COURT OF APPEAL FOR ONTARIO

DATE: 20000112

DOCKET: C29641

RE: HER MAJESTY THE QUEEN (Respondent)

v. HAGOP KUYUMCUOGLU (Appellant)

BEFORE: McMURTRY C.J.O., ROSENBERG and MOLDAVER JJ.A.

COUNSEL: Hagop Kuyumcuoglu,

the appellant, in person

Jennifer Woollcombe,

for the respondent

HEARD: November 22, 1999

On appeal from the decision of Mr. Justice Michael Dambrot dated

April 3, 1998

E N D O R S E M E N T

[1] This is an appeal from the decision of Dambrot J. dismissing

the appellant’s appeal from conviction. Dambrot J. did allow the

sentence appeal in part by striking out the term of probation

requiring the appellant to complete two hundred hours of

community service. However, the appellant also seeks to appeal

the sentence.

[2] As this is an appeal from the summary conviction appeal

court, the appellant is restricted to questions of law alone.

The appellant raises two issues. He argues that Kerr Prov. Ct.

J. unduly intervened and that when the record is read as a whole

it appears that the trial judge was not satisfied of the

appellant’s guilt beyond a reasonable doubt.

[3] Dambrot J. considered the question of undue intervention and

was satisfied that the interventions did not show bias nor

prevent the appellant from presenting his case. The test for

whether there has been undue intervention was described by Martin

J.A. in R. v. Valley (1986), 1986 4609 (ON CA), 26 C.C.C. (3d) 207, at 230:

A criminal trial is, in the main, an

adversarial process, not an investigation by

the judge of the charge against the accused,

and, accordingly, the examination and cross-

examination of witnesses are primarily the

responsibility of counsel. The judge, however,

is not required to remain silent. He may

question witnesses to clear up ambiguities,

explore some matter which the answers of a

witness have left vague or, indeed, he may put

questions which should have been put to bring

out some relevant matter, but which have been

omitted. Generally speaking, the authorities

recommend that questions by the judge should

be put after counsel has completed his

examination, and the witnesses should not be

cross-examined by the judge during their

examination-in-chief.

[4] In our view, most of the interventions by the trial judge,

prior to the finding of guilt, were innocuous and intended by the

judge to clear up ambiguities and assist him in understanding the

appellant’s unusual explanation. While it would have been better

if the trial judge had followed the advice of Martin J.A., we are

not satisfied that Dambrot J. erred in law in refusing to give

effect to this ground of appeal.

[5] As to the second ground of appeal, having considered the

entire record, we are of the view that the trial judge was

satisfied of the appellant’s guilt to the requisite degree. The

trial judge clearly rejected the primary defence, that the

appellant did not steal the goods but rather brought them with

him to the store. This left only the question of mens rea. The

appellant never asserted that he took the goods to test the

social assistance people who he claimed were following him. His

position was that he did not take them. We see no error in the

trial judge’s conclusion that the appellant had the requisite

mens rea. His subsequent comments and directions were directed

to ensuring that an appropriate sentence was imposed and do not

detract from the finding of guilt.

[6] Accordingly, the appeal from conviction is dismissed. Leave

to appeal sentence is refused.

(signed) "R. McMurtry C.J.O."

(signed) "M. Rosenberg J.A."

(signed) "M. J. Moldaver J.A."