R v McKenzie Ca7/03

This appeal concerns the conviction of Paul Desmond McKenzie for aggravated robbery. The appellant argued that the trial judge erred in two significant ways: first, by not discharging the jury upon learning that the appellant had served time in prison, and second, by allowing the prosecutor to cross-examine the appellant with reference to a statement made to the police by a co-accused, Michael O'Connor. This second issue formed the primary focus of the appeal. The trial judge permitted the prosecutor to cross-examine the appellant using information from O'Connor's statement, despite the fact that such statements are not evidence against the appellant. The appellant argued that this practice infringed upon the fundamental principle that out of court statements are only evidence against their maker.

The Court of Appeal considered the proper limits of cross-examination in light of various authorities. The Court found that while cross-examination upon the content of a co-accused's statement may be permissible, questions must not directly reference the source of the information. The Court held that the prosecutor's cross-examination was irregular as it directly referenced O'Connor's statement, thereby unfairly compromising the appellant's credibility. The Court also found that the trial judge's direction to the jury, while clear, could not overcome the prejudice caused by the improper cross-examination. As a result, the Court concluded that there was a risk that the appellant did not receive a fair trial, and ordered a retrial.

The Court did not find the reference to the appellant's past incarceration to be significant enough to merit a new trial on its own, but considered it alongside the cross-examination issue. The trial judge had promptly directed the jury to disregard the comment, and the Court found that the irregularity was minor in comparison to the cross-examination issue. However, it was still an irregularity that contributed to the overall unfairness of the trial.