COURT OF APPEAL FOR ONTARIO
Doherty, Moldaver and Cronk JJ.A.
BETWEEN:
Her Majesty The Queen
Respondent
and
Karmugan Lorens Palarajah and Sujenth Ulaganathan
Appellants
Vincenzo Rondinelli for the appellant Palarajah
Joseph Di Luca for the appellant Ulaganathan
James K. Stewart for the respondent
Heard: September 22, 2010
On appeal from convictions entered by Justice Eugene Ewaschuk of the Superior Court of Justice, sitting with a jury, dated December 16, 2006. Mr. Palarajah also appeals from the sentence imposed by Justice Ewaschuk, dated January 11, 2007.
ENDORSEMENT
1The appellants appeal from their convictions for second degree murder. They raise four grounds of appeal, one of which relates solely to the appellant Palarajah. Palarajah also appeals against sentence. He submits that the trial judge erred in raising the period of his parole ineligibility from 10 to 17 years.
OVERVIEW
2On October 8, 2003 at about 8:30 p.m., Janakan Sivalingam (the deceased) was set upon by a group of assailants who attacked him with baseball bats, an axe and a machete. His attackers emerged, with a number of other young men, from three vehicles that pulled up beside the parking lot of a mall where the deceased and his friends were congregating. The assailants were looking for another man, Lingathasan Suntharamoorthy (Pay) who turned out not to be there. The deceased and his friends fled when they were set upon. The deceased, who was a friend of Pay’s, ran towards the entrance of a high school across the road. Unfortunately, he was unable to escape and he was savagely attacked and died as a result of his wounds. His attackers then fled in three vehicles, one of which was a Pontiac Grand AM that had been rented by the girlfriend of a third co-accused, Gobinath (Gobi) Suntharalingam. The evidence implicating Gobi in the crime was weak and the jury acquitted him.
3The appellants were charged with first degree murder but the jury returned verdicts of second degree murder against both of them.
4It was the primary position of the Crown that the appellants, along with others, had plotted to murder Pay and that in executing their plan, they killed the deceased under the mistaken belief that he was Pay. Alternatively, the Crown maintained that when the appellants and their cohorts realized that Pay was not in the parking lot, they spontaneously chose to attack and kill the deceased, who was a friend of Pay, thereby rendering them liable for second degree murder. It is apparent from their verdicts that the jury accepted the second of these two scenarios.
5The appellant Palarajah testified. He admitted that he was present at the scene and acknowledged that he was among the assailants who surrounded the victim. He maintained, however, that his role was that of peacemaker and that he tried to stop his friends from assaulting the deceased when he realized that the deceased was not Pay. He said that he accidentally received a wound to his foot during the melee. He claimed that he and his friends had come to confront Pay but not to harm him. By its verdict, it is apparent that the jury rejected his evidence.
6The appellant Ulaganathan did not testify. There was both direct and circumstantial evidence placing him at the scene of the assault. The appellant Palarajah provided direct evidence of his presence at the scene. In his testimony, Palarajah identified Ulaganathan as the driver of the white Pontiac Grand AM. Ulaganathan’s fingerprints were recovered from the rear view mirror and the outside front passenger door of the Pontiac. Other evidence established that after the assault, Ulaganathan drove the injured Palarajah and another man to the apartment occupied by Gobi’s girlfriend. By its verdict, it is apparent that the jury concluded that Ulaganathan was a party to the murder. His role was to drive the assailants to the scene and then to further their escape by acting as the getaway driver.
CONVICTION APPEALS
(1) The trial judge’s instructions to the jury on reasonable doubt
7The appellants maintain that the trial judge failed to provide the jury with meaningful instructions on reasonable doubt, particularly when he was distinguishing between proof beyond a reasonable doubt and proof on a balance of probabilities. They claim that the trial judge failed to link proof beyond a reasonable doubt with the notion of “being sure” or “certain” and that in using the numerical figure of 51% in describing proof on a balance of probabilities, he potentially confused the jury as to what percentage would establish proof beyond a reasonable doubt. The appellants further contend that in response to a request from the jury to clarify the meaning of reasonable doubt, the trial judge erred by simply repeating, almost verbatim, his original instructions on reasonable doubt. They further claim that in responding to the jury’s question, the trial judge erred by failing to explicitly advise the jury that further clarification would be provided if required.
8We would not give effect to these submissions. In our view, read as a whole, the trial judge’s instructions on reasonable doubt do not raise a concern that the jury would have misunderstood the correct criminal standard of proof.
9In his charge, the trial judge distinguished between proof on a balance of probabilities and proof beyond a reasonable doubt, saying:
Proof on a balance of probability, the lesser standard, is attained at 51% of possibility; whereas, proof beyond a reasonable doubt, the criminal standard falls much closer to certainty than it does proof on a balance of probability.
However, it is important to keep in mind that it is rarely possible to prove anything with absolute or mathematical certainty, and so the burden of proof on the Crown is to prove guilt beyond a reasonable doubt but not – I repeat – but not beyond any conjectural or speculative doubt whatsoever.
10In response to the jury’s question seeking further guidance on the concept of reasonable doubt, the trial judge repeated his initial instructions but added that “proof to a certainty is attained at 100% of possibility”. With that addition, he repeated his original instruction that proof beyond a reasonable doubt falls much closer to a certainty than it does to proof on a balance of probabilities.
11In light of the reinstruction, we see no merit in the appellants’ submission that the jury would have been confused about the numerical percentage needed to achieve proof beyond a reasonable doubt. While it would have been preferable had the trial judge added that the jury could only convict if they were “sure” that the accused were guilty, that instruction was not mandatory.
12With respect to the manner in which the trial judge responded to the jury’s question, on the facts of this case, it was perfectly proper for the trial judge to repeat essentially what he had told the jury in his original instructions. In this respect, we note that the trial judge did not provide the jury with a copy of his charge and he was entitled to treat their question as a request to repeat his original instructions. Manifestly, the jury was aware that if confusion or concerns remained following the reinstruction, further clarification could be sought. This is apparent from the fact that shortly after the reinstruction, the jury asked for and received a written transcript of the trial judge’s reinstruction.
13In the circumstances, there is no reasonable likelihood that the jury misunderstood the proper standard of proof that was to be applied. Accordingly, this ground of appeal fails.
(2) Instructions on the right of jurors to disagree
14The trial judge in his original instructions told the jury that they had the right to disagree. The instruction in this regard was short and to the point but there is no reason to believe that it failed to serve its intended purpose. None of the three defence counsel who were present in the courtroom and listening to the charge raised an objection. Had they, or any of them, been concerned that the jury may not have understood such a basic principle, surely an objection would have been registered.
15In the course of deliberating, the jury asked a question, the essence of which was that while the jury knew it had to be unanimous to convict, did it also have to be unanimous to acquit.
16The trial judge properly responded to that question. However, in doing so, he did not remind the jury that they had the right to disagree and not reach a verdict.
17The appellants submit that the trial judge’s response may have left the jury with the impression that they had to arrive at a verdict, one way or the other, and that they did not have the right to disagree should they be unable to do so.
18We would not give effect to this ground of appeal. In our view, the question posed had nothing to do with the jury’s right to disagree. On the contrary, the jury simply wanted to know whether they had to be unanimous to return a verdict of acquittal – as they had to be to return a guilty verdict.
19We consider it implicit in the jury’s question that the jury was aware that they could disagree respecting the guilt of the accused but they were unclear whether such disagreement would lead to an acquittal, or whether unanimity was required to arrive at that result as well. The trial judge correctly answered the narrow question posed by the jury. Counsel at trial raised no objection to the trial judge’s response. Indeed, they appeared to agree with the wording of the trial judge’s answer. While a failure to object may not always be determinative, once again, the fact that three competent defence counsel were not concerned that the trial judge’s response may have left the jury with a misunderstanding about their right to disagree belies the appellants’ suggestion, raised for the first time on appeal, that the jury may have been unclear on this crucial issue.
(3) Instructions pertaining to the issue of mistaken identity of the victim
20The trial judge initially charged the jury that “mistaken identity or even ignorance of the deceased’s true identity is not a defence to murder”. However, after hearing submissions from counsel on the issue of mistaken identity and its relationship to planning and deliberation, the trial judge reinstructed the jury on this point. He explained to the jury that if the accused became aware that Pay was not at the mall parking lot and decided on the spur of the moment to kill one of his friends, then none of the accused could be guilty of first degree murder on the basis of planning and deliberation; rather, they could only be found guilty, at most, of second degree murder. The jury was told that in order to find the accused guilty of first degree murder on the basis of planning and deliberation, it was necessary for the Crown to prove that in executing their plan, the accused believed that their intended victim was Pay. Defence counsel raised no objection to these clarifying instructions.
21In the result, the jury found the appellants guilty of second degree murder. In so concluding, the jury must have been of the view that the killing of the deceased occurred in the context of a spontaneous change of plan when the assailants, including the accused, realized that Pay, their intended victim, was not present.
22The appellants submit for the first time on appeal that the trial judge failed to explain, in his clarifying instructions, how mistaken identity could lead to a conviction for manslaughter or a verdict of acquittal for an accused who did not participate directly in the assault but whose guilt stood to be determined on the basis of party liability. The Crown acknowledges that if there was a spontaneous change of plan on the part of the principal assailants, as the jury apparently found, then the aiders and abettors, including the appellant Ulaganathan in his role as getaway driver, would only be guilty of second degree murder if they knew about the spur of the moment decision to kill the deceased and did something for the purpose of aiding the killing.
23The trial judge did not provide further instructions on party liability; nor was he asked to do so. The Crown accepts that further instructions could have been given. However, the Crown argues that they were not necessary because the jury had already been fully instructed on the various ways in which the non-assailants could be found liable as parties and there is no reason to believe that the jury did not apply those instructions in assessing the spontaneous killing scenario.
24We agree with the Crown. The jury had all the tools it needed to properly assess the liability, if any, of those accused who did not participate directly in the assault but who aided or abetted the killing of the deceased. Importantly, both appellants took the position at trial that they knew that the person who was being assaulted was not Pay. The appellant Palarajah claimed that he interceded as a peacemaker when he realized that the deceased was not Pay. The jury obviously rejected his evidence to that effect. As for the appellant Ulaganathan, he remained at the scene while the assault took place and performed the role of getaway driver, thereby enabling the assailants to make good their escape. It was open to the jury to find that he did so purposefully, especially since there was nothing to suggest that he did anything different once he realized the assailants had decided to attack the deceased in place of Pay. As such, the evidence amply substantiates his conviction for second degree murder as a party to the offence under ss. 21(1)(b) and (c) of the Code. There is no reason to think that the jury did not follow this line of reasoning in convicting Ulaganathan of second degree murder. Accordingly, we would not give effect to this ground of appeal.
(4) Instructions on the defence of abandonment
25The appellant Palarajah’s primary position before the jury was that he intended no harm to Pay. If the jury rejected this claim, Palarajah maintained that the defence of abandonment was open to him because when he realized that the deceased was not Pay, he took steps to prevent or terminate the attack on the deceased.
26The trial judge left the defence of abandonment to the jury. However, in doing so, he did not instruct the jury that the timely communication of an intention to withdraw should be considered in the context of what was “practical and reasonable” in the circumstances. Palarajah claims that this was an important aspect of his defence given the speed with which the others carried out their attack on the deceased.
27We would not give effect to this ground of appeal. The defence of abandonment was tenuous at best. By its verdict, it is apparent that the jury rejected Palarajah’s evidence that he assumed the role of peacemaker and tried to stop the attack on the deceased. On the contrary, the jury’s verdict conforms with the evidence that placed Palarajah in the melee as one of the assailants. Accordingly, on this record, even if the trial judge did err by failing to instruct the jury as Palarajah claims he should have, we would have no difficulty in applying the curative proviso to save the conviction.
28In any event, we are satisfied that the instructions that the jury received on the defence of abandonment were more favourable than Palarajah deserved and more than make up for the alleged deficiency in the trial judge’s instructions. In concluding his instructions on the defence of abandonment, the trial judge stated as follows:
The Crown must satisfy you beyond a reasonable doubt – this relates to an essential matter – the Crown must satisfy you beyond a reasonable doubt that the accused Mr. Palarajah did not yell out “police”, or if he did so, that it did not constitute a timely communication to his fellow common intenders of his withdrawal from the assault of Janakan Sivalingam.
29As we read that instruction, the trial judge effectively told the jury that if they were satisfied or had a reasonable doubt that Palarajah yelled out “police”, as he claimed he had, so that the assailants would stop attacking the deceased, then the Crown would have failed to negative the defence of abandonment and Palarajah should be acquitted.
30With respect, that instruction was overly favourable to Mr. Palarajah and probably wrong in law. Nonetheless, by its verdict, it is apparent that the jury rejected Palarajah’s evidence even on this limited matter. Accordingly, this ground of appeal also fails.
31For these reasons, the appeals from conviction are dismissed.
PALARAJAH’S SENTENCE APPEAL
32The trial judge imposed a period of parole ineligibility of 17 years on the appellant Palarajah. Mr. Palarajah submits that this increase was excessive.
33We disagree. The trial judge fairly characterized the murder of an innocent “surrogate victim” as “terrifying and outright chilling”. He was satisfied beyond a reasonable doubt that Palarajah was one of the assailants who actually killed the deceased. He took into account Palarajah’s character, the nature of the offence and its surrounding circumstances, as well as the jury’s recommendations. In the end, despite the appellant’s age (23) and his prospects for rehabilitation, the trial judge found that the brutal murder of an innocent bystander amounted to egregious conduct and demonstrated a “high order of moral culpability”.
34The Crown submits, and we agree, that Palarajah’s conduct on the night in question was outrageous. We further agree with the Crown that in all the circumstances, the trial judge exercised his discretion appropriately in raising the period of parole eligibility from 10 to 17 years. In sum, we see no basis for appellate intervention.
35Accordingly, while leave to appeal sentence is granted, the sentence appeal is dismissed.
Signed: “M. J. Moldaver J.A.”
“E. A. Cronk J.A.”
“Doherty J.A.”
