



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Murray, 2013 ONCA 178

DATE: 20130325

DOCKET: C52695

Rosenberg, Juriansz and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jeffrey Murray

Appellant

Dale Ives, for the appellant

Grace Choi, for the respondent

Heard: March 4, 2013

On appeal from the conviction entered on September 19,
    2008 by Justice D.A. Harris of the Ontario Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

The appellant was convicted of assault with a weapon, uttering threats,
    and forcible confinement, in a domestic setting. The complainant was his
    fiancée who lived with him. The complainant deliberately failed to attend court
    for his trial. A videotaped
K.G.B.
statement she had given to the
    police was admitted at trial and was the main evidence against him. He appeals
    on the basis that he never had the opportunity to cross-examine her.

[2]

In order to succeed, the appellant must establish that the trial judge
    erred by finding the hearsay statement reasonably necessary, and sufficiently
    reliable to be admitted despite the lack of cross-examination.

[3]

The events for which the appellant was charged occurred on December 31,
    2007 and January 1, 2008. On January 4, 2008, the complainant provided a sworn
K.G.B.
statement to the police.

[4]

The matter was first set for a trial to begin on March 6, 2008, but the
    Crown applied for an adjournment. The complainant was not in court and the
    police had not yet personally served her with a subpoena. The police had
    information that after the events, she was staying at a brothers home in
    London. The brother indicated to the police that the complainant had gone to
    stay with her mother in Sault Ste. Marie, and that she was no longer willing to
    testify in court. On February 29, 2008, a detective had called the mothers
    house. Another brother advised he could not put the police in touch with the
    complainant, and stated she would go even further into hiding if she knew the
    police were trying to contact her. The police couriered a subpoena to the Sault
    Ste. Marie police to serve upon the complainant.

[5]

Also in support of its request for an adjournment, the Crown called a
    witness from the Victim Witness Assistance Program. She testified that the
    complainant wanted the charges against the appellant dropped. As a result, the
    witness arranged an appointment for some time in mid-February for the
    complainant to meet with the Crown. The witness left several messages for the complainant
    but was not able to get in touch with her. On March 6, 2008, before court, the
    witness spoke with the complainants mother who told her that she did not know
    the complainants location and that she believed the complainant would not
    attend court.

[6]

The appellant called his mother who identified nine emails from the complainant.
    These indicated that the complainant still loved the appellant and would not
    attend court on the trial date. They also suggested that the complainant had
    been communicating with the appellant and had visited him at the jail. In a
    typed attachment to one of the emails, the complainant had recanted her
K.G.B.
statement. The appellants mother did not know where the complainant was.

[7]

Appellants counsel consented to a short adjournment to March 18, 2008,
    so that the Crown could take further steps to secure the complainants
    attendance at trial.

[8]

On March 18, 2008, the Crown was no closer to having the complainant
    attend at trial. The Crown applied to have the complainants oral statements to
    the police officer and her videotaped
K.G.B.
statement admitted as
    evidence. The trial judges admitted the K.G.B. statement but refused to admit
    the oral statements the complainant made to the police officer.

[9]

The Sault Ste. Marie police substitutionally served the complainant by
    leaving a copy of the subpoena at her mothers home on March 3, 2008. A
    detective was in touch with the complainants mother in Sault Ste. Marie on
    March 7, 2008. The mother advised that the complainant had gone into hiding,
    did not want to be subpoenaed or attend court and the police were not going to
    find her by calling the mothers house. On March 14, 2008, the police asked the
    detention center to contact them if the complainant visited the appellant.

[10]

In
    the
K.G.B.
statement the complainant described a prolonged altercation
    that was consistent with injuries evident in photographs taken. She described how
    she was beaten with a rope, and the threats the appellant had made to her and
    members of her family. Photographs taken by the police showed numerous bruises
    on the complainants legs, arms and back, and a dark bruise on her right eye.
    The front door of the residence that the appellant and the complainant shared
    showed damage consistent with it being kicked in as the complainant described.
    In the residence, the police found an undated and unsigned piece of cardboard
    on which were written the words Never meant to hurt you sorry baby xoxoxo.

[11]

We
    see no error in the trial judges finding that the necessity requirement was
    satisfied. As he observed, the complainant had made it clear that she was
    unwilling to testify against the appellant, and that she would continue to hide
    from the police in order to ensure that she could not be compelled to do so.
    Her intention to not incriminate the appellant was resolute. The trial judge
    commented that she had indicated in her emails she would do anything in her
    power to make things go well for the appellant. He found that her statement
    comprised the only evidence that the Crown could put forward in its attempt to
    prove the charges against the appellant. This latter finding shows that the
    trial judge recognized that necessity was not based on unavailability of the
    witness but on the unavailability of the evidence in her
K.G.B.
statement. Even if the complainants attendance in court were compelled, her
K.G.B.
statement would be the only evidence the Crown could put forward.

[12]

The
    trial judge found that the statement was sufficiently reliable to overcome the
    lack of cross-examination. He reasoned that there was an accurate, sworn and
    warned record of what was said; there was no reason for the complainant to make
    the allegations up; and the statement was given only a few days after the event
    so there were no memory problems. Further, the complainants description of
    what occurred was consistent with her injuries seen in the photographs and the
    damage to the front door, her account was made without prompting and she was
    careful not to overstate her allegations. If the statement were not true it
    could be assumed she would testify under oath that she had not been assaulted.

[13]

In
    summary, the trial judges conclusions regarding both the statements necessity
    and reliability were reasonably supported by the evidence.

[14]

The
    appeal is dismissed.

M. Rosenberg J.A.

R.G. Juriansz J.A.

Gloria
    J. Epstein J.A.


