R. v. Buckle, 1949 CanLII 226 (BC CA)

See R. v. Buckle below.

R. v. Buckle, 1949 CanLII 226 (BC CA)

    Date:

    1949-03-30

    Other citations:

                [1949] 3 DLR 418;

                  [1949] 1 WWR 833;

                  7 CR 485;

                  94 CCC 84

       

    Citation:

     R. v. Buckle, 1949 CanLII 226 (BC CA), , retrieved on 2018-05-29



           



   
       
       
   

   

       

           

       

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   Cited by 15 documents

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REX v. BUCKLE. British Columbia Court of Appeal, Sloan C.J.B.C., Robertson and Sidney Smith JJ.A. March 30, 1949. T. F. Hurley and N. Mussallem, for appellant. Hamilton Read, for the Crown, respondent. SLOAN C.J.B.C.: I have had the advantage of reading the reasons for judgment of my brother Robertson, and as he has canvassed the facts, there is no need for me to deal therewith. I regret however that, with great respect, I am unable to agree with him in the result. The jurisdiction of this Court to admit fresh evidence in a criminal case is to be found in s. 1021 of the Criminal Code, and that power may be exercised if the Court "thinks it necessary or expedient in the interest of justice" so to do. This Court held in R. v. Martin [1945] 1 D.L.R. 128 at p. 131, 82 Can. C.C. 311 at p. 314, 60 B.C.R. 554 at p. 558, approving the language of Martin J.A. in R. v. Cumyow, [1926] 1 D.L.R. 623 at p. 627, 45 Can. C.C. 172 at p. 177, 36 B.C.R. 435 at p. 440, that it was necessary or expedient in the interests of justice to admit fresh evidence and direct a new trial when that evidence, if believed, "might substantially sway the [trial Court] one way or the other". On the facts of this case, which depend in the result to so large degree upon the credibility of the complainant, it is my opinion that the evidence of Nickorak, if believed, "might reasonably induce the jury ... to change its view in regard to the guilt of the accused", to quote again Martin J.A., in the Cumyow case, supra, at p. 627 D.L.R., p. 177 Can. C.C., p. 440 B.C.R. In order to induce the jury to change its view of his guilt, the appellant, of course, need only advance his case to the stage of reasonable doubt. His obligation on this motion is no higher : R. v. Haskins, [1929] 1 D.L.R. 282, 50 Can. C.C. 412, 35 O.W.N. 109. In R. v. Deacon (No. 2) (1947), 88 Can. C.C. 308, 55 Man. R. 95, Bergman J.A., in delivering the judgment of the majority of the Manitoba Court of Appeal, seems to hold that a new trial ought not to be granted in criminal cases unless the newly-discovered evidence is "practically conclusive". In support of this view he cites and relies upon the reasoning in civil cases including a judgment of the Supreme Court of Canada in Varette v. Sainsbury, [1928], 1 D.L.R. 273 at p. 276, S.C.R. 72 at p. 76. If that principle is to be applied to this case, then I must concede that the evidence of Nickorak, even if believed, could not be said to be "practically conclusive", and in consequence this motion must fail. On the other hand, while not "prac-tically conclusive", it is evidence which, if believed, might, when weighed in the light of all the facts and circumstances of this case, create in the minds of the jury a reasonable doubt in regard to the guilt of the accused. In my opinion the rule to be applied in criminal cases in rela- tion to the introduction of fresh evidence and consequential relief which may be granted by the Court, is wider in its discretionary scope than that applied by the Court in civil appeals. If the newly-discovered evidence is in its nature conclusive, then the Court of Appeal, in both civil and criminal cases, may itself finally deal with the matter. See, e.g., O'Halloran J.A. in R. v. Feeny [1947] 1 D.L.R. 392 at pp. 396 et seq., 86 Can. C.C. 429 at pp. 434 et seq., 63 B.C.R. 131 at pp. 136 et seq. If, on the other hand, in a criminal case, the new evidence does not exert such a compelling influence, but is however of sufficient strength that it might reasonably affect the verdict of a jury, then, in my opinion, the Court may admit that evidence and direct a new trial, so that such evidence might be added to the scale and weighed by the trial tribunal in the light of all the facts. I am unable to support this viewpoint with any authority wherein the distinction I seek to make is directly established. It would appear not to have been argued in the Deacon (No. 2) case, supra. The English decisions are not of much assistance because of the limited jurisdiction of the Court of Criminal Appeal, which lacks the authority to grant a new trial. I feel fortified however by the basic principle of the criminal law expressed in the phrase "reasonable doubt". While - it is manifest from the decisions in civil cases, a successful litigant should not be divested of his judgment by the discovery of new evidence unless that evidence is of a cogent and compelling character, in my view it is equally true and of more vital importance in the administration of public justice, that a convicted man should not be denied the right to a new trial when he discovers, after his trial, fresh evidence, which, if believed, and while not conclusive, might still raise a reasonable doubt as to his guilt. The Crown is not in the position of a successful litigant with a vested right in a conviction. In consequence I would adhere to the judgments of this Court and grant the motion to admit the evidence of Nickorak, quash the conviction, and direct a new trial. ROBERTSON J.A. (dissenting) : — The accused applies for special leave that further evidence be admitted under the circumstances to be later referred to. In October, 1948, the accused was convicted of having raped one B.L.S. on September 8, 1948. The latter said that in the early morning of September 8, 1948, when she had just got inside the gate of the premises, 1287 Davie St., where she and her mother lived, the accused who was a complete stranger to her, accosted her and after some conversation, dragged her into some rose bushes and there committed the ©f- fence. She says she screamed "mother" several times, and also "Mr. Pike", the name of the proprietor of the said premises. She bit his left cheek. Her cries for help awakened a lady who was sleeping in a house directly opposite 1287 Davie St. This lady said the cries came from the point where it is alleged the offence took place. Her cries were also heard by three taxi men who were at 1207 Davie St., and who immediately proceeded to the complainant's residence, where they saw a man leaving the premises, and a woman. They were not able to identify either of them. Shortly afterwards two policemen stopped the accused and questioned him. Both the appellant's knees were stained or wet and covered with mud; his shoes and his hands were also covered with mud. He was perspiring very freely. He had a very pronounced mark or welt like a bite on his left cheek and a scratch over one ear. When asked where he had been the accused said that he had been with his girl friend down at Eng-lish Bay and back to the house where she lived, and he had been wrestling around with her on the grass, trying to have intercourse with her, but she would not let him. An examination of the place where the alleged offence took place showed that the ground was "torn and marked with footprints, the grass was actually torn as if someone had taken their shoes and made indentations in the grass; also in this area around the rose bush there were indentations—footprints. The ground was torn up, yes,—not a great deal—as if somebody had been struggling on the grassy area." The accused stated he had met the complainant quite a long time before the alleged offence, had taken her to English Bay, and on the way home certain familiarities had taken place and that at her residence, in the place which she described, intercourse had taken place with her consent. The Crown's case was a very strong one against the accused. The jury accepted her evidence. The further evidence sought to be introduced consists, in part, of the evidence of three persons as to certain things which took place long after the conviction. The Court allowed them to be called, reserving the question as to whether or not the evidence would be admitted. These witnesses, Nickorak and Petcoff, and a woman Napper, swore that on the night of December 11, 1948, they met the complainant who was a complete stranger to them, in a beer parlour in Vancouver. Later they proceeded to an hotel in North Vancouver, where the two men resided; that the two women crawled in a back window of the hotel and all four went to Petcoff's bedroom; that later the complainant, with Nickorak, retired to his bedroom; and later on, Nickorak says he took her home, and in front of her house a conversation took place in which she said : "I am going to kill myself. Buckle should not have gone to gaol." The other evidence tendered was that of Nickorak, Petcoff and a policeman Crawford. Nickorak and Petcoff said that on December 12, 1948, they took the complainant to a house where a party was being held: Crawford said he saw the complainant at this house with these two men. The complainant was called, and denied everything that these four witnesses had said. She said she did not know any of them and had never been with them as alleged or at all. As to the evidence of what took place at the hotel in North Vancouver and at the house, it seems to me that if the plaintiff on cross-examination denied having been at the hotel and house and knowing the witnesses mentioned no evidence could be led in rebuttal. As these incidents were not relevant to the issue and would only go to credit, her answers would have to be accepted. The statement made to Nickorak however is quite different. If a new trial were to be had, she could be asked as to this, and if she denied it, Nickorak could be called to contradict her. As Nickorak says they were alone when the alleged statement was made, it would be his oath against hers. A difficulty arises as to the rule to be applied in connection with the application to admit this evidence. In R. v. Vyé (1925), 44 Can. C.C. 249, 36 B.C.R. 200, an application was made to introduce the evidence of a conversation with the complainant some time after the trial at which the accused was convicted. The statement was a complete contradiction of an important part of her evidence at the trial. As the Court were evenly divided, the application was refused. In R. v. Cumyow, [1926] 1 D.L.R. 623, 45 Can. C.C. 172, 36 B.C.R. 435, an application was made by the accused to adjourn the hearing of an appeal because he had reasonable expectations to believe, in the circumstances set out in the material, that before the next sittings of the Court he would have further evidence which would materially affect his guilt or innocence. Chief Justice Macdonald said at p. 625 D.L.R., p. 175 Can. C.C., p. 438 B.C.R.: "The Court of Appeal Act ... provides that the Court may admit fresh evidence, but the Courts have affirmed by a long course of decisions and this Court has reaffirmed those decisions many times to my knowledge, that there are two things essential to the admission of new evidence. "I will put it this way: If evidence is discovered after the trial two things are necessary : (1) It is necessary to show that all due diligence was taken to have that evidence at the trial, and (2) the new evidence must .be such as to be practically decisive of the case." (The italics are mine.) Martin J.A. (afterwards C.J.B.C.) in his dissenting judgment, said at p. 627 D.L.R., p. 177 Can. C.C. p. 440 B.C.R., that if the proposed new evidence "might substantially sway the tribunal below one way or the other", then the Court would not be discharging its duty if it failed to give the prisoner the benefit of that. This of course was where the proposed new evidence could not have been discovered by the accused prior to the trial if he had been diligent. This view was followed by this Court in R. v. Martin, [1945] 1 D.L.R. 128, 82 Can. C.C. 311, 60 B.C.R. 554. Unfortunately, when considering this appeal our attention was not drawn to the decision of the Supreme Court of Canada in Varette v. Sains-bury, [1928], 1 D.L.R. 273, S.C.R. 72, decided three years after R. v. Cumyow, supra, in which Rinfret J. (as he then was), delivering the judgment of the Court, said at p. 276 D.L.R., p. 76 S.C.R.: "On an application for a new trial on the ground that new evidence has been discovered since the trial, we take the rule to be well established that a new trial should be ordered only where the new evidence proposed- to be adduced could not have been obtained by reasonable diligence before the trial and the new evidence is such that, if adduced, it would be practically conclusive. (Young v. Kershaw (1899) , 16 Times L.R. 52, at pp. 53-4.) " The question to be decided is whether this rule is to be applied in criminal appeals when it is sought to adduce fresh evidence. Varette's case was followed in a criminal case by the Mani-toba Court of Appeal. See R. v. Deacon (No. 2), 88 Can. C.C. 308 at p. 311, 55 Man. R. 95, an appeal in which it was sought to introduce fresh evidence. On appeal to the Supreme Court of Canada, [1947], 3 D.L.R. 772, S.C.R. 531, 89 Can. C.C. 1, a new trial was ordered. No mention was made of the application. In applications made under the Juvenile Delinquents Act, Varette's case was applied by Bigelow J. in R. v. Schwanbeck, [1931] 3 D.L.R. 745, 56 Can. C.C. 94; and by Macfarlane J. in R. v. Bawa Singh (1949), 93 Can. C.C. 193. In Dean v. Brown, [1909] 2 K.B. 573 at p. 587, Farwell L.J. said: "Those principles have been laid down by this Court in Young v. Kershaw, 81 L.T. 531, in accordance with earlier authorities and are binding on us. In the present case the county court judge has disregarded those principles and has granted a new trial on affidavits which shew at the outside that there will be oath against oath on a new trial—and that is clearly not enough—which shew nothing in the nature of surprise, fraud, or conspiracy." On appeal, [1910] A.C. 373, Lord Loreburn L.C. in his speech, stated he agreed with the judgment of Farwell L.J. quoted above, commencing with the words "in the present case" (p. 375). Ie further said at p. 374: "When a litigant has obtained a judgment in a Court of justice, whether it be a county court or one of the High Courts, he is by law entitled not to be deprived of that judgment without very solid grounds; and where (as in this case) the ground is the alleged discovery of new evidence, it must at least be such as is presumably to be believed, and if believed would be conclusive." The other learned Law Lords, except Lord Shaw of Dun-fermline, agreed with the Lord Chancellor. Lord Shaw did not see his way "to go the whole length of the proposition," the Lord Chancellor had proposed "to the effect that the res noviter veniens must, if believed, be conclusive". R. v. Copestake, [1927] 1 K.B. 468, is a case in which a bast-ardy order had been made against the appellant who sought, on the appeal leave to adduce fresh evidence, to show that as the child was a full time child at birth, under the circumstances he could not have been the father. The application was apparently made under the Criminal Justice Administration Act, 1914. At p. 474 Lord Hanworth M.R. referred to what Lord Loreburn L.C. had said, supra; and then said: "That statement was not accepted by Lord Shaw, but the other learned Lords agreed with the Lord Chancellor, and the result of it would be that only such fresh evidence could be produced as would satisfy those conditions." Scrutton L.J. thought that the Court of Appeal had not got so far as the full extent of Lord Loreburn's dictum in Brown v. Dean, that the new evidence must be of such a character that it is "presumably to be believed, and if believed would be conclusive". He thought that the Court had clearly decided that the evidence must be of such weight as, if believed, would have an important influence on the result. Romer J. did not find it necessary to • express any opinion on the question of fresh evidence. Code s. 1021(1) says that for the purposes of an appeal the Court of Appeal may, if it thinks it necessary or expedient in the interests of justice, exercise in relation to the proceedings of the Court of Appeal, inter alia, any other powers which mas for the time being be exercised by the Court of Appeal on appeals in Civil matters. This introduces the power of this Court under Court of Appeal Rule 5, viz., "with full discretionary power to receive further evidence" with the safeguard such further evidence "shall be admitted on special grounds only, and not without special leave of the Court". In R. v. Comyow, [1926] 1 D.L.R. at p. 625, 45 Can. C.C. at p. 175, 36 B.C.R. at p. 438, Macdonald C.J.A. said: "As I pointed out a few moments ago, we have exactly the same discretion in civil cases as is given by the statutes of 1923 [which is s. 1021(1) (e) ] in criminal cases." In R. v. Vye (1925), 44 Can. C.C. 249, 36 B.C.R. 200, Martin J.A. at p. 251 Can. C.C., p. 205 B.C.R., and McPhillips J.A. at pp. 260-1 Can. C.C., p. 215 B.C.R., indicated that the powers of the Court of Appeal in criminal cases were the same as in civil cases with respect to the admission of further evidence. See also R. v. Robinson, [1917] 2 K.B. 108, in which the Court of Criminal Appeal held, under practically the same statutory authority, that it had the same powers as that possessed by the Court of Appeal in civil matters. As this Court has the same powers in criminal appeals with reference to the admission of further evidence as it has in civil appeals, these powers are subject to the same restrictions as in civil appeals. Holding these views, with deference to all other views, I think I am bound to follow the decision of the Supreme Court of Can-ada in Varette's case, notwithstanding the decision in R. v. Martin; and therefore the evidence should not be admitted unless it is shown to come within the Rule. As to this, it is to be noticed that in Young v. Kershaw (1899), 81 L.T. 531 (which was followed in Varette's case) Smith L.J., stated at p. 532: "Further, it would only amount to oath against oath, and that is not enough," as was pointed out in Anderson v. Titmas (1877), 36 L.T. 711, by Huddleston, B. and then proceeded to say that such evidence if adduced would not be conclusive. Therefore the case did not come within the Rule as to granting a new trial. The other Lord Justices agreed. Farwell L.J. said in Dean v. Brown, [1909] 2 K.B. at p. 587, that to warrant a new trial affidavits showing that at the outside there would be oath against oath was not enough. Lord Loreburn L.C. on appeal ( [1910] A.C. 375) said he agreed with the judgment of Farwell L.J. on this point. If the further evidence were admitted in this case it would be the oath of Nickorak against that of the complainant. Therefore, the further evidence would not be conclusive. The application should be refused. The Minister of Justice of Canada may order a new trial. See Code s. 1022. It was conceded by counsel for the appellant that if his application failed, the appeal could not succeed. Accordingly Y am of the opinion the appeal should be dismissed. SIDNEY SMITH J.A. I agree with the Chief Justice. Conviction quashed; new trial ordered.