Court of Appeal

                           NOVA SCOTIA COURT OF APPEAL

Citation: R. v. Dowe, 2007 NSCA 128

Date: 20071219

Docket: CAC 279500

Registry: Halifax

Between:

Her Majesty the Queen

Appellant

v.

Michael Gordon Dowe

Respondent

Judge:                   The Honourable Justice Nancy Bateman

Appeal Heard:      December 5, 2007

Subject:                 Appeal from acquittal - s.676(1)(a) Criminal Code

Summary:             The judge acquitted the accused on a charge of break and entry where the only evidence directly implicating the accused in the crime was that of an alleged accomplice who had pled guilty but was not yet sentenced for the crime.

Issues:                   Did the judge err in requiring that evidence, to corroborate that of the accomplice, must directly implicate the accused in the crime?  Did the judge further err in concluding that the prior consistent statement of the accomplice would have been admissible to corroborate his testimony of the accused’s participation?

Result:                  By the majority: Appeal allowed and new trial ordered.  The judge erred in both respects alleged by the Crown and, consequently, failed to properly assess the evidence of the accomplice.  The Crown had met the high burden of establishing that but for the error the verdict would not necessarily have been the same.  On dissent: the judge found that the evidence as a whole did not persuade him beyond a reasonable doubt that the accused participated in the offence.  He did not fail to assess the credibility of the accomplice or discount his evidence without appropriate analysis.