Case Commentaries

AuthorRosemary Pattenden
Publication Date01 April 2009
Mixed statements—Canada
A mixed statement is a statement by the defendant which on its face is partly
incriminating and partly exculpatory, for example, ‘I hit him with the hammer,
but it was in self-defence’. If the prosecution relies on a mixed statement, in
fairness to the defendant, the whole statement must be tendered. Since the
decision of the Court of Appeal in R v Duncan (1981) 73 Cr App R 359, English judges
usually direct the jury that the whole of the statement is admissible as evidence of
what it states, but excuses are not necessarily deserving of the same weight as
admissions: ‘the incriminating parts are likely to be true (otherwise why say
them?)’. This direction was endorsed by the House of Lords in R v Sharpe [1988] 1
WLR 7 and R v Aziz [1996] 1 AC 1. In two concurrently released judgments, R v Rojas
2008 SCC 56 and R v Illes 2008 SCC 57, the Supreme Court of Canada has unani-
mously declared that it is dangerous for a trial judge to instruct the jury in any
manner that suggests that the different parts of a mixed statement ought to be
weighed differently. Common-sense comments of this nature should be left to
Judges have traditionally had a discretion to comment on evidence in the
summing-up so long as it is made clear to the jury that factual issues, including
assessment of the reliability of evidence, are for the jury to decide. Why should
judges not pass comment on a mixed statement? The court’s principal rationale
is the danger of confusing the jury and encroaching on the jury’s function.
Limiting instructions should only be given if they will assist the jury with their
fact-finding task. Charron J, the author of the leading judgment on this point,
I can think of no principled reason to explain to a jury that they are
hearing the accused’s confession because the court is satisfied beyond
reasonable doubt that it was voluntarily made. Likewise, it would only
risk encroaching unduly on the jury’s domain to tell them that they
are hearing a piece of similar fact evidence because, in the judge’s
view, the similarities with the offence are such that they ‘defy coinci-

dence’. In the same way, I see little advantage in expounding for the
jury the underlying rationale for the mixed statement exception.
(ibid. at [39]–[40])
This rationale is disingenuous. It is unwise to tell the jury why evidence was
admitted if that reason has no bearing on the weight of the admitted evidence, but
this is not the case with the Duncan direction. If it were, Crown counsel would not
be allowed to suggest that inculpatory and exculpatory statements ought to be
weighed differently. The facts of Illes disclose a second more pragmatic rationale,
namely, the practical difficulty of identifying admissions. In Illes the trial judge
mistakenly gave a Duncan direction in respect of a purely exculpatory statement.
The Supreme Court said that the statement was not literally incriminating. It was
incriminating in the light of other evidence. The judge’s error was compounded by
a direction to the jury that insofar as the statement was incriminating (which it
was not in fact), jurors could presume that it was true. Duncan does not create a legal
presumption, but if a judge can misread Duncan this way, there is every risk that a
jury might misinterpret a correctly worded judicial direction this way too. The
Supreme Court divided upon whether the misdirection in Illes had resulted in an
unfair trial, with the majority deciding that it did. There was unanimous
agreement that the Duncan direction given in Rojas was harmless. An important
consideration was that the judge correctly told the jury an incriminating
statement must be proved beyond reasonable doubt before it can be considered
whereas an exculpatory statement does not have to be. If a Duncan direction is
avoided this potentially confusing direction is also avoided. Following R v Morin
[1988] 2 SCR 345, no comment about the standard of proof in respect of particular
items of evidence on which the prosecution case rests is called for. The jury should
be directed not to convict unless satisfied that the prosecution has proved each
element of the offence beyond reasonable doubt.
Historical evidence—New Zealand
Amongst the issues considered in R v Stewart [2008] NZCA 429 was what warning
should be given to the jury about historical evidence. The sexual offences that
formed the subject of the charges were alleged to have taken place between 1967
and 1974 when the complainant was aged between 8 and 14. The trial happened in
2006 because the complainant waited until 2004 to contact the police. At the trial
the defence alleged recent fabrication. In rebuttal, the Crown called several
witnesses to whom the complainant had reported sexual offences by the appellant
a very long time ago. The appellant argued that this evidence should have been the
subject of an historical evidence warning. The judge did give such a warning about
the complainant’s evidence but according to the defence, that warning was inade-
quate. The judge had said:

[W]here we are dealing with historical events, there is need for special
care, for caution on your part as a jury. It is only a matter of common
sense. A number of witnesses freely acknowledge that they had little
or no recall of detail, contextual detail, but said by contrast that they
could remember core aspects … So it would be for you to consider
those various witnesses and ask whether the loss of detail is of real
concern or whether it is not. What you must not do … is relax the
burden of proof.
The warning, the appellant complained, should have complied with the require-
ments laid down by the High Court of Australia in Longman v R (1989) 168 CLR 79 at
91: long delay makes cross-examination difficult; the jury should not convict
unless, having scrutinised the evidence with great care, the jury is satisfied it is
true and accurate.
In New Zealand, the Evidence Act 2006, s. 122(2) states that the judge ‘must
consider whether to give a warning under subsection (1) whenever … evidence is
given … (e) … about the conduct of the defendant if that conduct is alleged to have
occurred more than 10 years previously’. Subsection (1) confers a discretion to
‘warn the jury of the need for caution in deciding—(a) whether to accept the
evidence: (b) the weight to be given to the evidence’. The Court of Appeal said that
the trial judge ought to have considered whether a specific direction about the
historical nature of the prior complaints evidence was required. Assessment of
whether to give a warning, and, if so, its intensity, were matters for the discretion
of the judge.
Issue estoppel—Canada
Issue estoppel forms part of the doctrine of res judicata. Its purpose is to prevent
relitigation of an issue that has been decided on its merits by a court in other
proceedings between the same parties. In R v Humphrys [1976] AC 1 issue estoppel
was held to be unavailable in England. In R v Mahalingan 2008 SCC 63 the Canadian
Supreme Court refused to follow suit and expunge issue estoppel from Canadian
criminal law. Unusually, in Mahalingan, issue estoppel could only be applied to the
facts of the case retrospectively. The defendant had been tried for attempted
murder and convicted of aggravated assault. This conviction depended upon the
identification evidence of an eyewitness who, apart from identifying the
defendant, had testified that the defendant had telephoned him from prison and
asked him not to testify. Later, in separate proceedings, the defendant was tried
and acquitted of obstructing justice by making this call. When the assault
conviction was before the Court of Appeal for Ontario, the defendant persuaded a
majority of that court that the subsequent acquittal of obstructing justice had the

retrospective effect of rendering the testimony about the telephone call inadmis-
sible at his trial for attempted murder. All the members of the Supreme Court
disagreed with this holding: ‘The concern for finality, one of the principles which
underlies the doctrine of issue estoppel, is inconsistent with retroactive appli-
cation of issue estoppel’, per McLachlin CJ at [27]. On the further question whether
issue estoppel as a discrete concept should remain part of Canadian criminal law,
the court divided 5:3. The majority rejected the view of the minority that the
problem of abusive relitigation is adequately addressed in the criminal context by
other legal concepts and provisions.
McLachlin CJ, who delivered the majority opinion, said that issue estoppel serves
important goals in the criminal process: (1) fairness to the accused; (2) integrity
and coherence; and (3) finality and economy. These goals could not be achieved in
all circumstances without the continued availability to the defence of issue
estoppel. There are other existing remedies but, in her view, they do not cover all
the ground. The plea of autrefois acquit relates to the final order, not to underlying
issues in the Crown case: ‘the criminal law abhors not only inconsistent verdicts,
but inconsistent findings on specific issues’ (at [45]). Abuse of process has a high
proof threshold and is...

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