DATE: 20051007

DOCKET: C41049

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – GIOVANNI CURTONE (Appellant)

BEFORE:

CATZMAN, ROSENBERG and JURIANSZ JJ.A.

COUNSEL:

Graham T. Clark

for the appellant

Roger Shallow

for the respondent

HEARD & ENDORSED:

September 30, 2005

On appeal from conviction by Justice Peter A. Grossi of the Superior Court of Justice dated September 11, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] This was not an unreasonable verdict. Several witnesses identified the appellant as the perpetrator and at least one, Travis Richards, claimed to recognize the appellant as the perpetrator.

[2] We are, however, satisfied that the fresh evidence of Jennifer Houben should be admitted. There are some concerns with the proposed evidence but the evidence is sufficiently credible in the sense that it is reasonably capable of belief.

[3] If believed, that evidence could reasonably be expected to have affected the result. While the verdict is not unreasonable, there were frailties with the identification procedure (e.g. there was no sequential photo line-up and the appellant’s photo appeared in the same spot in all the arrays). There were also some frailties in the identification evidence of the witnesses.

[4] Accordingly, the fresh evidence of Jennifer Houben is admitted. The appeal is allowed, the convictions are set aside and a new trial ordered.