Putting statements to a defendant in cross-examination may amount to improper splitting of a case

R. v. Khan, 2011 BCCA 382 is an important decision from the British Columbia Court of Appeal. It deals with Oath Helping, Vetrovec and something akin to the rule in Browne v. Dunn (1893) 6 R. 67, H.L. The rule in Browne v Dunn says that a cross examiner cannot rely on evidence that is contradictory to the testimony of the witness without putting the evidence to the witness in order to allow them to attempt to justify the contradiction. Here the Crown read transcripts of statements to the police during cross-examination; these statements were not part of the Crown's case in chief. This amounted to splitting the Crown's case – the form of cross-examination took the witness by surprise and did not allow for proper explanation.

Presumably the improper splitting of the case from this use of transcripts is not limited to criminal matters; it could apply in civil and family cases also.

The Court held:

[93] The last ground I will deal with is Mr. Khan's complaint that he was improperly cross-examined on statements he made to the police that the Crown did not tender as part of its case. Those statements were recorded and transcribed but neither the recordings nor the transcripts were before the jury. Before cross-examination commenced, Mr. Khan admitted that the statements were voluntary and admissible.

[94] During the cross-examination, Crown counsel, without objection from Mr. Khan's counsel, read out passages from the transcripts. Mr. Khan contends that the Crown used some of those passages, not as prior inconsistent statement to impeach his credibility, but as evidence of post-offence conduct demonstrating consciousness of guilt. In response, the Crown submits that the cross-examination was properly probing of Mr. Khan's lack of feelings and respect for Ms. Rossette. I disagree with the Crown. While it was open to Crown to lead evidence to show what it contended was Mr. Khan's uncaring attitude towards Ms. Rossette and their unborn child, it was not open to it to do so by cross-examining as it did on statements it had elected not to tender as part of its case. I should note that whether the Crown was entitled to rely on Mr. Khan's reaction to Ms. Rossette's death was not raised as a ground of appeal: see R. v. Perlett (2006), 212 C.C.C. (3d) 11 at paras. 82-86 (Ont. C.A.), leave ref'd, [2007] 3 S.C.R. xiii.

…

[96] In her closing address, Crown counsel referred to portions of Mr. Khan's cross-examination on his statements to the police. While she did not specifically mention the cross-examination pertaining to his demeanour during those interviews, she did ask the jury to have regard to what she submitted was his inappropriate attitude towards Ms. Rossette:

What we know about the relationship between Mr. Khan and Ms. Rossette was told to you by Mr. Khan. They'd known each other in high school. Then Mr. Khan had ran into he [sic] again in 2004 and at that time they exchanged phone numbers. Mr. Khan told you that Ms. Rossette called him, they talked here and there and as he said, "That was pretty much it." They he told you that they "hooked up," meaning they had sex once or twice. Wouldn't you agree that's a rather demeaning way of describing the relationship that a person had with the now deceased mother of his child?

...

Mr. Khan's testimony concerning Kristin Marrs and Tasha Ros[s]ette and he denied dating them and only had sex with them showed his complete lack of respect and feelings for them.

[Emphasis added.]

[97] In the course of summarizing the Crown's position for the jury, the trial judge said:

[277] …

10. The Crown asks that you disbelieve Mr. Khan's evidence and to note his cavalier demeanour about Ms. Rossette and women in general; …

[98] My difficulty with the above-mentioned cross-examination stems from the fact that it was not directed at impeaching Mr. Khan's testimony or demonstrating inconsistencies in what he told the police, but was designed to place before the jury his demeanour during the interviews and his apparent lack of concern at the time for the death of Ms. Rossette and the loss of their unborn child, e.g., by not asking about them at the outset of an interview. As previously mentioned, the Crown relied on Mr. Khan's apparent indifference to Ms. Rossette's death as supportive of its theory that he either killed her or had her killed to prevent her having a child that would bring shame to his family and bring him a lifetime of responsibility.

[99] In my view, the Crown impermissibly split its case. It was not what Mr. Khan said during the interviews that Crown counsel sought to place before the jury but how Mr. Khan acted during them and when he did, or did not, express concern for Ms. Rossette and the unborn child. I agree with Mr. Khan that parts of what occurred are not cross-examination as it is normally understood, but are tantamount to Crown counsel playing a video-clip from an interview and pointing out to the jury how Mr. Khan was acting or not acting at the time.

[100] How the Crown used the statements was fundamentally unfair to Mr. Khan. It enabled the Crown, after it had closed its case, to present additional evidence of his post-offence conduct; evidence the Crown could have tendered as part of its case. In proceeding as it did, the Crown contravened the "case to meet" principle discussed in R. v. Latimer, 2001 SCC 1, [2001] 1 S.C.R. 3, where the Court stated:

[47] The "case to meet" principle is a component of the accused's constitutional right to make full answer and defence. It means that an accused has the right to know the case he must meet before answering the Crown's case: R. v. Underwood, [1998] 1 S.C.R. 77, at para. 6; R. v. Rose, [1998] 3 S.C.R. 262, per Cory, Iacobucci and Bastarache JJ., at para. 102. The rationale behind this principle is that the accused, before embarking on his defence, should be able to assume that the Crown has called all the evidence it will rely on to establish guilt. …

[101] Although R. v. Krause, [1986] 2 S.C.R. 466, deals with the Crown's right to call rebuttal evidence, the following from the judgment of Mr. Justice McIntyre is apposite nonetheless (at 473):

At the outset, it may be observed that the law relating to the calling of rebuttal evidence in criminal cases derived originally from, and remains generally consistent with, the rules of law and practice governing the procedures followed in civil and criminal trials. The general rule is that the Crown, or in civil matters the plaintiff, will not be allowed to split its case. The Crown or the plaintiff must produce and enter in its own case all the clearly relevant evidence it has, or that it intends to rely upon, to establish its case with respect to all the issues raised in the pleadings; in a criminal case the indictment and any particulars: see R. v. Bruno (1975), 27 C.C.C. (2d) 318 (Ont. C.A.), per Mackinnon J.A., at p. 320, and for a civil case see: Allcock Laight & Westwood Ltd. v. Patten, Bernard and Dynamic Displays Ltd., [1967] 1 O.R. 18 (Ont. C.A.), per Schroeder J.A., at pp. 21‑22. This rule prevents unfair surprise, prejudice and confusion which could result if the Crown or the plaintiff were allowed to split its case, that is, to put in part of its evidence–as much as it deemed necessary at the outset–then to close the case and after the defence is complete to add further evidence to bolster the position originally advanced. The underlying reason for this rule is that the defendant or the accused is entitled at the close of the Crown's case to have before it the full case for the Crown so that it is known from the outset what must be met in response.

[Emphasis added.]

[102] As Mr. Khan's right to a fair trial was adversely affected by the improper cross-examination, I would allow his appeal on this ground alone.