Court of Appeal Decision of the Week

Browne v Dunn; Trial Fairness; Standard of Review

Case: R v Abdulle, 2016 ABCA 5 (CanLII)

Keywords: The Rule in Browne v Dunn (1893), 6 R 67 (HL); Trial Fairness; Armed Robbery

Synopsis:

The Appellant and his friend (referred to as “Abdi”) invite the complainants, Mr. Lu and Mr. Calcines, to a party. The complainants testify that, while walking together towards the party, they are threatened at knife point by the Appellant and Abdi, Mr. Calcines is punched in the face, and the complainants’ cell phones are taken.

The Appellant raised the following issues on appeal:

  1. The Trial Judge erred in applying the rule in Browne v Dunn to insignificant or minor details;
  2. The Trial Judge found a breach of the rule in Browne v Dunn without providing counsel an opportunity to address the issue – thereby compromising trial fairness.

Citing R v Schmaltz, 2015 ABCA 4 at para. 13 and R v Werkman, 2007 ABCA 130 at para. 3, the Court of Appeal found both the issue of trial fairness and application of the rule in Browne v Dunn were questions of law reviewable on the correctness standard. The Court was persuaded by the submission that the Trial Judge committed the errors; it is impossible to know whether the Trial Judge would have come to the same conclusions absent the error. As such, the conviction was set aside and the matter remitted for a new trial.

Importance:

Simply put, the rule in Browne v Dunn requires counsel put a matter to a witness where counsel intends to present contradictory evidence on the same matter through a later witness.

To better appreciate how this issue played out at trial, it is necessary to consider the similarities and differences between the testimony of the two complainants and the Appellant.

According to Mr. Lu, the Appellant and/or Abdi punched Mr. Calcines in the mouth, and took the complainants’ cell phones at knife point. Mr. Lu also remembers that, after the initial robbery, one of the two (as between Abdi and the Appellant) was holding the other back.

Mr. Calcines testified similarly. He stated he was threatened with a knife and punched in the face before the cell phones were taken. Like Mr. Lu, he was unable to confirm which of the two men punched him or which had taken his phone although he similarly recalled that, after the robbery, one of the two attackers was holding the other back.

At trial the Appellant also took the stand; confirmed he and Abdi had indeed invited the complainants to a party but added a few points Mr. Lu and Mr. Calcines neglected to mention.

First, he testified Abdi had asked the complainants if they knew where to get marijuana – a question the complainants apparently answered in the affirmative (even indicating they had a source). Second, that the complainants had been drinking alcohol (which the Appellant supplied from his backpack) before a heated argument erupted between Abdi and Calcines.

According to the Appellant, it was at this point that Abdi “flipped out”, punching Mr. Calcines and demanding the cell phones at knife point. The Appellant denied planning the robbery, stated he had not threatened or hit either of the two complainants and was, in fact, the one trying to hold Abdi back during the entire incident.

The Trial Judge found the failure to cross-examine Mr. Lu and Mr. Calcine with respect to the alcohol detail and the marijuana detail did not warrant a “strict” application of the rule in Browne v Dunn, yet he applied the remedy for breach of the rule –assessing the credibility of the Appellant in a manner reflecting the fact counsel did not give the complainants a chance to explain the contradiction.

With respect to trial fairness, the Court of Appeal found the Trial Judge did not raise the issue of whether counsel had cross-examined the complainants on the Appellant’s assertion that it was Abdi alone who was involved in the robberies.

Despite the fact this issue was not raised at trial, the Trial Judge treated this point as a breach of the rule, meaning he gave significantly less weight to the Appellant’s evidence. For the Court of Appeal, had the Trial Judge given defence counsel an opportunity to address the issue, counsel might have convinced the Trial Judge that the matter had been raised (that there was no breach of the rule in Browne v Dunn).

Coincidentally, the Court of Appeal appears to have found the Trial Judge himself ran afoul of the principle behind the rule – the failure to raise the point with defence counsel impacted trial fairness and led the Court of Appeal to order a new trial. The underlying reason? We cannot know whether the Trial Judge’s decision would have been affected by Counsel’s submission on the point as the matter had not been raised.

Counsel for the Respondent: Keith Joyce (Alberta Department of Justice & Solicitor General, Edmonton)

Counsel for the Appellant: Evan McIntyre (Pringle Chivers Sparks Teskey, Edmonton)

Posted: Wednesday, January 20, 2016