Summary

38984

Haben Abrham Weldekidan v. Her Majesty the Queen

(Manitoba) (Criminal) (By Leave)

Keywords

Criminal law - Evidence, Admissibility - Criminal law — Evidence — Admissibility — Accused allegedly shooting three victims — Victims providing video recorded statements identifying shooter under oath — Two witnesses later claiming no memory of incident or of having identified shooter, one witness recanting portion of testimony — Trial judge ruling video recorded statements non admissible and acquitting accused — Court of Appeal overturning acquittal and ordering new trial — Whether trial judge, when considering issue of threshold reliability, limited to simply determining whether statement in question was taken under oath in considering procedural reliability — Whether advisable for trial judge to consider circumstances of taking and administering oath, including evidence of declarant’s state of awareness or consciousness, in determining procedural reliability — Whether trial judge’s determination of third requirement under test from R v. B (K.G.), [1993] 1 S.C.R. 740 ( “the opposing party, whether the Crown or the Defence, has a full opportunity to cross-examine the witness respecting the statement”) is entitled to deference — Whether Crown’s burden to show new trial warranted has been satisfied where trial judge in judge alone trial made findings on threshold reliability that impeded upon ultimate reliability — Whether witness’s prior statement, admitted for substantive use, can be used as corroborative evidence to admit other witness’s prior statements.

Summary

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The accused, Mr. Weldekidan, allegedly shot three victims. While still recovering in hospital, the victims provided individual videotaped statements recounting their versions of the events. The victims were warned prior to being filmed that their statements would be video recorded. Each victim agreed to provide a statement and acknowledged their understanding of the conditions verbally and in writing. In their individual statements, the three victims all identified Mr. Weldekidan, as the shooter. Following a voir dire on the admissibility of the video recorded statements — because two of the victims testified that they did not have any memories of the shooting or of providing the video statements, and the third victim denied having any memory of the individual who shot him — the trial judge deemed the video statements inadmissible. The charges were dismissed and Mr. Weldekidan was acquitted. The Court of Appeal allowed the Crown’s appeal, overturned the acquittal, and ordered a new trial.