In R. v. Furey, 2021 NLCA 59, December 23, 2021, the accused was convicted of a number of offences, including assault. He appealed from conviction, arguing that “the trial judge erred in admitting, for the truth of its contents, an out-of-court statement given by one of the complainants (Paul Worrall), who subsequently died of unrelated causes”.
The appeal was allowed and a new trial ordered. In ruling that the statement was admissible, the trial judge had indicated that “where necessity is high, less reliability is required”.
The majority of the Court of Appeal noted that the “analysis to determine the admissibility of an out-of-court statement where the declarant is unavailable to testify at the trial begins with a consideration of necessity and reliability” However, the majority of the Court of Appeal rejected the proposition that “where there is greater necessity, less reliability is acceptable”. The majority concluded that “increased necessity does not have the effect of reducing the threshold of reliability that is required in order to render an out-of-court statement admissible. Reliability is a key component when assessing whether an out-of-court statement by a deceased person is admissible for the truth of its contents. It follows that the trial judge erred insofar as she relied on and applied the erroneous statement of the law” (at paragraphs 5 and 13).
The Curative Proviso:
The majority of the Court of Appeal held that “the trial judge’s error in applying an incorrect principle of law in determining the admissibility of Paul Worrall’s statement could not be characterized as harmless or trivial. Further, from the perspective of the appellate court, it cannot be said that the evidence is so overwhelming that the trier of fact would inevitably convict…In the result, I am satisfied that the curative proviso would not apply on the facts of this case” (at paragraphs 25 and 26).
In a dissenting judgment, Justice Knickle concluded that the trial judge did not err (at paragraph 50):
Given that there is flexibility to the assessment of reliability, the trial judge did not inappropriately “relax” the reliability assessment in these circumstances. The statements of the trial judge that where necessity criteria is “high, less reliability is required”, or that the deficits in reliability were “offset by the high degree of necessity”, cannot be taken in isolation from the whole of her decision. When viewed in the context of her decision as a whole, it is clear the impugned references mean no more than the trial judge acknowledging the related and flexible assessment of both criteria as discussed above.