R. v. Waldhuber, 2019 BCPC 163

Citation: R. v. Waldhuber 2019 BCPC 163 Date: 20190712 File No: 20854-2-K Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GERHARD WALDHUBER ORAL RULING ON VOIR DIRE #1 OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: P. Cheeseman Counsel for the Accused: M. Lowe (Cross-examination only) Place of Hearing: Colwood , B.C. Date of Hearing: July 12, 2019 Date of Judgment: July 12, 2019 Introduction [ 1 ] THE COURT: Gerhard Waldhuber has been charged with an offence that he committed the assault of Christine Whitmore on the 6th of October, 2018.

That is an offence contrary to s. 266 of the Criminal Code . The Crown has proceeded summarily. [ 2 ] The initial evidence produced by Crown was from Constable Mcintosh. Constable Mcintosh was dispatched to the residence of the complainant Christine Whitmore (the “Complainant”), being also the residence of the accused Gerhard Waldhuber (the “Accused”) on the date in question of October 6th, 2018; he was dispatched at approximately 7:00 p.m.

[3] When he attended at the residence he had the occasion to both speak to and photograph Christine Whitmore and to take anaudio recorded statement from her (the “Audio Recorded Statement”). The Audio Recorded Statement has been referred to in theevidence during the trial proper and has now come back before the court by way of a voir dire to determine its admissibility in the trialproper under the doctrine of past recollection recorded. [4] That doctrine is described in the Supreme Court of Canada decision of R. v. Fliss, 2002 SCC 16, [2002] 1 S.C.R. 535 atparagraph 63.

That decision was followed and applied by our Supreme Court of British Columbia by Justice W.B. Smart, as he thenwas, in the decision of R. v. Sipes, 2012 B.C.J. No. 2687; 2012 BCSC 834. [5] The issue before this court is whether or not the conditions for admission of past recollection recorded have been met and applyto the Audio Recorded Statement that was given by the Complainant to Constable Mcintosh. Circumstances [6] During her evidence in chief and prior to entering into the voir dire, Ms.

Whitmore indicated that since November of 2016 (atwhich time her son passed away) she has suffered from memory loss that has been disabling to her. She was off work from her job as alicenced practical nurse for a period of some two years. She returned to work and as a result of the continuing memory issues herevidence is that she has been obliged to accept reduced responsibilities and now works as a patient porter at one of the major hospitals inthe Victoria area. [7] It was both Ms.

Whitmore's evidence in the trial proper, and then entering into the voir dire, that she has no recollection ofhaving made a statement to the police. When she was presented with Exhibit A in the voir dire and Exhibit A for identification in thetrial proper, being a transcript of the Audio Recorded Statement she made on October 6th, 2018 at 19:50 hours, she did not recognize thecontents of that statement transcript, nor did she recall having given the Audio Recorded Statement. [8] During the voir dire, the Audio Recorded Statement was played for her.

She and the court followed it along using thetranscript being Exhibit A and at the conclusion she continued to be questioned about her recollection. Ms. Whitmore again indicated inthe voir dire, which previously had been confirmed in her earlier testimony in the trial proper, that she did not recall giving the AudioRecorded Statement. She confirmed it was her voice on the Audio Recorded Statement. She could not attest to the accuracy of theinformation that she provided in the Audio Recorded Statement.

She did say that she is not a person who would be known for providingfalse information to the police. [9] When asked in the voir dire cross examination how she would know whether or not the information given to ConstableMcintosh and contained in the Audio Recorded Statement was in fact accurate, other than her own reliance on what I will describe as hercharacter of providing truthful information, she had to agree that she would not, or could not know that it was accurate. [10] She then went on to indicate in cross-examination that she made or may have made “an honest mistake” when she provided thatinformation to the police.

Therefore she could not accept, nor could she confirm at this point that what she told the police at that timeeither was truthful, (and as I take it from the whole of her answer) was in fact accurate. She was again pressed in redirect about theanswers that she gave in cross-examination, however, at best she could say that she was “guessing” that she was truthful when she wasgiving the Audio Recorded Statement. [11] In re-direct she further indicated that she "thinks" that she would tell the police officer the truth, but again kept repeating thatshe could not remember: (

a) what she told the police officer, or (

b) having given a statement to the police. She also characterized thatshe was uncertain as to the day that the events actually occurred, believing them to be a different date in October. She repeated that whatwas contained within her statement may be what she described as “an honest mistake”. The Law With Respect to Past Recollection Recorded [12] In the Sipes decision Mr. Justice Smart was dealing with a Crown application to introduce a document for the truth of itscontents as past recollection recorded.

The document in that case was a diagram which had been prepared by the witness, about whichshe apparently had some recall of having produced it, but no recollection of some of the information recorded on it. [13] In reviewing the law at paragraphs 9 to 13, under the heading, “The Applicable Legal Principles”, Justice Smart says as followsat starting at paragraph 9: The Supreme Court of Canada identified the criteria for the admission of evidence as past recollection recorded in R. v.

Fliss, 2002 SCC16 , [2002] 1 S.C.R. 535, at para. 63: ... [T]he officer's testimony does not qualify for admission as "past recollection recorded". This doctrine would apply only if theprosecutor could satisfy the four Wigmore criteria, usefully summarized by the Alberta Court of Appeal in R. v. Meddoui (1990) (AB CA), 61 C.C.C. (3d) 345, per Kerans J.A., at p. 352: The basic rule in Wigmore on Evidence (Chadbourn rev. 1970), vol. 3, c. 28, s.744 et seq. provided: 1. The past recollection must have been recorded in some reliable way. 2.

At the time, it must have been sufficiently fresh and vivid to be probably accurate. 3. The witness must be able now to assert that the record accurately represented his knowledge and recollection at the time. The usualphrase requires the witness to affirm that he "knew it to be true at the time". 4. The original record itself must be used, if it is procurable.

10. Paciocco and Stuesser discuss past recollection recorded and present recollection revived, and the tendency for the two rules to be misunderstood or blended into one: David M. Paciocco and Lee Stuesser, The Law of Evidence , 6th ed. (Toronto: Irwin Law, 2011), at pp. 422-430. 11. The authors summarize past recollection recorded at pp. 422-423: A witness may, with leave of the court, refresh her memory in court from a document or an electronic record that was recorded reliably. The witness must use the original, if it is available, but where it is not, an authenticated copy can be relied on.

If the record is a document created by the witness, it must have been created at a time when the memory of the witness was sufficiently fresh to be vivid and probably accurate. .... The witness can rely on the document or electronic record to assist in presenting his testimony only if the witness is able to assert that the document ... accurately represents his recollection at the time it was made. 12. Paciocco and Stuesser explain that it is the document that is the evidence and why, therefore, it is important to ensure strict compliance with the Wigmore criteria.

They state at p. 426: Since "past recollection recorded" permits witnesses who have no personal memory of an event to rely on the contents of the record and to incorporate the contents of the record into their testimony, it is artificial to suggest that the witness is the immediate source of the evidence. The witness, who has no personal memory of the details and facts recorded, is vouching for the record, but it is the record that is supplying those details and facts.

For this reason, many believe that "past recollection recorded" is actually a hearsay exception, with those portions of the record incorporated into the testimony serving as the evidence. This is more realistic than pretending that the testimony of a witness who is simply parroting the document is original testimony. Recognizing this also reaffirms the importance of ensuring strict compliance with the requisites of the rule - effectively, they furnish the kind of necessity and reliability requirements that operate for other forms of hearsay evidence. 13.

They also address the question as to whether the document should be marked as evidence at p. 428: Although the conventional view is to the contrary, some courts, recognizing that the document is actually the source of the evidence, permit the document to be admitted as an exhibit.

Where the document is the font or source of the information, permitting it to be filed as an exhibit is sensible unless the document contains otherwise inadmissible information, information that the witness cannot authenticate, or there is legitimate concern that it will be given undue weight if provided to the jury in the form of an exhibit.

Analysis [ 14 ] In analyzing the Audio Recorded Statement in this case in the context of admissibility as past recollection recorded, as is outlined in Sipes , I am of the view that Crown has satisfied the first of Wigmore' s criteria, namely: that the past recollection must have been recorded in some reliable way. In this case, it was recorded by a police officer in the course of an investigation. It was recorded on an audio recording device. The Audio Recorded Statement has been played in court in the presence of the witness who provided the statement. It is clear in its contents.

It has been accurately transcribed and presented to the witness for her review. [ 15 ] With respect to the analysis of the second criteria, namely that: at the time it must have been sufficiently fresh and vivid to be probably accurate , I find that Crown has satisfied that requirement. The timing of the taking of the statement by way of the Audio Recorded Statement apparently occurred within less than an hour of the events that are described in that statement.

Therefore, I am satisfied that this requirement of being freshly and vivid is satisfied. [ 16 ] As to analysis of the aspect of sufficient satisfaction of the third criteria I will turn to it later, below. [ 17 ] The fourth requirement or criteria namely that: the individual record itself must be used if it is procurable is also satisfied in this case.

The original of the Audio Recorded Statement is available, and as I previously indicated has been presented in court and entered as an exhibit in the voir dire . [ 18 ] This case then turns on whether or not Crown has satisfied the third criteria, namely that: the witness must be able at present time to assert that the record accurately represented her knowledge and recollection at the time .

Wigmore' s requirement is that the witness must affirm that she "knew it to be true at the time". [ 19 ] On this third criteria, the Complainant, Christine Whitmore, whose statement has been placed before her, in my view, does not provide a sufficient and adequate assertion that the record accurately represents her knowledge and recollection at the time. She was at best equivocal and contradictory on this point. She did provide excuses as to why she could not accept that it was accurate. She stated that she is a person who does not provide misinformation, or lie to people, including the police.

She speculated that she may have been mistaken when she gave the statement and speculated further as to what information was available to her at the time of making that statement. [ 20 ] Generally and overall, in my view, she has not affirmed as is necessary under the third of Wigmore’s criteria, about the Audio Recorded Statement, nor specifically affirmed to the effect that she "knew it to be true at the time".

Conclusion and Ruling [ 21 ] Based on the whole of the circumstances and having heard the evidence, both of the police officer, as well as that of Christine Whitmore, and specifically the evidence in the voir dire , I am unable to conclude that Crown has satisfied all of the necessary requirements to have the Audio Recorded Statement provided to the police admitted in the trial proper under the doctrine of past recollection recorded. [ 22 ] That completes my ruling on the voir dire . (RULING CONCLUDED)