Judicial Caution: Vetrovec warnings & the Adduction of New Evidence in R. v. Hurley
On May 14, 2010 the SCC released its judgment in R. v. Hurley, 2010 SCC 18, which addresses the current state of the law with respect to Vetrovec warnings. In the proceeding, the prosecution relied on the testimony of a jailhouse informant who had a motive to lie and was thus considered to be lacking in credibility. As established in Vetrovec v. The Queen,  1 S.C.R. 811 a Vetrovec warning communicates to a jury the risks of adopting the evidence of an unreliable witness. At issue in Hurley was (a) whether the Vetrovec warning provided was inadequate, and (b) whether adducing new evidence would affect Hurley’s conviction at the trial level, where a jailhouse informant’s evidence was bolstered by a lack of evidence.
It All Came Down to the Credibility of a Jailhouse Informant
Gordon D. Hurley was convicted of the second-degree murder of a young woman, Jarita Naistus. Naistus was found dead in a Saskatchewan hotel room as a result of asphyxiation and swelling of the brain caused by blunt force trauma. DNA evidence showed that Hurley was one of two individuals that was present in the room the day before. Hurley’s DNA was found on a facecloth in the room and under the victim’s fingernails. Hurley testified he had left the room while Naistus was still alive.
At trial, the Crown’s key witness was a jailhouse informant, Darrel Niemi. Niemi claimed that Hurley admitted to cleaning the room in order to destroy DNA evidence during conversations that they had while they were both in prison. While Hurley admitted he had conversed with Niemi, he denied destroying DNA evidence.
Serious concerns existed with respect to Niemi’s testimony. Niemi was facing charges and aware that a reward was available for providing testimony. As well, he failed to disclose his knowledge of the alleged clean-up when he was first approached by the police. The judge gave the jury a Vetrovec warning, but did not mention these considerations. This failure was significant as the latter may have influenced Niemi’s motivations when he testified during Hurley’s trial. Oddly enough, the jury’s decision rested on the lack of evidence as being proof of the clean-up that corroborated Niemi’s testimony.
The first ground of appeal concerned the sufficiency of the judge’s Vetrovec warning to the jury. While the trial judge advised the jury to use extreme caution in accepting Niemi’s testimony, Rothstein and Cromwell JJ., writing for the SCC at para. 8 found that:
…the trial judge’s explanation of the reasons for the caution was incomplete. He did not tell the jury that caution was required because Mr. Niemi was a jailhouse informant, that he was facing charges himself, or that he was aware a reward was offered for information about the killing.
Vetrovec warnings can prevent the conviction of an accused based on a single piece of unsupported evidence stemming from a witness of doubtful credibility. As Fish J. held in his majority decision in R. v. Khela, 2009 SCC 4, the warning serves two purposes:
…first, to alert the jury to the danger of relying on the unsupported evidence of unsavoury witnesses and to explain the reasons for special scrutiny of their testimony; and second, in appropriate cases, to give the jury the tools necessary to identify evidence capable of enhancing the trustworthiness of those witnesses.
For more information on Vetrovec warnings, my colleague, Soloman Lam, provides an excellent overview in his article, “Cautioning the Jury About Unsavoury Witnessess: the Vetrovec Warning,” and I would direct readers there for more information on this topic.
The crux of the Hurley decision centres around the adduction of new evidence and the effect it had on the Vetrovec warning. Here, adducing new evidence rendered the previously-given Vetrovec warning moot.
The New Evidence
A lack of evidence formed the basis upon which Niemi’s testimony was accepted by the jury in light of a Vetrovec warning. However, Hurley also sought to adduce new evidence, namely additional DNA of his own that was found in the hotel room.
The introduction of new evidence would render Niemi’s testimony useless as the latter was only accepted in light of a lack of evidence. Thus, the question of whether the new evidence was to be introduced was of crucial importance.
In Palmer v. The Queen,  1 S.C.R. 759, the factors to be considered with respect to adducing new evidence are established at p. 775:
(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases.
(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
(3) The evidence must be credible in the sense that it is reasonably capable of belief, and
(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
Factor (4) was at issue in this case. The question was whether new evidence could reasonably be expected to have affected the result. The SCC held that this new evidence would affect the result.
As for my opinion, the reasons given by the SCC accurately emphasize the importance of a fair trial. The acceptance of Niemi’s testimony was entirely based on the absence of DNA evidence. As such, any amount (however small) of additional DNA evidence would have potentially swayed jurors to not allow Niemi’s evidence regarding the clean-up and would have likely compromised his entire testimony. Incidentally, new evidence may very well have had a positive impact on the jury’s evaluation of Hurley, who denied cleaning the room and having any conversation about destroying evidence with Niemi. Indeed, the Crown conceded that Niemi’s evidence of the clean-up was critical to their case.
The Threshold of “Doubt”
One might argue that because a small amount of Hurley’s DNA was found in the room on a facecloth, doubt existed with respect to the cleaning allegation. Thus, adducing more DNA evidence could not “reasonably be expected to have affected the result,” as per factor (4) of the Palmer requirements. This logical fallacy fails for two main reasons.
First, the criminal justice system carries a strict burden of proof for criminal convictions due to the social stigma that comes from being found guilty of committing a crime. As such, if there is any chance a jury might decide differently, it is only just and fair to introduce the evidence for a new trial. Adducing additional DNA evidence can reasonably be seen as a factor that could clear the hurdle of doubt necessary to discount Niemi’s testimony.
Second, as outlined by Hurley, the new evidence had the potential to offer new explanations for the night’s course of events. Not only would the evidence cast doubt on Niemi, but might also support an assertion that Hurley was not the last person in the hotel room. There was also a possibility that the new evidence could bolster the credibility of another witness whom testified that Naistus was not with Hurley at the time of her murder.
In conclusion, Hurley gives a clear analysis of the interplay between Vetrovec warnings and evidentiary issues in criminal proceedings. The SCC’s liberal approach to adducing new evidence upholds the integrity of justice.