Tuesday, April 12, 2016

Third Party Suspect

R. v. Salomonie, 2015 NUCJ 05:



[22] The law is fairly well settled. Evidence that a person other than the accused committed the crime is referred to in the authorities, variously, as either 'third party suspect evidence,' or, 'alternate suspect evidence.'


[23] The third party suspect evidence may be direct evidence, as was the case in R v Murphy, 2012 ONCA 573, 292 CCC (3d) 122 [Murphy], where the third party volunteered testimony that he, and not the accused, was the perpetrator of the crime.


[24] The proposed alternate suspect evidence may also be circumstantial in nature, as the case in R v Grant, 2013 MBCA 95, 302 CCC (3d) 491 [Grant], where the prospective evidence was that the perpetrator of the crime was a third person who had committed a subsequent 'signature' crime – and at a time when the accused was in custody.


[25] Murphy and Grant illustrate the danger to which Defence Counsel alluded during argument of not letting a jury hear this type of exculpatory evidence.


[26] Before, however, the Defence is permitted to lead such evidence before the jury it must be shown that there is an air of reality to the proposition that someone other than the accused committed the crime.


[27] In order for the proposed evidence to meet this threshold standard there is a requirement of a sufficient connection between the third party and the crime.


[28] Obviously, the Defence is not required to show prima facie proof that the third party committed the crime, but there must be a connection between the third party and the crime. For example, an animus on the part of the third party towards the victim of the crime (often evidenced by comments made by the third party) together with evidence of motive and/or opportunity.


[29] The law is clear that evidence simply of a violent disposition on the part of the third party towards the victim of the crime is, by itself, not a sufficient connection to support or advance the alternate suspect proposition.


[30] The law says that without this link the third party evidence is neither relevant nor probative. The evidence may be inferential, but the inferences must be reasonable, based on the evidence, and not amount to speculation.


[31] The Defence must show some basis upon which a reasonable jury, properly instructed, could acquit based on the Defence, i.e., be left with a reasonable doubt that it was the accused who committed the crime.


[32] The authorities are clear that if there is an insufficient connection, the defence of third party involvement will lack an air of reality and, in turn, its prejudicial effect will substantially outweigh any probative value. The integrity of the trial process would be undermined if the jury was left confused, i.e. if their fact finding role was "sidetracked" about the possible involvement of a third party with no sufficient connection to the crime.





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