Date: 19990528 Docket: CC971114 Registry: Vancouver IN THE SUPREME COURT OF BRITISH COLUMBIA Oral Ruling on Voir Dire The Honourable Mr. Justice Henderson May 28, 1999 HER MAJESTY THE QUEEN AGAINST SHANNON LEONARD MURRIN Counsel for the Crown: J. Wood, Q.C., P. Johnstone, D. Neave Counsel for the Accused: P. McMurray, P. Wilson INHERENT JURISDICTION BAN ON PUBLICATION ON ALL EVIDENCE AND SUBMISSIONS MADE IN THE ABSENCE OF THE JURY. NOT TO BE PUBLISHED OR BROADCAST BY MEDIA UNTIL TRIAL HAS ENDED [1] THE COURT: The accused seeks a ruling that an oral statement given by Alfred Nelson to RCMP Corporal Seversen on August 19, 1994 can be admitted in evidence as proof of its contents under the modern exception to the rule of hearsay created by the trilogy of cases reported as: R. v. Khan (1990), 59 C.C.C. (3d) 92 (S.C.C.); R v. Smith (1992), 75 C.C.C. (3d) 257 (S.C.C.); and R. v. KGB (1993), 79 C.C.C. (3d) 257 (S.C.C.). [2] Alfred Nelson testified at the preliminary hearing as a Crown witness. It is admitted that his evidence was taken in the presence of the accused, that the accused had a full opportunity to examine Mr. Nelson, and that Mr. Nelson is now dead. The Crown asks for an order permitting his evidence at the preliminary hearing to be placed before the jury pursuant to Criminal Code, s. 715(1). [3] Although all of the preconditions mentioned in the section have been met, I still have a discretion to exclude the evidence: R. v. Potvin (1989), 68 C.R. (3d) 193 (S.C.C.). [4] The accused, however, has not argued that the evidence should be excluded. I order that the Crown may place the evidence given by Mr. Nelson at the preliminary hearing before the jury as part of its case. [5] The deceased, Mindy Tran, was reported missing around 7:53 p.m. on August 17, 1994. She was last seen alive around 6:47 p.m. that same evening in the vicinity of a residence occupied by the accused. Her body was discovered in a nearby park in October 1994. [6] It appears clear that Mr. Murrin will be advancing a defence based upon alibi. [7] Early in the morning of August 18, RCMP Corporal Seversen interviewed Mr. Murrin and obtained some details of his alibi from him. Mr. Murrin was not clear on some of the details and he invited Corporal Seversen to check with friends of his who lived at 1170 Elwyn Road in Kelowna to verify that Murrin had been there around the time Mindy Tran went missing. [8] On August 19, 1994 at 6:50 p.m., Corporal Seversen attended at 1170 Elwyn Road to check out Mr. Murrin's alibi. He was speaking to three people in the kitchen of the residence when Alfred Nelson, who lived downstairs, walked up the stairs and asked what the group was talking about. Someone told Nelson that the discussion was about the disappearance of Mindy Tran and about Shannon Murrin. Murrin was identified as "Shanny". [9] At that point, Mr. Nelson volunteered without prompting that Murrin had been present at 1170 Elwyn Road at 7:00 p.m. on the night of Mindy Tran's disappearance. Mr. Nelson said he was capable of being precise about the time because his car had been stolen that day. He had phoned RCMP Constable Gleeson about getting his car back and had been told to phone her again at 7:00 p.m., as she started work at that time. This was a matter of some importance to Mr. Nelson so he phoned her back at the appointed hour. [10] Nelson told Corporal Seversen that while he was on the phone, Shannon Murrin walked into the house. Nelson told Corporal Seversen that he was unable to get hold of Constable Gleeson so he left a message for her to call him back. Nelson said that he placed his call at 6:55 p.m. The Crown has admitted as a fact that Mr. Nelson's call to Constable Gleeson was received at the detachment at 6:59 p.m., at which point Mr. Nelson left a message. [11] It is the Crown's theory that Mindy Tran entered the residence on Taylor Road in which Mr. Murrin was living around 6:47 p.m., at a time when Mr. Murrin was home alone. The Crown appears to be advancing the theory that Mr. Murrin killed her in the residence and transported her body to the nearby park in a suitcase, after which he went to the Elwyn Road address and joined the occupants there in searching for the missing girl. [12] If, as Mr. Nelson asserts, Shannon Murrin was at the Elwyn Road residence as early as 7:00 p.m., it appears unlikely that he could have caused Mindy Tran's death and disposed of her body in the short time before his arrival there. Thus, Mr. Nelson's evidence is of crucial importance. [13] Counsel have advised me that, although some of the residents of 1170 Elwyn Road will give alibi evidence which tends to support Mr. Murrin, they are not capable of the degree of precision about the time which Mr. Nelson displayed in his statement to Corporal Seversen. It would appear from the statements of counsel that Mr. Nelson is the most important of the alibi witnesses. [14] Corporal Seversen did not tape record Nelson's statement or write it down verbatim. He wrote the gist of it down in his notes and relied upon those to give his evidence. Corporal Seversen's evidence provides no reason to doubt the accuracy of his note taking. Corporal Seversen is an experienced RCMP investigator and he was aware as early as August 19th that he was probably investigating a homicide. [15] Mr. Nelson, who was in his late 60s at the time of the interview, appears to have been struggling with alcoholism for many years. However, Corporal Seversen said Nelson appeared sober during their five-minute discussion and gave no indication he had been consuming alcohol that day. [16] There is no suggestion that Alfred Nelson, on August 19th, had any bias for or against Mr. Murrin which would motivate Mr. Nelson to shade the facts one way or the other. [17] Mr. Nelson gave some other information to Corporal Seversen containing a significant degree of circumstantial detail. For example, he said he had a recollection of Murrin talking to a man called "C.J.". He recalled that C.J. was putting fluid into his lighter in the carport right outside Mr. Nelson's door. [18] By December 22, 1994, Mr. Murrin was the prime suspect in the murder of Mindy Tran. On that day, at 11:32 a.m., Corporal Seversen and Constable Holmes had a one-hour conversation with Mr. Nelson, which was tape recorded. There is no suggestion in the evidence that Mr. Nelson had taken any steps at all to preserve in writing his recollections which he had recounted to Corporal Seversen on August 19th. [19] The taped statement taken on December 22nd is confusing and contradictory. Corporal Seversen said that Mr. Nelson appeared sober while giving his statement and displayed no sign that he had been drinking. However, it is evident that the passage of time over the intervening three-month period diminished the acuity of Mr. Nelson's recollections to a considerable degree. [20] The first time Mr. Nelson was asked what time Murrin arrived at Elwyn Road on August 17th, he said, "Just shortly after 7:00 p.m. I don't know what time it was really, 7:30 maybe. Maybe he was there before." There was no reference by him at this point to having been on the telephone at 7:00 p.m. and having seen Murrin walk into the house. [21] Corporal Seversen then referred Mr. Nelson to the subject of his telephone call to Constable Gleeson. Nelson recalled telephoning her around 7:00 p.m. Seversen asked Nelson to describe what else happened at that time. Nelson said he saw Shannon Murrin outside the front of the house talking to Rob Holmes, another resident of the house. He said the door of the house was open and he could see straight out. [22] A little later Nelson said that he saw Murrin talking with Rob Holmes out in front "before 7:00." Still later, Seversen said to Nelson that Murrin himself recalled being at the house "after 7:00." Nelson replied that he was "sure" that it was before 7:00. He then went on, however, to say that Murrin had been there earlier in the day, around 4:15 or 4:20 p.m. Nelson said Murrin might have left and come back, but he was not positive of that. [23] Later still, Mr. Nelson said that Murrin may have been at the house more than twice on the day in question. He said the first would be around 4:15 p.m. He saw Murrin again around 7:30 or 7:45 p.m. riding off on the back of a motorcycle with Rob Holmes. [24] After some further questioning by Seversen, Nelson agreed with the proposition that the first time he saw Murrin after the 4:15 p.m. encounter was when the two men rode off on the motorcycle. He was then asked if he had seen Murrin at all when he was making his phone call, and the answer was, "no, it wasn't really when I made the phone call. I am not quite sure now." [25] In the result, the critical evidence upon which Mr. Murrin's alibi depends evaporated during the course of the December 22nd interview. This was not the result of any unfair or manipulative questioning by Corporal Seversen. Rather, it was a natural result of the difficulty of remembering the precise details of events which occurred three months earlier and appeared unimportant at the time. [26] Nelson gave his evidence at the preliminary hearing on May 13, 1997. Thus, he was being asked to recall events which took place almost three years earlier. He described seeing Mr. Murrin for the first time on August 17th. He said on this occasion that it was after 5:00 p.m. He described in evidence how he telephoned Constable Gleeson at 7:00 p.m. and said that Bob Holmes was outside with a couple of other people at the time. Mr. Nelson "thought" that one of them was Murrin but said, "I am not sure." He also described seeing Murrin and Holmes leave on the motorcycle to go looking for the missing girl. He made no mention of Murrin coming into the house. [27] In cross-examination, Mr. Nelson's prior statements were put to him. At the outset, he agreed readily that he had told Corporal Seversen at their first meeting that he had seen Murrin for the second time just before 7:00 p.m. and he knew that because he recalled having to phone Constable Gleeson at that time. However, when it was put to him that Murrin was upstairs in the house at the time of the phone call, Nelson denied that. He said he had seen some people out front and he "figured" one of them was Murrin but he was "not positive." Nelson denied saying to Seversen that Murrin had walked into the residence. Nelson said he told Seversen that "somebody" had walked in while Nelson was on the telephone. [28] When questioned about his statement to the police on December 22nd to the effect that he had seen Murrin talking to Rob out front before 7:00, he agreed that it was before 7:00. He then said it was "quite a bit before 7:00." He reiterated that he wasn't sure whether Shannon Murrin had been there or not around the time of the phone call to Constable Gleeson. [29] Mr. Nelson showed no indication that he had reviewed his statement to the police before giving his evidence. When pressed, he said repeatedly at the preliminary hearing that he was not sure if he had seen Murrin outside the house around 7:00 p.m. or not. [30] The cross-examination then returned to the subject of the August 19th statement. At this point, Mr. Nelson said that Corporal Seversen had written down incorrectly what Nelson had said. Nelson had only said that he "figured" the person he saw outside was Murrin. Nelson went on to explain that on August 19th, immediately after he told the police he thought Murrin had been there at 7:00 p.m., he started to think he might be wrong "because I couldn't see -- see who it was." No explanation was given as to why, if that were the case, he had not advised Seversen to correct what Nelson had said earlier. [31] In summary, Nelson's evidence at the preliminary hearing amounted to a repudiation of what he said or is reported to have said to Seversen on August 19th, and an adoption of the latter part of his statement on December 22nd. Taken as a whole, Nelson's evidence is somewhat confused and contradictory. [32] In my view, when evidence is read in under s. 715(1) of the Criminal Code, the opposing party should be left, in a procedural sense and as far as possible, in the same position as if the witness had attended at trial and given the evidence orally. If Mr. Nelson were still alive and were to give the same evidence in this trial that he gave at the preliminary hearing, the accused would be permitted to prove, through the evidence of Corporal Seversen, what Mr. Nelson said on August 19, 1994. Section 11 of the Canada Evidence Act is the governing provision. Where the witness "does not distinctly admit" that he made the prior inconsistent statement, proof may be given that he did in fact make it. The accused is, therefore, at liberty to adduce that evidence from Corporal Seversen on this trial. [33] In such circumstances, the standard warning to the jury includes a caution that the prior inconsistent statement, if the jury find it to have been made at all, is not evidence of the truth of its contents but can be used by the jury only in assessing the credibility of Mr. Nelson. The standard instruction goes on to advise the jury that, if they find Mr. Nelson did adopt some part of the prior statement in his oral evidence, they may treat the adopted part as proof of the truth of its contents. Although the question of whether or not there has been an adoption is for the trier of fact, it is reasonable to expect, on the present state of the evidence, that the jury will not find Mr. Nelson to have adopted his August 19th statement in its critical particulars. [34] The issue, then, on this voir dire is whether the jury should be told that Alfred Nelson's statement to Corporal Seversen on August 19th can be treated as proof of the truth of its contents and weighed together with his evidence at the preliminary hearing. That would permit the jury to find that Alfred Nelson did, in fact, see Shannon Murrin walk into the house at 7:00 p.m., provided they first find that Seversen recorded what Nelson said accurately and that Nelson was recounting an accurate version of what he had observed 48 hours earlier. It would, of course, be open to the jury to find that Mr. Nelson's evidence is to be preferred and to conclude that Seversen recorded the August 19th conversation incorrectly. Without the requested jury instruction, the most the jury could conclude from Nelson's evidence at the preliminary hearing is that around 7:00 p.m. Nelson saw a man outside whom he thought (or figured might be) Mr. Murrin. [35] I must consider the dual issues of necessity and unreliability. [36] The Crown has conceded that necessity has been established because Mr. Nelson is dead. That fact, however, does not suffice in and of itself to establish necessity. Evidence from Nelson is available under Criminal Code,s. 15. This is not a case like R. v. Hawkins (1996), 111 C.C.C. (3d) 129 (S.C.C.), where the preliminary hearing evidence of the unavailable witness could not itself be read into evidence. If necessity were to depend solely on the fact of death then, in every case where evidence is read in under s. 715 because of the death of the witness, the prior statements of that witness could also become evidence of the truth of their contents. That is an undesirable result, as it places the party adducing the evidence in a better position than if the witness were alive. [37] On the other hand, it must be remembered that necessity has to do with the availability of evidence "of equal value." For example, in R. v. Eisenhauer (1997), 123 C.C.C. (3d) 37 (.N.S.C.A.), statements by a Crown witness to the police tended to support the accused's defence. At trial, she failed to repeat these assertions and said she had no recollection of having made the statements. They were admitted under the principled exception to the hearsay rule. [38] In the present case, evidence of equal value to the accused is similarly unavailable. Nelson's equivocal evidence at the preliminary hearing has substantially less value to Mr. Murrin than his firm assertion to Corporal Seversen on August 19th, provided that Seversen's evidence of what was said is accepted. Nelson is now deceased, so there is no possibility that the accused, through cross-examination at trial, will be able to lead Nelson to a point where he adopts what he said to Seversen. [39] In my view, these facts do establish that the concession by the Crown was well-advised. I find necessity has been made out. [40] I turn to the question of reliability. [41] First, it is necessary to identify the reliability concern which arises here. In most of the reported cases, the concern is that the witness may not, in the prior statement, have been attempting to tell the truth. No such concern arises in the present case. Nelson had no motive to lie on August 19, 1994. [42] There are, however, two possible sources of error. First, Nelson might have said to Seversen that he had seen Murrin inside the house at 7:00 p.m. even though he had not. Second, Seversen might have quoted Nelson as having said that, although Nelson actually said he had seen "someone", not necessarily the accused, enter the house. [43] Nelson's prior statement on August 19 was not made under oath. He can no longer be cross-examined on it. The jury have no way of observing his demeanour at the time he made that statement. Thus, the classic indicia of reliability are absent. That is not an absolute bar to admissibility. Examples of cases where these indicia of reliability were absent but the evidence was admitted include Khan, supra, R. v. F.J.U. (1995), 101 C.C.C. (3d) 97, (S.C.C.), and R. v. Rockie (1996), 110 C.C.C. (3d) 481 (S.C.C.). Smith, supra, and R. v. Folland (1998), 132 C.C.C. (3d) 14 (Ont.C.A.) also contain obiter dicta to the same effect. [44] As to the possibility that Nelson could have said on August 19th that he had seen Murrin inside the house but have been mistaken, I note that Nelson was sober, he volunteered the information, and he was recalling an event that occurred just 48 hours earlier. He knew he was speaking to a police officer about a very important matter, the disappearance of a young girl. He provided a significant quantity of circumstantial detail while recounting his recollections. Some of it has been corroborated independently. [45] I consider the cumulative effect of these factors to establish a threshold level of reliability. Whether they suffice to cause the jury to accept Nelson's original statement in preference to his subsequent evidence is for the jury itself to decide. [46] As to the possibility that Nelson never told Seversen that he had seen Murrin inside the house, it must be remembered that Seversen is an experienced police officer who has been trained to take notes accurately. Corporal Seversen was well aware of the importance of what Nelson said as he had gone to Elwyn Road for the express purpose of confirming Murrin's alibi. Nelson's remarks would have assumed instant importance in Seversen's mind. Corporal Seversen knew he was probably investigating a homicide. He took notes at the time of his conversation and refreshed his memory from them in court. There was nothing about his direct or cross-examination which cast doubt on the accuracy of his note-taking. [47] Again, I consider the cumulative effect of these factors sufficient to establish a threshold level of reliability. [48] I find the evidence of what Alfred Nelson said on August 19th admissible as evidence of the truth of its contents. [49] The Crown has asked that, if I find the August 19th statement admissible under the "K.G.B." principle, the December 22nd taped statement be entered in evidence also. In effect, the Crown takes issue with the "evidence" of its own witness, given through the medium of the August 19th statement. It wishes to adduce a prior statement which is inconsistent with that piece of evidence but consistent with the sworn testimony given at the preliminary hearing. [50] There is a broad analogy here to the position the Crown would be in if Nelson were alive and were to adopt as true what he said to Corporal Seversen. At that point, the court could grant leave to the Crown to cross-examine on the December 22nd statement as a prior inconsistent statement under s. 9(2) of the Canada Evidence Act. As nearly as possible, the Crown should be left in the same procedural position now that it would be in if Nelson were alive. In my view, justice requires that the December 22nd statement also be placed before the jury as a prior inconsistent statement. "A.G. Henderson, J." The Honourable Mr. Justice A.G. Henderson