R. v. Casey 2005 OCA mini 444

DATE: 20050617

DOCKET: C41304

COURT OF APPEAL FOR ONTARIO

WEILER, SIMMONS and GILLESE JJ.A.

B E T W E E N :

Her majesty the Queen

Peter W. S. Copeland

for the appellant

Respondent

• and -

JONATHAN DAVID CASEY

Robert Gattrell

for the respondent

Appellant

Heard: June 14, 2005

On appeal from the conviction entered on October 24, 2003 and the sentence imposed December 12, 2003 by Justice Terrence L. J. Patterson of the Superior Court of Justice, sitting alone.

BY THE COURT:

NATURE OF THE APPEAL

1The appellant was convicted of robbery with a firearm, being disguised with the intent to commit an indictable offence, and possession of a prohibited firearm, by Patterson J. on October 24, 2003. The appellant appeals against both his conviction and sentence. With respect to the appeal against conviction, the appellant submits that the trial judge misapprehended his evidence as well as that of the forensic fingerprint expert. Relying on R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.) and Regina v. Lohrer (2004), 2004 SCC 80, 193 C.C.C. (3d) 1 (S.C.C.), the appellant submits that these misapprehensions of the evidence were material to the trial judge’s reasoning and played an essential part in his conclusion that he was guilty. As a result, the appellant submits that there has been a miscarriage of justice pursuant to s. 686(1)(a)(iii) and that it is not therefore open to this court to apply the proviso.

FACTS

2In the late evening of January 4, 2003 and early morning of January 5, 2003, Charlene Knapp’s home in Windsor was robbed by a masked intruder wielding a sawed-off shotgun. Just prior to the door being forced in, a man unknown to Ms. Knapp had knocked on that same door purporting to be looking for someone named “Brian.” Ms. Knapp had a brief conversation with the man at her door, which lasted less than ten seconds and which occurred under poor lighting conditions

3Police were notified and arrived on the scene soon thereafter. Upon questioning by the police, Ms. Knapp described what she had observed of the man’s appearance and dress.

4Ms. Knapp informed police that the assailant had left her home on foot carrying three bags (two duffel bags and a knapsack) of stolen property and that she had last seen him heading east on the nearby railway tracks in the direction of Pillette Road. Police encountered the appellant approximately one hour later on Pillette Road, a few bocks north of the railway tracks that had apparently been traveled by the robber.

5When police came across the appellant behind a local convenience store, he made no attempt at flight. He was wearing clothes that largely matched the description given by Ms. Knapp. One officer, Constable Evans, described the appellant as being out of breath and testified that his legs were wet and his cuffs were covered in snow. Officers searched an adjacent alley and located the bags of stolen property, which included the shotgun and mask, in addition to a bandana that was later found to have the appellant’s DNA on it and a black garbage bag that the fingerprint expert testified bore the appellant’s fingerprints.

6The appellant was not found to be in possession of a photograph of Ms. Knapp’s boyfriend, which she had informed police the perpetrator had taken and put in his pocket. Nor did he have a cell phone, although Ms. Knapp stated that the intruder appeared to be communicating with someone outside. One of the bags found near the appellant did have a two-way radio, but such a device broadcasts incoming transmissions aloud, so Ms. Knapp would have been able to hear it.

7Finally, police found a footprint in the snow outside of Ms. Knapp’s residence that matched the bottom of the appellant’s Terra boot. However, one of the officers who testified at the appellant’s trial agreed that this was a very popular shoe in the area and that he himself had been considering buying a pair. Only two “useable” prints were located on the bags of stolen property. These prints matched the appellant. A third partial print was ruled out as belonging to the appellant although it was not of sufficient quality to give rise to a positive identification of anyone else.

8The appellant denied any involvement in the robbery. He indicated that he had been at another house in the vicinity of the location at which he was apprehended. He testified that he found the bags of stolen property in an alley and that although he knew they were likely stolen, he planned to sell their contents in order to acquire some money for himself. The appellant testified that he did not recall seeing the black garbage bag upon which his two fingerprints were located although he stated that he had searched through several bags and that it was possible his fingerprints had gotten there that way.

9In his reasons for judgment, Patterson J. found that although there were problems with Ms. Knapp’s identification evidence, he was satisfied that her description had “compelling weight”. He further applied the doctrine of recent possession to draw an inference of guilt from the appellant’s possession of the stolen property. He rejected the appellant’s evidence, that he had found the garbage bags containing the stolen items, as incredible in the context of all the circumstances.

10The trial judge convicted the appellant and sentenced him to six years and three months imprisonment.

ISSUES

The appellant’s evidence

11In his reasons, the trial judge found it “telling” that when asked about how he wore the knapsack containing some of the stolen items, the appellant had responded that he had worn the knapsack “on my back where I usually wear it.” The transcripts show that in fact, the appellant stated he wore the backpack, “how you usually wear it”.

12The trial judge found that the appellant’s evidence amounted to a “significant inadvertent admission” that the backpack belonged to him. In making this finding, the trial judge misapprehended the appellant’s evidence and used that misapprehension as not only negating the appellant’s explanation of how he came to be in possession of the stolen property but also as positive evidence against him.

13In addition, the trial judge misapprehended the appellant’s evidence respecting a blue bandana found in the bag. He stated:

Mr. Casey testified he was sweating from carrying the three bags to behind the convenience store, and that he must have wiped his brow on the blue bandanna that was in one of the bags, and which was positively identified as having his DNA on it.

14The appellant testified that on the walk to Ace Convenience from where he found the bags, he was sweating and that he had to wipe his face several times with his hand. He denied wiping his face with the blue bandanna. He did testify that he had rummaged through the items in the bag, of which one item, was a blue bandanna. The inference he left with the court was that somehow sweat was transferred from his hands to the bandanna.

15In relation to the expert’s evidence regarding fingerprints, the trial judge held that “despite the fact that the DNA specialist indicated that because a person may touch an item, a print may not necessarily appear, it is my opinion that it would be highly unlikely that Mr. Casey could touch all of the items … without leaving fingerprints other than two single prints of his right index finger on a folded black garbage bag.”

16Constable Lamont’s evidence was that there were only two prints that he thought “were clear enough to possibly compare and identify”. His evidence is also clear that he looked at the garbage bag to find impressions that were “suitable for comparison.” Constable Lamont’s evidence was focussed on usable prints not that there were only two prints in total.

17The trial judge’s reasons reflect a conclusion that the appellant left only two markings on the bags while rummaging through their contents, when in fact the officer did not testify to how many markings were left.

18The Crown agrees that the trial judge misapprehended the evidence with respect to the backpack and the bandana. He does not concede that the trial judge misapprehended the fingerprint evidence. In any event, the Crown submits that the misapprehensions went to the rejection of the appellant’s evidence and that the misapprehensions were only some of the individual reasons why the trial judge rejected the appellant’s evidence.

19We disagree. Although, the trial judge expressed a number of reasons for rejecting the appellant’s evidence he did not say that each reason was a free‑standing basis for his conclusion. The misapprehensions, especially when viewed cumulatively, were material to the trial judge’s reasoning and the errors played an essential part in his reasoning process respecting the doctrine of recent possession and led to his conviction. The comments were not just in the narrative of the judgment but formed part of the reasoning process resulting in conviction. It is also significant in our view, that the trial judge’s misapprehension of the backpack evidence created positive evidence against the appellant. We would give effect to this ground of appeal.

20In view of our conclusion, it is unnecessary to deal with the other grounds of appeal. We would allow the appeal and order a new trial.

RELEASED: June 17, 2005 (“KMW”)