Fairness On Cross-Examination

Well, first of all, the fact pattern, like many of these murder cases, is never a good state of affairs, given where they clearly ended up at the end of things.

But this was a case involving murder or charge of murder conviction for second degree murder of a woman who was killed by strangulation was the forensic evidence.

There was also a charge of doing an indignity to human remains, which is also not a good fact pattern.

That's a separate offense, by the way.

And in this case, the accused pled guilty to that, given the fact that the body, I think, had been cut into eight pieces, and he had made a statement about ordering some lie to dispose of the body, which I think would squarely tick off those boxes.

The lie thing, by the way, and maybe this is the only kind of... dark humor that criminal lawyers would get to enjoy.

But there was a lie as a substance that can be used to dispose of bodies.

And there was a local, I guess it increases the rate of, you know, they would be consumed if buried.

There's a local case, actually, from a number of years ago.

I had no involvement with it.

But the accused in that case, unfortunately, mistook lime for lye and used the latter lime, which apparently is a preservative for bodies.

So anyways, in this case, the fellow ordered lye.

So he, at the beginning of the trial, he pled guilty to the indignity to the human body, but not guilty to the... murder count, and he eventually wound up testifying, and he provided in his evidence an explanation for how the death occurred, and his explanation included him saying that he was engaged in consensual sexual activity with the deceased, and that she had died by accident in the course of some of the activity they were involved in.

Now, part of the challenge for him was that the forensic evidence from the forensic pathologist is that it would take a significant period of time to asphyxiate somebody such that they would die.

And so this fellow's explanation for what went on, he claimed that he was intoxicated and his memory only had bits and pieces and he couldn't remember exactly how that transpired.

That's part of how he presented his story.

Hmm.

Now, he was cross-examined by the Crown, and I should say this is a trial which was judge alone, which is now possible in murder cases if both the Crown and the defense agree.

So it was a judge alone murder trial, and his explanation was that he had consumed alcohol and some unknown drug, and that that must have impaired his memory about how exactly it is he wound up accidentally killing this woman.

And the Crown cross-examined him about various things, sort of challenging his truthfulness and his story, but did not, apparently, in the course of an otherwise extensive cross-examination, suggest to him that he was lying about being drunk or impaired by drugs.

And the argument about that, and this was one of the key points on this appeal, comes from this case called Brown and Dunn.

which originally was a civil case, British one, but the law has been incorporated into the law in Canada and it applies to criminal cases as well.

And that Brown and Dunn principle stands for the proposition that a lawyer on the other side, if they're going to be suggesting some other version of events or arguing in cross-examination that some other combination of things happened, there would be some obligation to put that to the person in cross-examination, to challenge them with whatever theory they are going to be putting to the judge or arguing happened.

so that the person has an opportunity to respond to it.

It's sort of the idea of a matter of fairness there, right? If you're alleging that the, I don't know, let's say the key witness wasn't in the room and in fact was standing outside with their glasses off, right? If that's what your submission is going to be, you would have an obligation as a lawyer to put that to the person when you're cross-examining them, right? Hey, I suggest to you you weren't even in the bank when the robbery occurred