Case information

Criminal law — Evidence — Exculpatory out-of-court statement — Fabrication — Post-offence conduct — What will constitute independent evidence of fabrication in context of exculpatory statements made by accused persons in circumstances (a) where accused are detained or treated as suspects by police for crime in question; (b) where statements are prompted by, and/or are responsive to, questioning by police; or (3) where statements acknowledge accused’s presence at scene of crime at relevant time and merely deny being perpetrators? — Will any demonstrably false statement by accused to police necessarily constitute independent evidence of fabrication, even where intent to deflect suspicion cannot be reasonably inferred?

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A jury found the applicants, Nicholas Rhoden (41923) and Rushawn Anderson (41925), guilty of attempted murder and aggravated assault. They appealed their convictions contending, amongst other, that the trial judge erred in his ruling that their exculpatory out-of-court statements could be found to be fabrications and in his fabrication instruction to the jury.

A majority of the Court of Appeal dismissed the appeals. The court unanimously agreed that the trial judge did not err in his ruling that the applicants’ out-of-court exculpatory statements could be found to be fabrications. A majority of the court further held that the trial judge did not err in his fabrication instruction to the jury and that the verdicts were not unreasonable. In dissent, Gomery J.A. would have allowed the appeals and quashed the convictions on the basis that the trial judge gave the jury a legally flawed instruction on fabrication, which prejudiced the applicants, and on the basis that the verdicts were unreasonable. In light of her conclusion that the verdicts were unreasonable, she would have substituted acquittals.