COURT OF APPEAL FOR ONTARIO
SHARPE, SIMMONS JJ.A. AND PARDU J. (ad hoc)
B E T W E E N :
Richard Litkowski
HER MAJESTY THE QUEEN
for the appellant Muhammed Malik
Brian McAllister
(Respondent)
and Catriona Verner
for the appellant Naveed Malik
- and -
MUHAMMED SHAHID MALIK
John Corelli
for the respondent
(Appellant)
A N D B E T W E E N:
HER MAJESTY THE QUEEN
(Respondent)
– and –
NAVEED ANJUM MALIK
(Appellant)
Heard: January 31, 2007
On appeal from the conviction entered by Justice Thomas M. Dunn of the Superior Court of Justice sitting with a jury on March 10, 2005.
BY THE COURT:
1Muhammad Malik and Naveed Malik appeal their convictions for first degree murder following a joint trial before Dunn J. sitting with a jury.
2The deceased, Zahid Iqbal, was beaten to death by two men wielding baseball bats as he walked to his car in the parking garage of his Brampton apartment building on November 20, 2002. At trial, both appellants conceded that they are guilty of manslaughter. Further, there was no dispute that Muhammad planned to assault Iqbal. The contested issues were whether the appellants intended to kill Iqbal and, if they did, whether the killing was planned and deliberate, and if it was, whether Naveed was in on the plan.
3The appellants relied, in part, on the testimony of a Crown witness, Suhail Qaiser, who accompanied them to the scene but remained in the car during the beating. According to Qaiser, prior to the incident Muhammad told Qaiser that he was going to beat someone up and break someone’s legs and immediately after the incident Muhammad said he kicked his ass, he broke his leg. Qaiser also testified that on the night of the beating after he told Muhammad the victim had died, Muhammad said, “I don’t mean to kill him. I just went there, you know, and break his leg. Somehow, you know, hit him on the head; he die.”
4Naveed also relied on Qaiser’s testimony that Muhammad was the clear leader and that neither he nor Naveed knew of Muhammad’s plans prior to the attack.
Muhammad Malik’s Appeal
5Muhammad raised one issue on appeal. He submitted that since none of the evidence at trial pointed to a planned and deliberate murder as opposed to an assault, even when considered cumulatively, the Crown’s evidence against him of planning and deliberation was insufficient to support a verdict of first degree murder. We disagree.
6There was ample evidence at trial to support the conclusion that Muhammad planned to attack Iqbal. For example, the evidence indicated that Muhammad contacted or attempted to contact Iqbal by telephone repeatedly between August and November 2002; that he had directions to Iqbal’s apartment in his bedroom; that he was involved in purchasing both baseball bats used in the attack shortly before the incident; that he rented a second car on November 20, 2002 and had Qaiser drive his (Muhammad’s) car to Brampton; that he, Naveed and Qaiser, went to Brampton in the morning on November 20, 2002 and drove by Iqbal’s apartment several times prior to the attack; and that he was familiar with the layout of the parking garage and instructed Naveed and Qaiser to place the bats in garbage bins immediately prior to the incident.
7In addition to this evidence, there was evidence demonstrating that the beating involved a minimum of four blows to the head and was over in seconds. Further, an eyewitness to the attack described seeing two men with bats walking casually and then starting to run. The eyewitness saw one of the men hold his bat over his head and then strike down at the person lying on the ground and hit him in the face. As a result of the attack, Iqbal’s face was crushed and his brain was pulpified. Moreover, all of his injuries were located between the root of his nose and the top of his head.
8Further, there was some evidence at trial indicating that Muhammad understood Iqbal was or had been his sister’s boyfriend but that Iqbal planned to marry a woman in New Jersey. Finally, the Crown tendered evidence of various telephone intercepts and electronic probes. In one of the intercepts, Muhammad told his older brother, “the crime was committed very brutally” and “we tried to kill him fairly”.
9Despite Qaiser’s evidence of Muhammad’s statements indicating he planned only to assault Iqbal, in our view, it was open to the jury to infer that Muhammad planned and deliberated Iqbal’s murder. In particular, the combined effect of the evidence that Muhammad stalked the deceased, the suddenness and brutality of the attack, the fact that Iqbal suffered no injuries to any part of his body other than his head, the evidence of a possible motive and Muhammad’s statement to his older brother, “we tried to kill him fairly” was sufficient to support a verdict of first degree murder.
10Muhammad’s appeal is accordingly dismissed.
Naveed Malik’s Appeal
11Naveed raised five issues on appeal. We did not call on the Crown to respond to Naveed’s claims that the trial judge erred in admitting evidence of Iqbal’s statements to a co-worker that he planned to marry a woman named Malik; in failing to instruct the jury in accordance with the principles set out in R. v. W.(D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.) and to relate that instruction to potentially exculpatory evidence; and in leaving the offence of first degree murder with the jury vis-à-vis Naveed.
12In our view, the trial judge made no error in relying on the innocuous character of Iqbal’s statements and the circumstances in which they were made to find that there was a sufficient circumstantial guarantee of trustworthiness to justify their admission. Moreover, there was other evidence introduced at the trial tending to support the reliability of these statements. In the light of R. v. Khelawon, 2006 SCC 57, the existence of that evidence supports the trial judge’s ruling.
13Neither appellant testified at trial. However, given that aspects of Qaiser’s evidence and a videotaped statement were capable of supporting Naveed’s position that he was guilty only of manslaughter, in our view, it would have been preferable had the trial judge given the jury a modified W.(D.) instruction. Nevertheless, the trial judge provided a proper reasonable doubt instruction and also instructed the jury that conflicting evidence is capable of creating a reasonable doubt. In these circumstances, a W.(D.) instruction was not mandatory. Moreover, we see no air of reality to Naveed’s claim that the jury would not have understood that they were obliged to convict him of a lesser offence if they accepted the evidence exculpating him of first degree murder.
14As for Naveed’s claim that the trial judge erred in leaving first degree murder with the jury and that the verdict of first degree murder is unreasonable vis-à-vis him, in our view, there was sufficient evidence to support the verdict.
15In particular, there was evidence indicating Naveed was present when the baseball bats were purchased, when his brother rented a second car and when the three men travelled to Brampton on November 20, 2002, passed by Iqbal’s apartment several times and finally attended at the parking area to carry out the attack. On Muhammad’s instructions, he and Qaiser hid the baseball bats in a garbage bin immediately prior to the attack. According to Qaiser, soon after hiding the baseball bats Naveed called to Muhammad, “come, come, he’s here”. Naveed and Muhammad then retrieved the bats, walked casually at first and then began to run towards Iqbal. When the evidence of these facts is combined with the swiftness and brutality of the beating, the lack of injuries to any part of Iqbal’s body other than his head, and evidence indicating that Naveed knew his sister had a relationship with Iqbal, in our view, there was sufficient evidence to support a verdict of first degree murder.
16A fourth issue raised by Naveed is that the trial judge erred in failing to grant his severance motion. Moreover, having refused that motion, the trial judge further erred in failing to provide the jury with a sufficient caution against using statements made by Muhammad against Naveed and, in particular, in failing to properly explain the limited circumstances in which a statement referred to by Crown counsel in his closing address could be used against Naveed.
17We reject Naveed’s claim that this was an appropriate case to depart from the presumption that co-accused should be tried together. He relies primarily on what he says was the extreme prejudice arising from certain intercept evidence that was admissible only against Muhammad. However, although the intercept evidence was not admissible against Naveed, it was admissible to demonstrate that Muhammad committed a planned and deliberate murder. Since it was the Crown’s theory that Naveed joined in Muhammad’s plan, proving that Muhammad had a plan would be an important element of the Crown’s case against Naveed even if a severance were granted.
18In any event, in our view, this was a case in which any potential prejudice arising from the risk that the jury would misuse the intercept evidence could be cured by proper jury instructions. Further, based on the evidence we have pointed to in relation to Naveed’s claim that the verdict against him was unreasonable, we do not accept his submission that the Crown’s case against him was marginal or that there was such an imbalance in the evidence that a severance was required.
19As for Naveed’s submission that the trial Crown invited the jury to misuse the evidence of Muhammad’s intercepted statements against Naveed and that the trial judge failed to caution the jury adequately against such misuse, we note that the trial judge instructed the jury repeatedly, both in general and by reference to specific statements, that out-of-court utterances made by one of the appellants were not admissible against the other.
20Finally, we accept the Crown’s submission on appeal that further clarification of the circumstances in which the jury could use a statement referred to by Crown counsel in his closing address against Naveed would not have inured to Naveed’s benefit.
21The trial Crown’s comments were to the effect that Muhammad said he was going to buy a bat for Naveed at a point when Muhammad, Qaiser and Naveed were together in the car. Shortly thereafter, the trial Crown asked rhetorically, “Why would Muhammad Malik be buying a bat for Naveed Malik on November 16th? Because Naveed Malik was in on it.” The trial Crown also questioned whether Qaiser’s evidence that neither he nor Naveed knew about the plan to kill Iqbal made sense in the light of Muhammad’s statement and the purchase of the bats. Naveed says the trial judge erred by failing to instruct the jury that they could only use this statement against him if they were satisfied that it was said in his presence and that he heard it and in some way adopted it.
22Given Qaiser’s testimony on the issue, in our view, the likely inference was that Naveed was in the car when the statement was made. Moreover, given the evidence that Naveed went on two subsequent shopping excursions to purchase bats, participated in hiding the bats at the parking garage, and used one of the bats to strike Iqbal in the head in a swift and brutal attack, in our view, there was a compelling inference that Naveed was aware of Muhammad’s plan to kill Iqbal even without the statement. Repeating these facts so that the jury could determine whether Naveed acted on the statement would not have inured to his benefit. Moreover, we note that the statement itself suggested nothing about whether there was a plan to kill Iqbal as opposed to simply assault him.
23We would not give effect to this ground of appeal.
24A fifth issue raised by Naveed is that the trial judge erred in his instructions to the jury on aiding a first degree murder. Naveed says that, on the facts of this case, it would not be unreasonable to infer that he did not realize Muhammad was planning to kill Iqbal until he saw Muhammad strike the first blow and that it was only at that point that he decided, on impulse, to participate in the killing. While he acknowledges that the instructions given by the trial judge on aiding were legally correct, he submits that, in the circumstances of this case, the trial judge was obliged to go further and instruct the jury explicitly that to find him guilty of first degree murder as an aider, the jury had to be satisfied that he knew of the existence of and the contents of the plan in advance of the murder. Further, Naveed submits that two questions the jury asked suggest they were struggling with this very issue.
25We do not accept these submissions. The Crown’s theory was that Naveed was in on a plan to murder Iqbal from the time the baseball bats were purchased. As we have noted, the evidence at trial indicated that the entire attack was over in seconds. In these circumstances, in our view, the jury instructions on aiding and abetting were entirely adequate. There is no air of reality to the suggestion that the jury found Naveed guilty of first degree murder by concluding that Naveed only realized Muhammad was planning to kill Iqbal after Muhammad struck the first blow. We do not accept the submission that the jury’s requests to have repeated the trial judge’s explanations of “planned and deliberate” and of “aiders with respect to planned and deliberate” suggest that they were considering this hypothetical possibility.
26Accordingly, we would not give effect to this ground of appeal. Naveed’s appeal is therefore dismissed.
RELEASED: February 23, 2007 “RJS”
“R.J. Sharpe J.A.”
“Janet Simmons J.A.”
“Pardu J. (ad hoc)”
