REGINA Respondent AND: MOHAMED MOHAMED ABDULLAHI Appellant, 2011 YKSC 64

SUPREME COURT OF YUKON Citation: R. v. Abdullahi, 2011 YKSC 64 Date: 20110817Docket S.C. No.: 09-AP014Registry: Whitehorse BETWEEN: REGINA Respondent AND: MOHAMED MOHAMED ABDULLAHI Appellant Before: Madam Justice B.L.

Keyser Appearances: David McWhinnie Jennie Cunningham Appearing for the Crown Appearing for the Defence REASONS FOR JUDGMENT DELIVERED FROM THE BENCH [1] KEYSER J. (Oral): Defence counsel has appealed this case on the basis that the learned trial judge improperlyadmitted statements made to the complainant’s two friends when dropped off by the accused at the friend’s house, and by using thosestatements to bolster the credibility of the complainant’s testimony. [2] I start by saying that the trial judge provided a lengthy, reasoned 15-page judgment before convicting Mr. Abdullahi.

In it hemakes it clear that he is alive to the test in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742; that it is not a credibility contestbetween the accused and the complainant, and how the evidence is to be contextualized.

He then goes on to indicate that demeanour is ofno particular significance in this case, as there was nothing in either the testimonies of the accused or the complainant that would say thatone was truthful or untruthful vis-à-vis the other. [3] At page 8 of the judgment, he discusses the state in which the complainant was in when she arrived at the friend’s house; that isto say, crying and distraught and in a state that they had never seen her before.

This is, of course, completely admissible evidence. [4] The impugned parts of the decision are, basically, in paragraphs 20, where the learned trial judge talks of admissible, excitedutterances, and paragraphs 23 and 24, which has the learned trial judge saying that he finds it difficult to find that she would havefabricated this story in these circumstances as quickly as she did, and presented it as consistently as she has throughout.

Defence counselmaintains that these statements should not have been admitted, nor relied on for their truth. [5] Prior consistent statements are generally inadmissible except in a narrow set of circumstances, and there are many valid reasonsfor this which are well-known and which I will not enumerate. One exception is to rebut the allegation of recent fabrication. This case, inmy view, is not a case of recent fabrication.

Just because an accused takes the stand to testify in his own defence and disputes thecomplainant’s allegations and puts forward a possible motive to lie does not mean he is suggesting recent fabrication. But the matterdoes not end there. [6] The courts have generally moved to a principled approach to hearsay, but they have also not abandoned the old pigeon-holeexceptions. These remain admissible exceptions to hearsay except in rare cases. Such is the situation for excited utterances.

In this case,the learned trial judge found the comments to her friends to be such excited utterances, which are presumptively admissible. Indeed,defence counsel did not dispute the admissibility of comments, just their truthfulness. Therefore, I find that the trial judge was not in

error to have admitted the statements to the friends as excited utterances which could be used for their truthfulness. Despite that, the learned trial judge did not place much weight on these comments. There were several passing references to them in the midst of a lengthy, well-reasoned decision. I find that, therefore, he did not err in admitting the comments, or in his use of them.

The appeal is therefore dismissed. [ 7 ] I do note in passing that defence counsel is not the same as defence counsel at trial, and if this point had been raised and fully argued at trial it might be the case that the learned trial judge would have come to a different conclusion. ________________________________ KEYSER J.