Case information

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Criminal Law (Non Charter) – Evidence – Procedural law – Trial – Whether hypnotically enhanced memories ought to be admissible at trial – Whether trial courts ought to limit the quantity and quality of post-offence conduct evidence that a jury can hear– Whether Crown counsel engaged in inappropriate cross-examination of the accused – Consequences to the verdict when boundaries of cross-examination are exceeded.

The Appellant was convicted of the second degree murder of his girlfriend. The Crown’s theory was that he murdered her in their apartment early on a Wednesday morning and returned around 3:30 pm the same day to re-arrange the body in order to stage a sexual assault. Two witnesses placed the Appellant at the apartment building on Wednesday afternoon but not at the apartment. A neighbour, in her first interview with the police, said that late on Tuesday or Wednesday night she overheard arguing, the girlfriend’s voice, and someone banging on an apartment door until admitted into the apartment. She also stated that she saw the Appellant close the victim’s apartment door and pass her in the hallway at 3:00 p.m. on Thursday. The officers asked her whether there was any possibility that she saw him in the hallway on Wednesday afternoon. After hypnosis, she stated that she had seen him on Wednesday. The trial judge allowed her to testify at trial to her post-hypnotic enhanced memory. Under an agreement between counsel, her pre-hypnotic statement was not entered into evidence and the jury did not hear that she had been hypnotized. The trial judge admitted, as similar fact evidence, testimony that the accused banged on another ex-girlfriend’s door and demanded entry after they had broken up. The trial judge allowed evidence of the Appellant’s post-offence conduct including: his reaction to the death; his failure to attend the funeral or a memorial; his conduct at work; and, his interactions with police. On appeal, the Appellant challenged the admissibility of the evidence. The Court of Appeal held some evidence of demeanor had been improperly entered into evidence but the remaining evidence had been properly admitted. It upheld the conviction.