ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-10657
DATE: 2014/03/05
PUBLICATION BAN IN EFFECT UNDER S. 648 OF THE CRIMINAL CODE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
KHAMEA LOUANGRATH
Respondent
Matthew Geigen-Miller, for the Applicant
David Anber, for the Respondent
HEARD: February 24, 2014
RULING #2: PAST RECOLLECTION RECORDED
Aitken J.
Nature of the Application
[1] The Crown seeks a ruling that a portion of a statement prepared by a witness, Tim McCarthy, within a couple of days of the incident in question, be deemed admissible under the past recollection recorded exception to the hearsay rule.
Background
[2] The accused, Khamea Louangrath, is charged with assault causing bodily harm in regard to an assault against Brad Morrice that occurred in the alley behind The Drink nightclub on April 23, 2011. On that night, Tim McCarthy was in charge of security at The Drink, and he observed some interactions that occurred between, on the one hand, the accused and the group of men who accompanied him and, on the other hand, Brad Morrice and Tyler Fradette – both of whom were assaulted in the alley.
[3] During his examination-in-chief, Tim McCarthy provided evidence in regard to his observations of the role that the accused played in the alley when Mr. Morrice and Mr. Fradette were being assaulted. He referred to the accused as the “Asian guy” and another man whom the accused was with as the “white guy”. Mr. McCarthy testified that he recognized both of these men because they were regulars at The Drink, and he had seen them there, together, on several previous occasions. Mr. McCarthy said that the accused was “punching or stomping one or both individuals” (i.e. Mr. Morrice and Mr. Fradette), that the accused “was participating in that”. Mr. McCarthy stated that he could not remember the angles or exactly who was doing what, and that in the statement he had provided to the police shortly after the incidents he would have remembered more. Based on this evidence which seemed to come from Mr. McCarthy’s current memory, Crown counsel did not bring an application to admit portions of Mr. McCarthy’s statement as past recollection recorded, as he had thought he might have to do. In fact, Crown counsel had alerted the court and Defence counsel, well prior to the commencement of the trial, and again at the commencement of the trial, that such an application might be necessary.
[4] When cross-examined, Mr. McCarthy stated that, although he had a clear picture of “the white guy” sucker punching one of the individuals, when it came to the things that the Asian guy was doing, he could not picture it. He did recall that both the “white guy” and the “Asian guy” were there for the punching and stomping. He testified that when he had prepared his statement and had described the Asian guy, he had been certain that it was the accused who he saw doing the punching and stomping. However, right now, almost three years after the event, the only thing that he could visualize was the white guy giving the sucker punch.
[5] On re-examination, Crown counsel sought to ask questions of Mr. McCarthy to clarify his evidence as to what he could remember now regarding the accused’s participation in the actual assault on Messrs Morrice and Fradette, and what he was testifying to based solely on what he had written in the statement prepared within a few days of the incident. Defence counsel objected to this question. I allowed it because it was unclear to me, and therefore, I presumed, to the jury, the extent to which Mr. McCarthy had some current memory of the accused’s involvement in the assault or whether he had no present memory and, in providing evidence as to the accused’s involvement, was relying completely on what he had written in his statement. Crown counsel specifically asked Mr. McCarthy whether, when he testified during examination-in-chief about the accused’s participation in the beating, he was doing so from present memory. Mr. McCarthy replied that he did not have a current memory of the details of the accused’s participation in the actual beating and, in this regard, had been relying on what he had stated in the statement he provided to his employers and to the police shortly after the assault occurred. He testified that the only thing he could recall in regard to what the accused was actually doing to the two victims was that he remained slightly hovering over one individual at the end of the assault. As well, Mr. McCarthy remembered that, as the accused was leaving the alley, the accused said to him that the two victims had damaged his truck.
Voir Dire Evidence
[6] On the voir dire, Mr. McCarthy testified that, within a couple of days, he prepared a statement of his observations as to what had occurred at The Drink on the evening of April 23, 2011. He typed the statement on his computer at home, and printed it there, prior to returning to work later in the week. He allowed under cross-examination that the statement could have been prepared as late as April 28, 2011, but he did not think so. He believed that he had completed it earlier than that and probably on April 24, 2011. He was clear that he had not spoken to his employer about the events prior to preparing the statement, aside from speaking to the manager of The Drink at The Drink on the night of April 23, 2011, because the manager happened to be in his office at The Drink at the time. Mr. McCarthy had advised the manager that he would prepare a statement describing the events of that evening.
[7] Mr. McCarthy explained that the purpose for which he wrote the statement was two-fold. As part of his duty as head of security at The Drink, he was obliged to write reports for his employer in regard to any incidents that occurred under his watch. In addition, he realized that the police might be interested in the events of that evening. In fact, one of the main reasons why it was company policy for a book to be kept of any incidents that occurred at The Drink was so that such statements would be available for the police, should they need them.
[8] Mr. McCarthy’s evidence was that, when he typed the statement, he was not under the influence of alcohol. He wrote the statement to the best of his knowledge and tried to be honest at the time. He wrote the statement when the events of the evening were freshest in his memory. At the time he wrote the statement, he was certain about what he wrote.
Principles Regarding Past Recollection Recorded
[9] The past recollection recorded exception to the hearsay rule was summarized by the Ontario Court of Appeal in R. v. Richardson, 2003 3896 (ON CA), [2003] O.J. No. 3215 (C.A.), at para. 24:
Past recollection recorded is a well-established exception to the hearsay rule. Although the test has been described in different language over the years, the essential conditions for admissibility are as follows:
Reliable record: The past recollection must have been recorded in a reliable way. This requirement can be broken down into two separate considerations: First, it requires the witness to have prepared the record personally, or to have reviewed it for accuracy if someone else prepared it. Second, the original record must be used if it is available.
Timeliness: The record must have been made or reviewed within a reasonable time, while the event was sufficiently fresh in the witness’s mind to be vivid and likely accurate.
Absence of memory: At the time the witness testifies, he or she must have no memory of the recorded events.
Present voucher as to accuracy: The witness, although having no memory of the recorded events, must vouch for the accuracy of the assertions in the record; in other words, the witness must be able to say that he or she was being truthful at the time the assertions were recorded.
See R. v. Fliss (2002), 2002 SCC 16, 161 C.C.C. (3d) 225; Wigmore on Evidence (Chadbourn rev., 1970) vol. 3 at para. 734-755; John Sopinka, Sidney N. Lederman and Alan W. Bryant, The Law of Evidence in Canada, 2d ed. (Toronto, Butterworths, 1999) at para. 16.83-16.86.
Analysis
[10] Mr. McCarthy prepared the statement himself and signed it. It is typed and clear. The original typed statement, printed on Mr. McCarthy’s home printer, was tendered in evidence.
[11] As stated in Richardson, the timeliness requirement does not call for strict contemporaneity; “it is sufficient if the statement is prepared close enough to the events to ensure accuracy” (para. 27). Mr. McCarthy’s evidence was that the statement was prepared within a few days of the incident when the details of the event were clear in his mind.
[12] Although Mr. McCarthy was able to testify about many aspects of what occurred on the night of April 23, 2011, he was clear in re-examination that he could not recall the details of what the accused was doing when Mr. Morrice was assaulted, aside from being in the alley and later bending over one of the victims. I accept his memory loss as genuine. It has been three years since the assault occurred. In the meantime, Mr. McCarthy has continued to work as the head of security at The Drink. He has witnessed many confrontations and fights. What occurred on April 23, 2011 was not out of the ordinary for him then or now. Mr. McCarthy did remember the initial sucker punch that the “white guy” had levied at one of “the kids”, but not the details of the assaults that continued. He explained that the sucker punch had started off the assaults and it had been the strongest blow of the punches that he saw. This is a credible reason as to why Mr. McCarthy would remember that punch while not remembering other aspects of the assault.
[13] Past recollection recorded can be used even if the witness remembers some aspects of the events about which he is testifying. If there is a part or an aspect of the events that he cannot now remember, but of which he had a clear memory at an earlier time, and that memory was reduced to writing at that time, that portion of the written statement can be introduced into evidence on the basis of past recollection recorded (Richardson, at paras. 30-31).
[14] Finally, Mr. McCarthy vouched for the reliability of his written statement. He testified that, when he prepared it, he was being truthful and the details of the events that he included in the statement were clear in his mind. He had no doubt whatsoever about the accuracy of his statement. He did not include anything in his statement about which he was not clear.
[15] Defence counsel argued that the probative value of this evidence was outweighed by its prejudicial effect. I disagree. The evidence is highly probative as it is evidence from an independent and uninvolved observer as to what happened during the attack on Mr. Morrice and Mr. Fradette in the alley. His observations were made from a close vantage point – he was in the middle of the situation as it was occurring. His evidence was that, on the evening of April 23, 2011, he was sober and had his full faculties. In terms of prejudice, any prejudice that arises from the inability of Defence counsel to fully cross-examine Mr. McCarthy on his observations at the time of the attack, due to the absence of a current memory, can be reduced through a specific instruction to the jury to the effect that past recollection recorded is a lower form of evidence to which the jury should give extra cautious scrutiny. Defence counsel also has the ability to cross-examine Mr. McCarthy on his vantage point when the observations were made and the extent to which his view was blocked due to the presence of many men in a small space. He can also cross-examine regarding the composition of the group that Mr. McCarthy observed, and how many were Asian men, like the accused. Mr. McCarthy has a current memory of these aspects of the events.
Disposition
[16] The Crown’s application to tender evidence by way of past recollection recorded is granted. Defence counsel shall have the right to cross-examine Mr. McCarthy so as to explore issues of credibility and reliability relating to the content of the statement put into evidence.
[17] That portion of the statement to be tendered as past recollection recorded and simply read into the record is the following:
I remember seeing the white guy from Group A all of a sudden sucker punch one kid from Group B. The Asian guy from Group A also started punching the other guy from Group B. So the two kids started getting stomped by about 5 or 6 guys from Group A. I believe the Industry guys were just watching, I don’t recollect them actually fighting anybody but they weren’t helping the situation.
Aitken J.
Released: March 5, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
KHAMEA LOUANGRATH
Respondent
RULING #2: PAST RECOLLECTION RECORDED
Aitken J.
Released: March 5, 2014