COURT FILE AND PARTIES
COURT FILE NO.: CR-12-30000211-0000
DATE: 20131122
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
SANG-WOO YE
Applicant
Soula Olver and Kosta Stratos, for the Crown
Edward Sapiano, for Mr. Ye
HEARD: November 12 and 13, 2013
M. Forestell J.
RULING ON
APPLICATION TO ADMIT EXCULPATORY STATEMENT OF THE ACCUSED
Overview of the Application
[1] The Applicant is charged with the first degree murder of Khoung Nguyen on May 9, 2007. He is also charged with two counts of robbery and one count of unlawful confinement.
[2] The Applicant has entered guilty pleas to the two counts of robbery and to unlawful confinement. When called upon to plead to the offence of first degree murder he pleaded not guilty to the offence of first degree murder, but guilty to the included offence of manslaughter. The guilty plea to manslaughter was not accepted by the Crown and a not guilty plea was entered on the count of first degree murder.
[3] The trial of the Applicant commenced on November 12, 2013 with a pre-trial application to introduce his exculpatory statement through the cross-examination of two Crown witnesses.
Evidence on the Application
[4] The evidence on the application consisted of the transcripts of the testimony of Gunil Yang, Brian Lee, and Jeffrey Johnson at the preliminary inquiry and the transcript of the testimony of Joanna Pham at the preliminary inquiry of Brian Nguyen.
[5] The deceased, Khoung Nguyen was shot and killed in the course of a robbery of a marijuana grow operation operated by the deceased and his wife. The Applicant was one of four individuals involved in the robbery. One accomplice, Brian Nguyen, planned the robbery. Brian Nguyen was inside the residence with the deceased and his wife to assist in the harvesting of the marijuana. He told the other three how to gain entry and accomplish the robbery.
[6] Gunil “Tony” Yang recruited the Applicant and another man, Brian Lee, to participate in the home invasion robbery. There was discussion before the robbery about whether the Applicant should bring a gun. The evidence of the two accomplices will be that the plan was that no one would be hurt in the robbery. The Applicant arrived with a gun. The three men attended at the house and gained entry through the garage as directed by Brian Nguyen who was inside the house. Within a short time after the three men entered the garage of the house, the Applicant ordered the deceased and Brian Nguyen to lie down on the floor. When the deceased was on the floor or getting to the floor, the gun which was being brandished by the Applicant discharged and the deceased was shot in the back of the head.
[7] The three men continued with the robbery. Joanna Pham, the wife of the deceased, was tied up. Brian Nguyen was also tied up. The marijuana was taken from the house. At the end of the robbery, Mr. Lee was in the van and Mr. Yang and the Applicant were in the house. The Applicant put his gun into the waistband of his pants. The gun discharged again and wounded the Applicant in the leg. The Applicant and Mr. Yang left the house, entered the van and drove away. When they were in the van driving from the scene, Mr. Yang and Mr. Lee were upset and asked the Applicant what had happened. The evidence of Mr. Yang and Mr. Lee at the preliminary inquiry was that the Applicant said that it was an accident. Mr. Yang also testified that he believed that the Applicant said something about his thick gloves to explain the accident.
[8] The Applicant, through his counsel, has undertaken to testify. His defence to the charge of murder will be that the gun discharged accidentally.
Positions of the Parties
[9] Counsel for the Applicant submits that the statement of the Applicant to the two accomplices is admissible for its truth as res gestae. Alternatively, he submits that it is admissible as evidence of the reaction of the Applicant to the allegation pursuant to the rule in Edgar, 2010 ONCA 529, [2010] O.J. No. 3152 (C.A.). He submits that the statement is admissible through the cross-examination of the Crown witnesses and alternatively that it is admissible when the Applicant testifies.
[10] The Crown submits that the statement does not fall within the res gestae exception nor is it admissible pursuant to the rule in Edgar. Alternatively, the Crown submits that if the statement is admissible, it does not become admissible until the Applicant testifies.
Issues
[11] The issues that must be addressed in this application may be framed as follows:
Is the statement of the Applicant admissible as res gestae?
If the statement is not admissible as res gestae, is it admissible under the rule in Edgar?
If the statement is admissible, can it be led through cross-examination of the Crown witnesses or is it only admissible if the Applicant testifies?
Analysis
- Is the statement of the Applicant admissible as res gestae?
[12] The Court of Appeal for Ontario in R. v. Sheri, 2004 8529 (ON CA), [2004] O.J. No. 1851, identified two situations in which the res gestae doctrine may be properly invoked: (1) declarations accompanying and explaining relevant acts; and (2) spontaneous exclamations.
[13] Quoting from R. v. J.E.F. (1993), 1993 3384 (ON CA), 85 C.C.C. (3d) 457, the Court in Sheri explained that to qualify for admission under the first category, the words must be so inter-related to a fact in issue that they become part of the fact itself. The words must “introduce the fact in issue, explain its nature, or form in connection with it one continuous transaction.”
[14] To qualify for admission under the second category of a spontaneous exclamation the utterance must be “the result of a startling occurrence or excitement provoking event.” (Sheri para. 107) In R. v. Nicholas, 2004 13008 (ON CA), [2004] O.J. No. 725 at para 88 the Court of Appeal explained that an utterance need not be made strictly contemporaneously with the occurrence. However, the stress or pressure from the event must be ongoing at the time of the utterance and the statement must be made before there has been time to contrive or misrepresent.
[15] In this case, the deceased was shot within minutes of the entry to the house by the three men. They did not leave the house for about 20 minutes. After Mr. Nguyen was shot, the Applicant and the other two men carried on with the robbery. They tied up the other occupants of the house and stole the marijuana. The exculpatory statement that the shooting was an accident was made after the robbery was finished and the three men were driving away. The words spoken by the Applicant were spoken in response to questioning by his accomplices.
[16] Counsel for the Applicant argues that the statement is admissible under both branches of res gestae. He argues that the shooting and the ensuing robbery were all one continuous transaction that included the flight of the three parties from the scene and the discussion that occurred about the events. He submits that the words of the Applicant introduce a fact in issue (the shooting) and explain its nature.
[17] I find that the utterance in this case does not meet the requirements for admission under the res gestae exception to the hearsay rule.
[18] By the time the Applicant made the statement, about 20 minutes had passed. While I find that the robbery, unlawful confinement and flight were related to the shooting, the actions of the Applicant after shooting Mr. Nguyen were sufficiently discrete to create both a temporal and substantive separation between the event of the shooting and the explanation. The statement was a narrative explanation for the actions of the Applicant, but it was not so inter-related to the shooting that the words became a part of the fact itself. I further find that the statement was not sufficiently spontaneous to be part of the res gestae. It was made in response to the questions of the other parties to the crime. The startling or provoking event was over. The stress or pressure of the event, if present, was dissipating as the Applicant was being driven away from the scene. The fact that the Applicant accidentally shot himself while leaving the house created a degree of stress or pressure but this source of stress or pressure was clearly distinct from the earlier event of the shooting of Mr. Nguyen.
- If the statement is not admissible as res gestae, is it admissible under the rule in Edgar?
[19] In R. v. Edgar, the Court of Appeal for Ontario concluded that it was open to a trial judge to admit an accused person’s out-of-court statement made upon arrest or when first confronted with an accusation as an exception to the general rule excluding prior consistent statements. Exculpatory statements may be admissible, not for their truth but as evidence of the reaction of the accused. To be admissible the statement must have probative value to a fact in issue; it must be sufficiently spontaneous; and the accused must take the stand and exposes him/herself to cross-examination.
[20] To be admissible the statement must have probative value. As noted by Sharpe J.A. in Edgar (para. 67): “If evidence fails to add anything new, repetition is less than helpful.” McKinnon J. in R. v. Liu, 2003 64227 (ON SC), [2003] O.J. No. 74 (S.C.J.) observed at paragraph 31: “Critical to the determination of the admissibility of a previous self-serving statement is its relevance to a fact in issue.”
[21] It was not argued by the Crown that the statement lacked probative value beyond mere repetition.
[22] The statement is relevant to the issue of the demeanour and emotional state of the accused minutes after the robbery was complete when first confronted with respect to the offence.
[23] The position of the Crown is that the statement is not sufficiently spontaneous to be admitted. The Crown submits that the passage of 20 minutes from the shooting to the utterance provided the Applicant with ample opportunity to ‘think things out’ and concoct a story. The Crown submits that the statement should therefore be excluded. The Crown further argues that the exception fashioned by Edgar applies only to statements made to the police and not to statements to third parties.
[24] The Applicant argues that the statement in this case is sufficiently spontaneous to qualify for admission under the rule in Edgar and that the principles in Edgar are not restricted to statements to persons in authority.
[25] I will first address the requirement for spontaneity and then I will address the argument that the recipient of the statement must be a person in authority.
Spontaneity
[26] In Edgar, Sharpe J.A. considered the traditional exceptions to the hearsay rule which permitted the introduction of the prior consistent statement of an accused person. These were:
Where the statement was relevant to the state of mind of the accused;
Where the Crown alleges recent fabrication;
Where the Crown seeks to introduce the inculpatory portion of a mixed statement; and,
Where the statement forms part of the res gestae.
Sharpe J.A. noted that the list of exceptions was not exhaustive. He then went on to apply the principle from R. v. Seaboyer; R. v. Gayme, 1991 76 (SCC), [1991] 2 S.C.R. 577 favouring the admissibility of all probative evidence unless outweighed by prejudicial effect or some clear ground of law or policy. At paragraphs 38 to 40 of Edgar, Sharpe J.A. refers to the case law admitting evidence of ‘consciousness of innocence’. The statements of the accused upon first being confronted with an allegation may have probative value as circumstantial evidence consistent with innocence. That probative value must not be outweighed by prejudicial effect.
[27] The conclusion of the Court of Appeal that the prior consistent statements of an accused person may be admissible is not based on the statements meeting the test for res gestae. The Court relies on a principled approach rather than on the traditional exceptions. From this I conclude that while spontaneity is required to justify admission, the requirement of spontaneity and connection to the event is not identical to the requirement under the doctrine of res gestae. Sharpe J.A. observed in Edgar that the English Court of Appeal had held that the test to be applied was “partly that of spontaneity, partly that of relevance and partly that of asking whether the statement which is sought to be admitted adds any weight to the other testimony which has been given in the case.”
[28] Clearly statements lacking in spontaneity may be excluded. In Edgar, Sharpe J.A. wrote: “Statements that are lacking in spontaneity may be either excluded or, in the case of doubt, made the subject of an instruction to the jury as to weight by the trial judge.”
[29] In R. v. Badhwar, 2011 ONCA 266 the statement of the accused was provided to the police five hours after the event and after the police contacted the accused and asked him to surrender himself. The Court of Appeal upheld the trial judge’s decision to exclude the statement emphasizing that to be admissible a statement should be made before the accused has time to ‘think things out.’
[30] In considering whether the statement is sufficiently spontaneous to be admissible, the passage of time is a relevant but not determining factor. In Edgar, the first two statements of the accused were highly spontaneous and made within minutes of his arrest. The third was made four hours later when he was in the hospital recovering from injuries suffered in the altercation. All three were admissible. The third statement was said to be a continuation of the first two and fairly described as a statement upon arrest and upon being first confronted with the allegation, in spite of the passage of time.
[31] I find that the statement of the accused in this case is sufficiently spontaneous to be admissible. On the evidence before me, the statement was made when the accused was first confronted and asked to explain his actions. The confrontation occurred minutes after the robbery was complete and about 20 minutes after the shooting. The passage of time in this case was minimal. The requirement of spontaneity is intended to increase the reliability of the statement by reducing the risk of fabrication. The risk of fabrication must be reduced but it need not be eliminated for a statement to have probative value. The risk of fabrication, as set out in Edgar, can be addressed by cross-examination and by an instruction to the jury as to weight.
Person in Authority
[32] In Edgar, the statements in issue were all made to police officers after arrest. The Canadian cases referred to in Edgar as having previously articulated a rule permitting the admission of prior inconsistent statements of an accused person all involved statements to the police (R. v. Lucas, 1962 625 (SCC), [1963] 1 C.C.C. 1; R. v. Suzack (2000), 2000 5630 (ON CA), 141 C.C.C. (3d) 449 (Ont. C.A.); R. v. Small, [1991] O.J. No. 3693 (Ont. Ct. Gen. Div.); and R. v. Rozich (1979), 1979 4422 (QC CS), 10 C.R. (3d) 364 (Que. S.C.)).
[33] The respondent in this case points out that in Edgar at paragraph 23 Sharpe J.A. framed the issue before the Court as a consideration of the specific treatment accorded prior consistent statements of an accused person “immediately upon arrest or when first confronted with an accusation by the police.” However, the restriction of the principles enunciated in Edgar to statements made to police seems at odds with para. 72 of the decision where Sharpe J.A. articulated the rule as follows: 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…”.
[34] While there has not been a Canadian case post‑Edgar admitting an exculpatory statement to a person other than a person in authority pursuant to the ‘rule in Edgar’, Holmes J. in R. v. Pattison, 2011 BCSC 1594, admitted the exculpatory statement of an accused person to a 911 operator.
[35] Holmes J. in Pattison did not rely upon Edgar to admit the statement to the 911 operator. However, the statement was admitted for essentially the same purposes identified in Edgar. The statement was admitted to show the reaction of the accused after the shooting. It was admitted in fairness in a case where the Crown relied on evidence of calmness and deliberate action after the shooting.[^1]
[36] The argument of the respondent is that the rule in Edgar should be restricted to statements to persons in authority because the exception articulated in Edgar is grounded in the nature and context of the confrontation.
[37] In my view, there is no logical basis for concluding that an exculpatory statement by an accused person when first confronted by a co‑perpetrator will always be less reliable than a statement by an accused person to a person in authority.
[38] I accept the argument of the respondent that the nature and context of the confrontation is a critical factor in assessing the reliability and thus the probative value of the statement. However, the assessment must depend on a principled rather than categorical approach.
[39] Turning to the facts in this case, the statement of the accused in this case was made upon first being confronted with an accusation by the other participants in the robbery.
[40] I find that the nature and context of the confrontation does not in this case render the statement so unreliable that it should not be received.
[41] In reaching this conclusion I take into account the purpose for which the statement is admitted. The statement is not admissible for its truth. The jury must and will be instructed that they cannot rely on the statement for its truth, but may only use it as evidence of the reaction of the accused to the allegation and to assess his credibility.
[42] The Crown relies on the calm and deliberate action of Mr. Ye after the shooting of the deceased as evidence of the intent necessary for murder. In fairness, the Applicant should be permitted to lead evidence of his demeanour and emotional state, including the words that he spoke.
- If the statement is admissible, can it be led through cross‑examination of the Crown witnesses or is it only admissible if the Applicant testifies?
[43] The Applicant argues that he should be permitted to elicit the exculpatory statement through cross‑examination of the Crown witnesses.
[44] The respondent submits that the court in Edgar was clear in requiring that the accused actually take the witness stand before a prior exculpatory statement be admitted.
[45] I agree with the respondent that the Court of Appeal in Edgar was abundantly clear in requiring that an accused person testify before his or her prior exculpatory statement can be admitted.
[46] Therefore, I conclude that the accused must testify before the statement is admissible. The contents of the statement cannot be elicited through cross‑examination of the Crown witnesses.
Conclusion
[47] To summarize:
The exculpatory statement of the Applicant is not admissible as res gestae;
The exculpatory statement is admissible as evidence of the reaction, demeanour and emotional state of the accused upon first being confronted with the allegation pursuant to the principles in Edgar and as a matter of fairness in light of the evidence to be led by the Crown with respect to demeanour and emotional state;
The contents of the statement cannot be elicited unless and until the accused testifies.
M. Forestell J.
Released: November 22, 2013
COURT FILE NO.: CR-12-30000211-0000
DATE: 20131122
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
SANG-WOO YE
RULING ON
APPLICATION TO ADMIT EXCULPATORY STATEMENT OF THE ACCUSED
M. Forestell J.
Released: November 22, 2013
[^1]: The Court of Appeal in upholding the conviction considered only the instruction to the jury and not the admissibility of the statement. [2013] B.C.J. No. 1074