsed the accused just walked past and left.
[10] Ms. Oram was cross-examined on prior apparently inconsistent statements given to the police about 2 to 2.5 hours after the stabbing. I permitted the Crown to re-examine by showing Ms. Oram portions of the video recording of her statement. It was argued, and I found, that the emotional state of the witness as depicted in the video was relevant and necessary for an assessment of the context of the apparent inconsistencies.
[11] A further relevant consideration on this application is that the Crown relies on Mr. Oram’s conduct in leaving the scene as post-offence conduct consistent with guilt.
[12] The statement that is tendered on this application was made in the police car following the arrest of Mr. Oram for assault with a weapon.
[13] By way of a very general summary of the statement, Mr. Oram describes being held by the deceased and grabbing at something. Mr. Oram has difficulty at one point in the statement in accurately stating his birth date. He is heard praying when the police leave him alone in the car. He is very emotional in the video.
[14] The Crown has argued that the statement was not spontaneous as it was made after the accused had 20 to 25 minutes to think about the events in circumstances where he would inevitably expect to be arrested.
[15] Neither Edgar nor the cases that followed Edgar established a time limit within which an exculpatory statement must be made by an accused in order to be admissible.
[16] Pursuant to the principles enunciated in Edgar, the issue is not the number of minutes, seconds or hours between the events and the making of the statement, but the issue is the probative value of the statement. The probative value of a statement may be substantially reduced by the passage of time depending upon the intervening circumstances and depending upon the issue to which the statement relates.
[17] In the circumstances of this case, the statement is tendered as evidence of the emotional state of the accused within 20 to 25 minutes of the stabbing and as evidence of the post-offence conduct of the co-operation with the police. The statement also is tendered as evidence of consistency with the version of events which the accused will advance in his testimony and which he offered immediately upon arrest with little opportunity to fabricate or tailor his evidence.
[18] In all of the circumstances, the statement has substantial probative value. It is capable of rebutting or neutralizing the evidence of post-offence conduct consistent with guilt. It is relevant to the state of mind or emotional state of Mr. Oram. And it is evidence of consistency capable of enhancing the credibility of the accused.
[19] Where, as in this case, evidence of the emotional state and consistency of the main Crown witness has been admitted, the jury is entitled to similar evidence of the emotional state and consistency of the accused.
[20] In addition, it would be unfair to leave the jury with the evidence of Mr. Oram’s flight from the apartment without providing them with the evidence that he co-operated with the police.
[21] I have therefore concluded that the post-arrest statement is admissible.
Forestell J.
Released: September 12, 2013
COURT FILE NO.: CR12-40000-52100
DATE: 20130912
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
Derrick Oram
RULING ON ADMISSIBILITY OF THE exculpatory statement of the accused
Forestell J.
Released: September 12, 2013