In a three-paragraph judgment the Supreme Court of Canada has held that “It was not open to the Court of Appeal to acquit the respondent on the basis of speculation about a possible explanation of his conduct that was flatly contradicted by his own testimony”: R v Grover [2007] SCC 51 (22 November 2007).
This superficially attractive proposition does not withstand scrutiny.
Nor does it accurately reflect the evidence in the case, as recorded in the Saskatchewan Court of Appeal majority judgment: (2006) SKCA 146 (15 December 2006).
First, the SCC’s proposition. This is an interpretation of the appeal provision, commonly found throughout the Commonwealth, which requires a conviction to be quashed if it is unreasonable or cannot be supported by the evidence (here, in the Canadian Criminal Code RSC 1985, s 686(1)(a)). At trial, if the trier of fact (here it was a judge-alone trial) rejects any part of the accused’s evidence, that part must be put aside, so that the adequacy of the case against the accused is judged on the evidence that the trier accepts. Juries are routinely directed to this effect when an accused has given evidence which the prosecution says should be rejected.
Only where the trier finds that the accused has lied, and where there is no rational explanation for that lie other than that it was told out of a consciousness of guilt, can the lie be taken as evidence that supports the prosecution case. These kinds of lies are very rare.
And so to the evidence. R v Grover was not a case where the accused’s testimony, if it was a lie, must have supported an inference of guilt. Mr Grover, a landlord of a residential property where there had been a fire, asked a tenant to sign a form certifying that the smoke alarm had been inspected before the fire. He was charged with attempting to pervert the course of justice by asking the tenant to do that. The critical issue was whether, when he asked the tenant to sign the form, he knew that the alarm had not been inspected. Part of the tenant’s evidence (she was a prosecution witness) was quoted in the Court of Appeal’s majority judgment, and this included the following:
“Q Was he insistent that you do it, or was he just asking you in a nice voice, just —
A Well, he mentioned a couple of times to sign it and, you know, because they had checked the smoke detectors, and I kept telling him not in my presence.
Q Did he seem to accept that?
A I thought so, yeah.
Q And what did he say about your name being on the lease?
A He said I could sign it because my name was on the lease, whether I was there or not when somebody checked the smoke detectors.”
Particularly important here is the tenant’s evidence that “…he mentioned a couple of times to sign it … because they had checked the smoke detectors, and I kept telling him not in my presence.”
Equally significant, on the description of the case given by the majority in the Court of Appeal, at para 12, is the following:
“The question before this Court is whether this evidence, in light of the findings of credibility of the trial judge, supports the finding that the appellant [Mr Grover] knew that no inspection had taken place on January 25, 2005. In my respectful view, it does not. Clearly, there is no direct evidence that the appellant knew this fact. The appellant did not admit to knowing it and Mr. Plamondon [the caretaker in charge of the premises] did not testify that he told the appellant. Despite an exceedingly lengthy cross-examination, the appellant was not cross-examined on this point.”
So is not clear that Mr Grover’s testimony “flatly contradicted” (the phrase used by the Supreme Court, above) the possible explanation for his lie.
The relevant conflict in the evidence was over whether Mr Grover had asked the tenant to sign the form when he saw her in hospital. His denial of that did not mean, in the majority’s view, para 13-14, that he knew the inspection had not taken place: “it is consistent with a belief that the inspection had taken place but that the tenant’s signature was missing from the inspection record—exactly what the appellant represented to the fire inspector…. It is reasonable to assume that he would consider it crucial that in this case the inspection records be in perfect order.”
If indeed he lied in his evidence about asking the tenant to sign the form, Mr Grover could have been trying to shield himself from an incorrect judicial conclusion that he must have known there had been no inspection of the smoke alarm, when in reality he had merely been trying to get the paperwork straightened out. The proper course for the court was to ignore the lie, and to consider what was the proper inference on the evidence it accepted. The Court of Appeal majority held that the circumstantial evidence did not support the conclusion of guilt to the standard of beyond reasonable doubt. By accepting the fallacy that had been stated by the dissenting judge in the Court below, the Supreme Court of Canada prevented itself from considering the evidence and determining whether it supported the verdict.
The New Zealand Court of Appeal last week delivered an important decision on the corresponding appeal provision of the Crimes Act 1961[NZ], s 385(1)(a): R v Munro [2007] NZCA 510 (16 November 2007). The Court unanimously quashed the appellant’s conviction as it could not be supported by the evidence, and entered an acquittal, in a lengthy joint judgment (Glazebrook, Chambers, Arnold and Wilson JJ) with which Hammond J largely agreed. In the course of considering the law in other jurisdictions, reference was made to the Canadian case R v Yebes [1987] 2 SCR 168, which was also cited by the Saskatchewan Court of Appeal in R v Grover. The joint judgment in the New Zealand Court of Appeal summarised the position, para 27, as follows:
“In Yebes the Supreme Court explained the obligations of an appellate court under this provision in the Criminal Code…. The appellate court must look beyond the question of whether there is some evidence to support the conviction. Rather, it must determine whether, on the whole of the evidence, the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered (at 430). It was recognised that, to some extent, this will require the court on appeal to re-examine and re-weigh the evidence and ascertain whether it is sufficient to justify the verdict.”
And further, in relation to R v Biniaris [2000] 1 SCR 381; (2000) 143 CCC(3d) 1, the Judges added, para 30,
“…Close scrutiny might reveal that the jury reached its verdict pursuant to an analytical flaw, or judicial experience about the need for special caution in evaluating certain types of evidence might lead an experienced appellate judge to conclude that in a given case the jury’s fact-finding process was flawed and thus the result was unreasonable….”
These statements of principle were held, para 42, to be applicable in New Zealand. It is to be hoped that the error in the Supreme Court of Canada’s dismissal of the appeal in R v Grover, is not.
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