R. v. Bradshaw (R.D.N.),

R. v. Bradshaw (R.D.N.) (2015), 372 B.C.A.C. 77 (CA);

    640 W.A.C. 77

MLB headnote and full text

Temp. Cite: [2015] B.C.A.C. TBEd. MY.023

Regina (respondent) v. Robert David Nicholas Bradshaw (appellant)

(CA040718; 2015 BCCA 195)

Indexed As: R. v. Bradshaw (R.D.N.)

British Columbia Court of Appeal

Neilson, Bennett and Garson, JJ.A.

May 5, 2015.

Summary:

The accused was convicted by judge and jury of two counts of first degree murder. The accused appealed, asserting that the trial judge erred by admitting a videotaped re-enactment by a former co-accused who refused to testify at trial. In the re-enactment, the co-accused described the accused as the shooter in one of the murders and a participant in the other murder. Alternatively, the accused asserted that the judge erred by admitting the co-accused's previous statements as prior inconsistent statements, but not for the truth of their contents. In those statements, the co-accused identified himself as having killed the victims.

The British Columbia Court of Appeal allowed the appeal and ordered a new trial. The video re-enactment was hearsay evidence and lacked the circumstantial guarantee of trustworthiness to meet the threshold test of reliability.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities of undercover police officers, including any pseudonyms used by the officers, where required by a publication ban under ss. 486.5(1) and 486.5(9) of the Criminal Code.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - See paragraphs 19 to 41.

Cases Noticed:

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, refd to. [para. 20].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353, refd to. [para. 20].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 2000 SCC 40, refd to. [para. 23].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321, refd to. [para. 26].

R. v. Youvarajah (Y.) (2013), 447 N.R. 47; 308 O.A.C. 284; 2013 SCC 41, refd to. [para. 29].

Counsel:

R. Fowler, Q.C., and E. Purtzki, for the appellant;

M. Mereigh, for the respondent.

This appeal was heard at Vancouver, British Columbia, on December 2, 2014, by Neilson, Bennett and Garson, JJ.A., of the British Columbia Court of Appeal. Bennett, J.A., delivered the following reasons for judgment for the court on May 5, 2015.