COURT OF APPEAL FOR ONTARIO

DATE: 20001103

DOCKET: C29901

RE: HER MAJESTY THE QUEEN (Respondent)

v. EMMANUEL NEE-WHANG (Applicant/Appellant)

BEFORE: MCMURTRY C.J.O., CHARRON AND MACPHERSON JJ.A.

COUNSEL: Joseph Wilkinson

For the appellant

Beverly Wilton

For the respondent

HEARD: November 1 and 2, 2000

On appeal from the conviction imposed by Justice Victor Paisley, with a jury, dated May 8, 1998.

E N D O R S E M E N T

[1] The appellant, Emmanuel Nee-Whang, and his co-accused, Philip Poko-Agyeman, were convicted of the offence of possession of heroin for the purpose of trafficking. The appellant was sentenced to five years imprisonment. The co-accused failed to appear for sentencing.

[2] The appellant appeals only his conviction. He does so on six grounds. The Crown response is one that it occasionally makes on appeal – it concedes that the appeal should be allowed. Its concession relates to two of the six grounds advanced by the appellant: first, the trial judge’s refusal to permit the appellant to call a witness near the end of the trial; and, second, the trial judge’s failure to deal sufficiently, in his charge to the jury, with the definition of possession and with the theory and evidence of the defence.

[3] Because the court was not convinced, based on its review of the record and facta, that these two grounds of appeal were meritorious, the court decided to hear arguments on the appeal.

[4] We do not agree that the trial judge erred in his definition of possession or in his summary of the theory and evidence of the defence. While we agree that some of the analogies used by the trial judge may have been unhelpful and the evidence could have been better related to the issues, we would not allow the appeal on this ground.

[5] However, we do agree with the joint submission of counsel that the trial judge’s refusal to permit the appellant to call the appellant’s wife, Ernestina Prempeh, as a witness deprived the appellant of his right to make full answer and defence.

[6] The appellant testified in his own defence. The police received information that heroin and a gun would be in a certain car at 4:25 p.m. on June 13, 1995. The appellant testified that he was at home with his wife at precisely that time and did not have the car in his possession. Accordingly, supporting testimony from his wife was certainly foreshadowed.

[7] During the trial, the appellant’s testimony ended at 4:20 p.m. on May 6, 1998. Counsel then sought an adjournment to the next morning, saying that he might have a further witness. The trial judge refused and ordered the defence case closed.

[8] The next morning, defence counsel sought to reopen his case. Ms. Prempeh was there. The trial judge refused the appellant’s request to reopen his case. In his ruling, the trial judge said:

I have considered the application by Mr. Hicks to call Ernestina Prempeh. He has declined at the Court’s invitation to call evidence to support his submission that illness prevented the witness from attending yesterday and I am not going to accept his statement to that effect without evidence. There is no basis for me to permit the witness to be called at this time, given that the case has been closed and is ready for the jury. I would not hesitate to accept that it would be appropriate to exercise my discretion in favour of calling such a witness on proper grounds, but absent evidence being provided in light of the Court’s offering the opportunity to call that evidence, there is no basis for doing so.

[9] Unfortunately, in this ruling the trial judge did not focus on the legal test for reopening a case to permit testimony from an additional witness. In R. v. Hayward (1993), 1993 CanLII 14679 (ON CA), 86 C.C.C.(3d)193 at 197 and 198, Doherty J.A. said:

When faced with an application to reopen the evidence, the trial judge should first be satisfied that the proposed evidence is relevant to a material issue in the case.

Once it is determined that the proposed witness has relevant evidence to give, the trial judge must consider the potential prejudice to the other party should he or she permit the reopening of the evidence.

[10] The trial judge did not address these factors. In our view, Ms. Prempeh’s evidence was clearly material. Indeed, Crown counsel at trial conceded “that she is a material witness who if she didn’t testify, one would be very tempted to comment on to the extent it was proper”. Moreover, there would have been no real prejudice if the case had been reopened briefly to permit the witness to testify. As suggested by Crown counsel, provided counsel were given a bit of time at the conclusion of her testimony to make changes, if necessary, in their closing address, there would be no injustice.

[11] In summary, Ms. Prempeh was an important defence witness who should have been permitted to testify.

[12] For these reasons, we agree with the appellant and the respondent that the appeal must be allowed. We are not inclined to deal with the other grounds of appeal. Some are irrelevant now because the new trial will not be a joint trial. Other grounds of appeal raise relevant issues but should be considered by the trial judge against the backdrop of the evidence as it unfolds at the new trial.

[13] The appeal is allowed and a new trial is ordered.

(signed) “R. R. McMurtry C.J.O.”

(signed) “L. Charron J.A.”

(signed) “J. C. MacPherson J.A.”