DATE: 20051103
DOCKET: C40099
COURT OF APPEAL FOR ONTARIO
WEILER, ROSENBERG and GILLESE JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Respondent
- and -
LINDA PARBERRY
Appellant
Philip Campbell and Jennifer Cunningham for the appellant
Nadia Thomas for the respondent
Heard: September 14, 2005
On appeal from conviction by Justice Peter Cumming of the Superior Court of Justice, sitting with a jury, dated March 15, 2003.
ROSENBERG J.A.:
[1] The appellant appeals from her convictions by Cumming J. and a jury on charges of aggravated assault, two counts of assault with a weapon and threatening to cause serious bodily harm. The charges stem from an altercation outside a nightclub in Toronto that ended in a serious stabbing. The principal issue at trial was identification. The appellant was tried with two others, Britt Waszek and David Chetley. Waszek and Chetley were charged with various offences, but none relating to the stabbing. It was the theory of the defence that Waszek stabbed the victim. The appellant raises three grounds of appeal: first, she submits that the trial judge did not adequately direct the jury on the frailties of the identification evidence; second, he misdirected the jury on the use to be made of a statement Waszek gave to the police; and third, he erred in directing the jury as to how to approach the problem that arose at the end of the case by reason of the theft of the exhibits from the courtroom.
[2] For the following reasons, I would allow the appeal and order a new trial.
THE FACTS
[3] At around 11:00 p.m. on April 28, 2001, the appellant entered the Life nightclub in downtown Toronto. She was with Waszek, Chetley and five other people. Waszek was the appellant’s friend from high school and Chetley was Waszek ’s boyfriend. The appellant had been drinking most of the day. Soon after entering the club, the appellant asked a man where she could get some marijuana. This man was standing with several other men including Sanjiv Patel, who would later be the victim of the stabbing. Patel made a crude remark directed at the appellant. This enraged Waszek who began cursing and making crude gestures towards Patel and his companions. She threatened to “mace” or pepper spray them and finally she threw some beer on two of Patel’s companions. In contrast, the appellant was said to have remained calm and to have accepted an apology from Patel.
[4] As a result of the beer-throwing incident, the security staff ejected Waszek from the club. She was, however, permitted to return under escort, to find Chetley. While back inside the club she again threatened to mace Patel. Waszek and Chetley were then escorted out of the club. While there was a consensus among most of the witnesses up to this point, from then on the various witnesses told widely divergent stories. According to some of the witnesses, only two persons left the club. Other witnesses suggested that three people, including the appellant, left the club. The appellant claimed that she stayed in the club and actually joined the Patel group. There were some frailties with this part of the appellant’s story since Chetley had her money and identification and her house keys were at Waszek’s home. Be that as it may, some of the Crown witnesses supported the defence case that only two persons left the club.
[5] The ground of appeal concerning identification evidence centres on the evidence given by Chris Smith, a member of the club’s security staff. He was outside the club and saw a male and female ejected from the club. He testified that two people, a male and a female, left the club under security escort. He identified the female as the appellant. Most importantly, he claimed to hear the woman say: “[Y]ou know, that guy is dead. I’m going to stab him when he comes outside”. There is an obvious problem with this evidence since if only two people were ejected from the club, it seems likely that the female was Waszek. On the accounts of everyone in the club, she was the one who threw the beer and was ejected by the security staff. I will return to Smith’s evidence after concluding the narrative of events.
[6] The people who had been ejected from the club remained in the vicinity. Patel and some of his companions left the club shortly before closing time. They heard Waszek say: “[T]hose are the guys, those are the guys”. Patel and his friend Wayne Skinner turned around and walked back toward where Chetley and Waszek were. Waszek and Chetley then sprayed Patel and Skinner with pepper spray. Patel and Chetley then began fist fighting. The events that followed were very confusing and witnesses gave varying accounts of the events.
[7] The most important witness for the Crown was Markus Bundze. Bundze was a friend of Ron Gibson, a promoter at the club. He testified that during the fistfight, Waszek told him not to intervene. She then pepper-sprayed Patel. When Bundze attempted to intervene by stepping up behind Waszek, the appellant stepped in front of him, exposed a knife and put it to his chest. She held the knife at the centre of his chest in a threatening manner for several seconds and said, “you don’t want any of this, do you, you don’t want any of this?” Bundze saw some blood on the knife and the knife left a spot of blood on his shirt where the appellant had poked him. After the threat, Bundze did not see the appellant or Waszek. The appellant admitted pushing Bundze, but denied having a knife.
[8] At some point, someone stabbed Patel. None of the witnesses, including Patel, saw the stabbing. The theory of the Crown was that the appellant stabbed Patel just before she threatened Bundze with the bloodstained knife. The theory of the appellant’s defence was that there were actually two phases to the fight, and that Patel was stabbed during the second phase, which took place down the street from the club. The evidence is fairly compelling that the appellant was not near the fight during this second stage. In any event, at some point, Patel realized he had been stabbed and the fight ended. Smith and others came to Patel’s assistance and also held the appellant, Chetley and Waszek for the police.
[9] One of the security staff, Matt Brook, testified that the woman who had earlier left the club, and had made the threat at that time, admitted that she had stabbed Patel. It will be recalled that Chris Smith identified this woman as the appellant. There was conflicting evidence as to which of the security staff was holding the appellant when the police arrived. Bundze testified that he was holding the appellant and that she said, “I didn’t mean to do it … I don’t even have a knife”. The police witnesses were unable to confirm who had hold of the three accused.
[10] The appellant testified and denied threatening Bundze or anyone else and denied stabbing Patel. She also denied making the remarks attributed to her by Smith and Bundze.
(a) Chris Smith’s identification
[11] Chris Smith was not interviewed by the police at the time of the incident and did not take part in any identification procedures. He was, however, subpoenaed to attend the preliminary inquiry, over a year after the events. While waiting to testify, Smith was asked to prepare a statement. He wrote out a short statement. He was not called as a witness at the preliminary inquiry. His statement was not made an exhibit at the trial and was not produced on the appeal. Submissions made by the appellant’s trial counsel suggest that Smith did not identify the appellant in the statement as the person who made the threats outside the club. In cross-examination, Smith conceded that he now recognized the appellant as someone he knew from high school. He had apparently not mentioned this to anyone at the time of the arrests or in his statement.
(b) Waszek’s statement to the police
[12] Britt Waszek gave a statement to the police and the Crown introduced this statement into evidence at the joint trial. In the statement, she admitted pouring beer on the victim’s companions and being removed from the club. She said that she, Chetley, the appellant and the bouncer walked past the victim and his friends and Chetley began to argue with the victim. The bouncer grabbed Chetley and began to smash his head into the wall. They then left the club and Waszek was waiting for her “friend”. Later, she saw the victim and his friends come out of the club. The appellant was behind them. Chetley confronted Patel and they began to fight. The appellant had Waszek’s pepper spray so Waszek took it from her and intervened in the fight but the pepper spray did not work. The bouncers then came and broke up the fight and told them to sit down. One of the bouncers came up and accused her of stabbing the victim. She denied it and said she did not have a knife. The bouncer then threatened to harm her and threatened to fabricate evidence against her if she complained to police. The police then arrived and she handed the pepper spray over to them.
(c) The missing exhibits
[13] After the trial judge completed his charge to the jury and the jury had retired to begin their deliberations, court staff notified the trial judge that the trial exhibits were missing. By the next morning, the Crown had been able to reproduce most of the exhibits. However, the physical exhibits, including the victim’s blood soaked clothing, were missing, as were diagrams that the various witnesses had made during their testimony. These diagrams showed where the events occurred. The defence relied upon these exhibits for two propositions. First, it was argued that whoever stabbed the victim would have been covered with blood as shown by the amount of blood on the victim’s clothing. The appellant had only a very small spot of blood on her hand. Second, the defence argued that the stabbing took place during the second phase of the fight and she was not in the area at the time. The appellant relied on the diagrams to demonstrate this fact.
[14] The appellant’s counsel asked for a mistrial. The trial judge refused to grant the mistrial. The appellant argues that the trial judge erred in failing to grant a mistrial and in directing the jury on the effect of the missing exhibits. I will set out those directions below when I deal with that ground of appeal.
ANALYSIS
(a) Direction on the use of Waszek’s statement
[15] It is well established that an accused’s statement to the police that is not made in furtherance of any common design is evidence for or against only that accused. In a joint trial there is a risk that the jury may use a statement by one accused against a co-accused. In some circumstances the risk of misuse of the statement may be so substantial that the trial judge will direct separate trials. Where the accused are tried together, the trial judge is required to direct the jury as to the limited use of the statement. The law in this regard is reviewed in the dissenting opinion of Estey J. in R. v. McFall (1979), 48 C.C.C. (2d) 225 (S.C.C.).
[16] In this case, there were significant risks that the jury might misuse Waszek’s statement. Crown counsel at trial (not Ms. Thomas) cross-examined the appellant on the part of Waszek’s statement that seemed to suggest the three accused left the club together. The appellant disagreed with the statement and reiterated that she remained in the club with the victim’s group.
[17] In his jury address, counsel for Chetley suggested that the jury could use parts of Waszek’s statement to find that the bouncers were not credible. In pre-charge discussions it became apparent that this counsel’s view was that while inculpatory portions of a statement are admissible only against the accused who made it, exculpatory portions are available for use by a co-accused. He relied upon this court’s decision in R. v. Humphrey (2003), 172 C.C.C. (3d) 332. I will return to the Humphrey case below. Suffice it to say that the case stands for no such proposition.
[18] Early in his jury address Crown counsel stated that he would only use Waszek’s statement in relation to the case against her. However, in the course of his jury address, Crown counsel did not so confine his use of the statement. When he came to deal with the case against the appellant Crown counsel suggested that the jury should find that it was the appellant and not Waszek who stabbed the victim. Among the pieces of evidence Crown counsel relied upon was Waszek’s statement, in which she denied stabbing the victim, told the police what happened, and did not try to hide the pepper spray but rather turned it over to the police. He concluded this part of his address with this statement:
She [Waszek] tells Constable Nolan what happened. This is—these are not the actions, I would respectfully submit, of someone who has just stabbed someone.
This is simple math. There’s only one person left, and I’ve showed you how she [the appellant] could do it. It’s for you to find that she did do it.
[19] In his pre-charge submissions, counsel for Chetley took the position that the statement of Waszek, a co-accused, could be used as evidence in favour of his client. Nevertheless, the trial judge properly directed the jury as to the limited use of her statement. In his initial charge he said the following:
A special rule applies when someone testifies about something that one of the persons on trial said outside the courtroom. You may only use anything you find one person on trial said outside the courtroom for a limited purpose in deciding this case.
Anything you find a person charged said to a witness outside the courtroom, even if it describes what any other persons on trial said or did, is only evidence concerning the person who said it. You must not consider it in deciding the case of anyone other than the person who said it.
[20] Counsel for Chetley objected to that portion of the charge and reiterated his position that based on the Humphrey case, the statement was available for use in favour of his client. Eventually, the trial judge became convinced that Chetley’s counsel was correct and in his further instructions to the jury, given during his recharge, he said the following:
Jurors, you will recall in the course of submissions, there was a disagreement between Crown counsel and counsel for Mr. Chetley as to the utilisation of Ms. Waszek’s statement to Officer Nolan as evidence.
I direct you that, as the statement was introduced as part of the Crown’s case, the statement becomes evidence for all purposes including all accused.
[21] This was misdirection and Ms. Thomas did not argue otherwise. As stated in R. v. Suzack (2000), 141 C.C.C. (3d) 449 (Ont. C.A.) at para. 117, “[W]hen the Crown leads evidence of a statement made by one accused, the jury must be told that the statement is admissible only against the maker of the statement and cannot be considered in determining the co-accused's culpability”.
[22] Ms. Thomas submits, however, that the error did not occasion a substantial wrong or miscarriage of justice. I will deal with those submissions below, but I first wish to clarify the impact of the Humphrey case. Humphrey was charged with second-degree murder. He was tried alone. The Crown introduced statements that he had made to friends after the killing in which he admitted stabbing the deceased but that he did so in self-defence. Humphrey did not testify but relied upon self-defence. The trial judge told the jurors that they could use the inculpatory portions of the statement, but they could not use the exculpatory portions for their truth because they were unsworn hearsay. Humphrey was convicted of manslaughter and on appeal argued that the trial judge had misdirected the jury. Crown counsel conceded this was misdirection in view of the “established principle, that the statements were evidence for and against the appellant and that they could be considered in their entirety as original evidence” (Humphrey at para. 18). Moldaver J.A. writing for the court, at para. 19, referred to a portion of this court’s earlier decision in R. v. Lynch (1988), 30 O.A.C. 49 at 51:
The above direction [that the jury could only use the inculpatory portion of the appellant's statement] would have been appropriate if the exculpatory statements had been introduced by the appellant as part of his defence, on the ground that in those limited circumstances, the denials of knowledge of the drugs by the appellant were only admissible to rebut the suggestion of recent fabrication. But, where as in this case the exculpatory statements were introduced as part of the Crown's case, the jury should have been instructed that those statements became evidence for the accused as well as against him and that it was open to the jury to consider those statements as proof of the facts contained therein. The exception to the general rule against self-serving statements is founded on the principle that where the Crown introduces the statement, then it adopts that statement at least as evidence in the Crown's case. [Emphasis in original.]
[23] In this case, counsel for Chetley argued before the trial judge that Humphrey stood for the proposition that once the Crown introduces an accused’s statement it became evidence “for the accused”. But, these comments in Humphrey must be read in context. There was only one accused in Humphrey. Furthermore, there is no suggestion that this court intended to depart from the well-established rule that a co-accused’s statement to the police is only admissible for and against the maker of the statement. Admittedly, there have been some inroads into this rule. For example, in some circumstances an out-of-court statement by a witness may become admissible for its truth in the specific circumstances set out in R. v. B. (K.G.) (1993), 79 C.C.C. (3d) 257 (S.C.C.). But, Waszek did not testify[^1] and there was no suggestion in this case that any hearsay
exception applied to make Waszek’s statement admissible for use as evidence for or against her co-accuseds.
[24] Ms. Thomas argues that we should apply the proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46. She submits that the jury would have understood that they could only use the statement in favour of a co-accused and that the case against the appellant was overwhelming. She also points out that counsel for the appellant did not object to the recharge. In my view, this is not a proper case to apply the proviso.
[25] I do not agree with the respondent’s view of the strength of the Crown’s case against the appellant. Although the circumstantial evidence of Smith, Brook and Bundze suggested that the appellant stabbed the victim, there were serious frailties with this evidence. In particular, while it was open to the jury to accept Smith’s evidence that the appellant threatened to stab the victim, and later admitted to Brook that she stabbed him, a more plausible view of this evidence is that if, as Smith testified, a male and only one female were escorted from the club, that female must have been Waszek. In fact, there was significant circumstantial evidence making it more likely that it was Waszek who stabbed the victim. She was the one who became enraged at the victim and was ejected from the club. This would support the defence theory that the person uttering threats was not the appellant, but rather Waszek.
[26] There were also problems with Mr. Bundze’s evidence. His evidence as to how the fight progressed is inconsistent with other independent evidence that there were two stages to the fight. If the stabbing occurred in the second stage, the evidence would suggest the appellant was not the perpetrator. While he also claimed to have held the appellant for the police after the threat to him and the stabbing, no other witness could confirm this evidence.
[27] Had the jury been present for the various pre-charge and post-charge discussions they might very well have taken the view that the real dispute was whether Waszek’s statement was available for use in favour of Chetley. However, they were not present for those discussions and the redirection was in the broadest terms. It could only be taken and understood by the jury as a correction of the earlier [correct] direction in the main charge that, “You must not consider it in deciding the case of anyone other than the person who said it.” This is especially the case since Crown counsel cross-examined the appellant on a portion of the statement and relied upon it in his closing to show that the appellant was the person who stabbed the victim.
[28] The appellant testified and denied uttering the threats and stabbing the victim. If her evidence raised a reasonable doubt she had to be acquitted. The statement was admissible for and against Waszek but was not admissible for any purpose to incriminate the appellant. Although tried in a joint trial she was entitled to have her culpability determined only on the basis of evidence properly admissible against her. See R. v. Suzack at paras. 117-127.
[29] In my view, the fact that counsel for the appellant did not object to the recharge is not fatal to this ground of appeal. Counsel for the appellant had earlier stated the proper rule. It is apparent that he, like all the other counsel at the trial and like the trial judge became convinced that Humphrey stood for the proposition suggested by Chetley’s trial counsel.
[30] Finally, it is significant that this misdirection came in the course of a recharge and a day after the correct direction in the main part of the charge. This misdirection was one of the last things that the jury heard from the trial judge before delivering their verdict. It was essential that the recharge be correct. See R. v. W. (D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.) at 411. I would order a new trial on the basis of this error alone.
(b) The charge on identification evidence
[31] While the Crown’s case against the appellant substantially depended on the testimony of Mr. Bundze, his evidence was bolstered by the testimony given by Mr. Smith during which he identified the appellant as threatening the victim. The appellant submits that the directions concerning Mr. Smith’s evidence were inadequate. In his charge to the jury, the trial judge pointed out that the case against the appellant depended upon eyewitness evidence. He gave a lengthy instruction to the jury about the frailties of eyewitness identification and pointed out in general terms the considerations the jury should take into account. He also indicated that the various observations were made inside a crowded and noisy nightclub and then outside in the context of a brief fight with a lot of people yelling and screaming.
[32] The appellant submits that the trial judge should have pointed out the specific problems with Mr. Smith’s evidence. In particular, the trial judge should have mentioned that Mr. Smith had not given any description to the police of the person he remembered threatening the victim at the time, and apparently identified the appellant for the first time when she was in the dock during the trial. Furthermore, the appellant says that a special instruction was required because of the dock identification along the lines discussed in R. v. Hibbert (2002), 2002 SCC 39, 163 C.C.C. (3d) 129 (S.C.C.). Mr. Campbell points out that trial counsel repeatedly asked for such an instruction.
[33] The difficulty with this submission is that it is simply not clear when Smith first identified the appellant as the woman who threatened to use the knife. For example, it was never put to Smith in cross-examination that he did not identify the appellant in some manner, by description or otherwise, in the statement that he gave to the police while he was waiting to testify at the preliminary inquiry. It may be that Smith first identified the appellant at the trial, but the record is unclear on the point.
[34] Given the absence of clarity, in my view, the trial judge should have dealt with an aspect of Crown counsel’s jury address. In his jury address, Crown counsel said the following about Mr. Smith’s failure to identify the appellant on an earlier occasion:
Now, this wasn’t discussed in my friend’s submissions, but you might be wondering why there wasn’t a photo lineup conducted. And hindsight’s 20/20, but ladies and gentlemen, if Mr. Smith had picked out Ms. Parberry in a photo lineup like the ones you saw that Mr. Patel did, and later the evidence came out that he knew this person that Ms. Parberry knew, that identification in the photo lineup would be tainted, because he may have seen her with this other person they’d both known together.
I’d suggest to you that it actually enhances his credibility and reliability that still today, two years after the event, he’s still able to identify her. In his statement that he gave to police, he identifies a female. He doesn’t name the female because he doesn’t know anyone’s name.
[35] Whatever else may be said about Smith’s evidence, it certainly did not gain in reliability because he did not identify the appellant until the trial. Therefore, in view of Crown counsel’s statement, it was incumbent upon the trial judge to give the jury a special instruction about the frailties of Smith’s evidence if they found that Smith first identified the appellant when she was in the prisoner’s dock. I say this notwithstanding the very valid point made by Crown counsel, that the appellant and Waszek were apparently quite different in appearance. However, Smith could have been mistaken and only recognized the appellant because of a previous encounter with her, not because she was the female who uttered the threats.
(c) Loss of the exhibits
[36] A quite remarkable event occurred in this trial when the exhibits went missing after the charge to the jury, before the jury had a chance to examine them in the course of their deliberations. It seems that the exhibits may well have been stolen. There is absolutely no suggestion that the appellant bore any responsibility for the loss of the exhibits.
[37] The appellant submits that the trial judge should have declared a mistrial because the loss of the exhibits caused irremediable prejudice to her defence. She also argues that the trial judge erred by effectively leaving it to the jury to decide for themselves whether there should be a mistrial.
[38] A trial judge’s decision to refuse to grant a mistrial is entitled to substantial deference and I would not overturn the trial judge’s decision to refuse a mistrial in this case. While the missing exhibits, especially the diagrams and the victim’s bloody clothing were important to the defence, their loss did not undermine the appellant’s right to make full answer and defence. The jury still had the witnesses’ descriptions about where the fight took place, and their testimony as to the blood on the victim’s clothing. The diagrams were an aid to understand the testimony better but their loss did not undermine the defence nor make the testimony inaccessible. The trial judge told the jury that the court reporter could play back or read back any of the testimony concerning any missing exhibit.
[39] Despite my conclusion regarding the decision not to order a mistrial, I agree with Ms. Cunningham for the appellant that the trial judge should not have left it to the jury to decide whether there should be a mistrial. Unfortunately, I think that is the effect of the following direction:
Jurors, I am faced with a dilemma because of this most unfortunate accident in respect of the exhibits. I am prepared that this trial continue, with you continuing in your deliberations, and arriving at a decision or decisions if you see that you are able to properly and fairly do so as the triers of fact, notwithstanding the absence of missing exhibits.
Jurors, you are the triers of fact. We have replicated and replaced the exhibits so far as possible at this point in time. This is the best evidence possible at this point in time, but clearly there are some missing exhibits which cannot be replaced. These are important exhibits. You have heard all the testimony, you have seen all the exhibits, including the missing exhibits, in the course of the trial.
I emphasize, jurors, you have the option of not proceeding in making a decision on any or all counts, and in respect of any and all accused if, in your view, a proper and fair decision on all the evidence cannot be made. You have this option at any point in your deliberations.
I ask you to be particularly mindful of this direction, being, if for any reason you are of the view, at any point in your deliberations, that any missing exhibit is necessary for your viewing and examination as a pre-requisite to a fair and proper decision, you must not make any decision. This approach is the only fair one, both to the accused and to the community at large, and is the only approach possible that is in accordance with your oath.
[40] Whether or not the appellant’s right to make full answer and defence had been so seriously impacted that there should have been a mistrial was a question of law for the judge, not a question of fact for the jury. In my view, in addition to telling the jury of the help he and the court reporter could provide, the trial judge should have reminded the jury that a reasonable doubt, “is logically derived from the evidence or absence of evidence.” See R. v. Lifchus (1997), 118 C.C.C. (3d) 1 (S.C.C.) at para. 39. For example, if because of the loss of the exhibits the jury was unsure where the stabbing took place, the jury would have to take this factor into account in reaching its decision. Since he decided not to direct a mistrial, the trial judge should not have left that issue up to the jury.
[41] In view of my conclusion on the first ground of appeal, I need not decide whether standing alone this misdirection required a new trial.
DISPOSITION
[42] Accordingly, I would allow the appeal, set aside the convictions and order a new trial.
Signed: “M. Rosenberg J.A.”
“I agree K.M. Weiler J.A.”
“I agree E.E. Gillese J.A.
RELEASED: “KMW” November 3, 2005
[^1]: I should not be taken as holding that if Waszek had testified and recanted her statement the principle in R. v. B. (K.G.) could apply and make her statement available for its truth in relation to the accused. The issue is a complicated one and simply does not arise in this case.