R. v. Tran 2002 OCA mini 299

DATE: 20020530 DOCKET: C37610

COURT OF APPEAL FOR ONTARIO

MCMURTRY C.J.O., CRONK and GILLESE JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

• and -

HUY CONG TRAN

Appellant

Russell Silverstein for appellant

Erin MacCarthy for the respondent

Heard: April 18, 2002

On appeal from the judgment of Justice Peter A. Grossi dated May 30, 2001.

GILLESE J.A.:

1The appellant was found guilty by a jury of aggravated assault, weapons dangerous and assault with a weapon. Grossi J. entered a conviction on the aggravated assault charge and stayed the latter two charges pursuant to Kienapple v. R. (1974), 15 C.C.C. (2d) 524 (S.C.C.). The appellant was sentenced to 12 months imprisonment. He appeals against conviction. He is currently on parole.

Overview

2On September 13, 1998 at approximately 10:00 a.m., the complainant, Thanh Do, went to a karaoke restaurant and made some repairs in the kitchen. He finished the repairs at 6:00 p.m., went home and showered and returned to the restaurant at approximately 7:00 p.m. for dinner. He ate dinner and drank two or three beers.

3At about 11:00 p.m., while watching the restaurant for a waitress who had gone to the washroom, the complainant stopped a man trying to get into the kitchen. The man threatened the complainant and put him in a headlock. Some people separated them.

4At trial, the complainant described the individual as a male with an earring and a white shirt or tee-shirt.

5Shortly after this occurred, the complainant heard some yelling in the restaurant. He became frightened and ran outside. He tried to hide beneath a bush. A crowd followed him. He then ran back towards the restaurant for help. He tripped and fell. When he got up, three young men beat him. Two of the men were wearing white shirts. One of them was wearing a black shirt.

6One of the men wearing a white shirt struck the complainant’s eye with a broken glass. The complainant’s eye was bleeding. He covered his eye with his hand and ran to the middle of the road where he fell down again and lost consciousness. As a result of the incident, the complainant lost his right eye.

7The complainant described the three assailants as:

1. black shirt, black pants, North Vietnamese accent, 30 years old, medium build, fine complexion, thick moustache, short black hair, 165 cms. tall

2. white shirt, clean shaven, same size as #1

3. white shirt, clean shaven, same size as #1

8Shortly after the assault, an unknown man assisted the complainant. He could not say whether the appellant was the man who had helped him.

9The police arrived at the scene shortly after the assault and saw a crowd gathered. They then saw two men running close together from the scene and gave chase. One of the men was the appellant and the other was wearing a black shirt. The appellant was apprehended by the police but the man in the black shirt was not.

10At the time of arrest, the appellant was wearing a grey, zip-up long-sleeve shirt, stained with the victim’s blood. He wore a silver hoop earring and was 24 years old. He was 173 cms. tall, weighed 68 kilograms and had black hair with blond dye in it. He was clean-shaven and spoke with a South Vietnamese accent.

11At no time did the complainant identify the appellant as any of the men who assaulted him that night.

12The appellant testified that he got to the restaurant to see his girlfriend at approximately midnight. He drank about 5 glasses of cognac. A man in a white shirt grabbed his glass and rushed outside. When the appellant left the restaurant, he saw the complainant walking unsteadily and noticed that he had a “lot of blood” on his face. He testified that he went to assist the complainant, and helped him to sit down. The complainant touched the appellant’s shirt and shoulder in the process. The appellant testified that he saw a man in a black shirt fleeing the scene and gave chase. The police apprehended him but failed to catch the man in black. He denied having anything to do with the assault.

13The trial was short, consisting of two days of evidence.

Grounds of Appeal

14The appellant alleges three errors. First, that the trial judge erred in his instructions to the jury by characterising the case as turning on eyewitness identification. Second, that the verdict was unreasonable. Third, the trial judge erred by failing to relate the evidence on the issue of party liability to the legal instruction on aiding and abetting. The appellant concedes that the judge properly instructed the jury on the meaning of aiding and abetting.

Instructions relating to Eyewitness Identification

15Read as a whole, it is clear that the trial judge dealt with this case as one that did not involve a positive identification. He explicitly instructed the jury that this was not an eyewitness case nor a positive identification case.

16The trial judge recognised the extreme importance of the complainant’s description of the “man in black”. He pointed out all of the differences between the description given by the complainant of the “man in black” and the characteristics of the appellant.

17The trial judge stated that the description given by the complainant of the three assailants did not describe the appellant.

18Giving the standard caution relating to identification evidence, in our view, did not amount to an error in the circumstances of this case. The caution was relevant to the jury’s consideration of the complainant’s description of the “man in black”. It was appropriate to caution the jury to think carefully about the conditions and circumstances of the complainant when considering the description given by him of the assailants. This is particularly so given that immediately after setting out the complainant’s description, the trial judge set out the six significantly different factors between that description and the appellant. He described the differences as significant and stated that “It may be that Mr. Do is not identifying Mr. Tran but rather exonerating him from being the man in the black shirt.”

19It may have been preferable that the trial judge refrain from using the word “identification” after stating the case was not one based on identification. However, on a reading of the charge as a whole, it was neither wrong nor confusing.

Reasonableness of the Verdict

20The judge correctly instructed the jury that the Crown’s case was substantially circumstantial and that the Crown had to prove beyond a reasonable doubt that the man referred to by the complainant as the “man in black” was the appellant and, if so, that the appellant had aided and abetted the principal perpetrator.

21The complainant described all three men as acting in concert with one another so there was sufficient evidence upon which the jury could convict the appellant as a party to the aggravated assault.

22The judge instructed the jury on the inconsistencies between the description of the “man in black” given by the complainant and the characteristics of the appellant at the time of his arrest.

23The judge related the appellant’s version of events, namely, that he went to the complainant’s aid and then began chasing the person whom he saw running away as he believed the person might have committed the crime and he wanted to catch him.

24He dealt with the appellant’s post-offence conduct and stated that it could be that of an innocent person.

25The jury was entitled to look at the inconsistencies in description and the explanation offered by the appellant in conjunction with the circumstantial evidence pointing to the appellant’s guilt. The circumstantial evidence included the fact that the weapon was the appellant’s broken brandy glass, the complainant’s blood on the appellant’s shirt and on the brandy glass, and the appellant’s flight.

26We do not find the jury’s verdict unreasonable. There was sufficient evidence to support a finding that the appellant aided and assisted in the assault.

Party Liability

27The trial judge’s instructions accurately conveyed to the jury the issue it had to decide in terms of party liability. As conceded by the appellant, instructions on the meaning of aiding and abetting were proper.

28The trial judge properly responded to a relevant question from the jury. The question and answer are as follows:

Is being part of the group that assaults a victim but not being an active participant of the assault constitute a crime? If Tran was part of the group but did not physically assault Mr. Do, is he guilty?

Well, by your question number two, you’re concerned with the group and one or more of that group taking part in the assault of Mr. Do – that person could attract guilt; he’s a party to the offence. And you’ll recall the evidence of Mr. Do. There were three persons beating him, and he described them. So for Tran to attract guilt, he must be one of the three. If he was part of the group that did not assault Mr. Do, he cannot, in the circumstances and the evidence of this case, be found guilty on that basis.

29Given the short duration of the trial and considering the jury charge as a whole, we see no error in the failure of the trial judge to relate the evidence on the issue of party liability to his charge.

30The appeal is dismissed.