DATE: 20000906
DOCKET: C32073
COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) - and - DEXTER NELSON (Appellant/Applicant)
BEFORE: LABROSSE, WEILER AND SHARPE JJ.A.
COUNSEL: Shaun Nakatsuru
For the appellant
Graham Reynolds
For the respondent
HEARD: September 5, 2000
On appeal from conviction by The Honourable Madam Justice Joan L. Lax sitting with a jury on March 10, 1999 and sentence imposed on March 24, 1999.
E N D O R S E M E N T
[1] The appellant was convicted by court composed of a judge and jury on charges of importing and possession of cocaine for the purpose of trafficking. He appeals his conviction and the sentence of five years in prison.
[2] The appellant submits that the trial judge erred on the following points:
By ruling that the defense could not cross-examine the police officer with respect to the voluntariness of the appellant's statement.
By permitting crown counsel to cross-examine the accused with respect to gaps in his statement and by failing to instruct the jury with respect to right to silence.
By failing to give the jury adequate instruction with respect to the lie told by the appellant to the police.
By denying the appellant's Corbett application.
[2] Mr. Nakatsuru abandoned in oral argument a further ground raised in his factum based upon certain alleged adverse comments on the defense made by the trial judge.
[3] The Corbett ruling was a matter within the discretion of the trial judge and we see no error in principle in the manner in which she dealt with the issue.
[4] With respect to all other grounds of appeal, we find it unnecessary to determine whether or not the trial judge erred as we are not persuaded that these alleged errors, whether taken by themselves or cumulatively, resulted in any significant prejudice to the appellant. Accordingly, were it necessary to do so, we would not hesitate to apply the proviso. We can see no reasonable basis to doubt the correctness of the verdict and we find that no substantial wrong or miscarriage of justice was occasioned in the circumstances of this case. The Crown presented a strong circumstantial case. Credibility was an important issue and the Crown’s case became stronger because of the improbability of the defence evidence.
[5] With respect to the cross-examination of the police officer, the appellant was restricted only with respect to the voluntariness of the statement. The point the appellant sought to establish was his own subjective state of mind when he made the statement. The appellant had testified to his state of mind and as to the circumstances at the time he made his statement. The appellant’s own version of the events and the concession of his trial counsel that the statement was voluntary for purposes of admissibility indicate that there was no serious issue as to voluntariness. In these circumstances, even if the trial judge erred in curtailing the cross-examination, a point we find unnecessary to decide, we fail to see how any further cross-examination of the police officer would have assisted the appellant.
[6] With respect to the second ground, the appellant chose to answer some, but not all, of the questions put by the police. His assertion of the right to silence was, at best, selective in nature. In examination in chief, his own counsel attempted to present the appellant as having been honest and forthcoming with the exception of the one admitted lie. In these circumstances, we do not accept that the trial judge erred in permitting the crown’s cross-examination. Crown counsel did overstep the line in her closing address when she suggested that the appellant should be disbelieved because of his failure to tell the police that Ken Wilson was the importer. It would have been preferable for the trial judge to correct any impression that submission might have created that the appellant was required to disclose his defense before trial. However, in view of the position taken by the appellant with respect to the truth of his statement and the tactics adopted at trial, we are satisfied that in light of all the evidence, no substantial wrong or miscarriage of justice resulted.
[7] With respect to the third ground, we do not accept the submission that the trial judge was required to deal with the admitted lie in the appellant’s statement to the police on the basis that it was “after the fact” conduct. The trial judge was entitled to treat this in the usual way simply as a statement and as a matter going to credibility. In any event, we do not accept that there is any realistic possibility that the jury was unaware of the excuse proffered by the appellant for the lie.
[8] Accordingly, the appeal against conviction is dismissed.
[9] With respect to sentence, we see no error in principle and the sentence is within the acceptable range for the circumstances of the offences. The appeal against sentence is also dismissed.