DATE: 20010907 DOCKET: C29058
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) –and– SUKHVINDER SHERGILL (Appellant)
BEFORE:
CATZMAN, ROSENBERG and MOLDAVER JJ.A.
COUNSEL:
Christopher Hicks and Sam Scratch, for the appellant
Milan Rupic, for the respondent
HEARD:
September 5, 2001
On appeal from the conviction imposed by Justice Donald S. Ferguson, sitting with a jury, dated May 17, 1997 and from the sentence imposed by Justice Ferguson dated May 30, 1997.
E N D O R S E M E N T
[1] The appellant appeals against his conviction for second degree murder, and raises four grounds of appeal.
[2] First, he submits that the trial judge erred in failing to leave the included offence of manslaughter with the jury.
[3] This submission has two components. The first component is that the trial judge erred in refusing to leave the defence of provocation when there was evidence capable of sustaining that defence. We agree with the trial judge that, viewed in its most charitable light, there was no evidence from which the jury could reasonably infer, let alone conclude, that the appellant acted on the sudden before there was time for his passion to cool. The trial judge did not err in failing to leave provocation with the jury. The second component relates to the trial judge’s charge on the issue of intent. We agree that the trial judge erred in instructing the jury that if the appellant did not have the intent for murder, he must be acquitted, but we are satisfied that the error did not occasion any substantial wrong or miscarriage of justice. The essential issue in this case was whether the deceased was killed by the appellant or by his wife, and the evidence was overwhelming that whoever killed the deceased did so at least with the requisite intent for murder under s. 229(a)(ii).
[4] Second, the appellant submits that the procedure followed by the Crown in eliciting prior out-of-court statements of the witness Ms. Kaur was improper.
[5] The appellant concedes that an allegation of recent fabrication was made by the defence but submits that the allegation, as it related to the statements to the police, was limited in scope and related to certain details of the manner in which the offence was committed by the appellant. Assuming that to be the case, there was no prejudice to the appellant from the manner in which the out-of-court statement evidence was adduced. The appellant’s chief complaint was that the Crown abandoned Ms. Kaur as a witness in favour of adducing the prior statements from the more credible police officers. However, it is apparent that the defence not only anticipated that these statements would be put before the jury through the police officers, but wanted this to occur. Further, it was open to the Crown to show that, contrary to the allegation by the defence, Ms. Kaur had related these details in her conversations with the police. Having regard to the manner in which Ms. Kaur’s cross-examination was conducted – and, specifically, defence counsel’s comment that the jury would hear from the police officers – it was not necessary for the Crown to also attempt to elicit those same statements from the witness in re-examination. While the Crown might have sought to refresh her memory in re-examination, we are satisfied that, had this been done, she would either have adopted the prior statements or maintained her position that she could not recollect them. In either case, it would have been open to the Crown to lead the statements through the officers to rebut the allegation of recent fabrication.
[6] As to the 1990 statement to Dhandwar, we are satisfied that it was open to the trial judge to find that the statement rebutted an allegation that Ms. Kaur made up her story upon her arrest. We do not agree that the statement was inadmissible because Ms. Kaur testified that she did not discuss the murder with Dhandwar. In our view, a statement is admissible to rebut an allegation of recent fabrication even if the witness testifies that she did not make the prior statement on the occasion in question. To the extent that the parts of the brief prior statement were inconsistent with Ms. Kaur’s trial evidence, no prejudice was occasioned to the appellant, since this was simply further evidence undermining Ms. Kaur’s credibility.
[7] Finally, we are satisfied that the mid-trial instructions and the charge to the jury were sufficient in the circumstances in alerting the jury to the limited use to be made of these prior statements.
[8] Third, the appellant submitted that the Crown improperly cross-examined the appellant about his counsel’s failure to confront Crown witnesses with certain evidence in accordance with the rule in Browne v. Dunn and that the Crown infringed the privilege attaching to solicitor-client communications. Assuming that Browne v. Dunn did not apply in the circumstances of this case, we are satisfied that the trial judge’s instructions removed any prejudice that might have been occasioned to the appellant. On the question of solicitor-client privilege, we note that the trial judge interrupted the Crown and precluded any questions that would have violated the privilege.
[9] Fourth, the appellant sought to adduce fresh evidence to suggest that the warrant for Dhandwar’s arrest in India, on which (in part) he based his fear of returning to that country, was to his knowledge a forgery. In our view, this evidence is not admissible because whether the warrant was a forgery was a collateral issue. We do not agree with counsel’s submission that the forgery issue was not collateral because it demonstrated Dhandwar’s motive to testify falsely against the appellant. The evidence was overwhelming that Dhandwar wanted to stay in Canada. If the appellant could show that Dhandwar knew that the warrant was a forgery, it would, if anything, weaken his motive to testify falsely. In short, the only value of this evidence was to demonstrate a contradiction in Dhandwar’s testimony. In any event, even if the evidence were admissible, it could not affected the result in view of the abundance of evidence already in the trial record impugning Dhandwar’s credibility.
[10] Accordingly, the application to adduce fresh evidence is dismissed and the appeal is dismissed.
Signed: “M.A. Catzman J.A.”
“M. Rosenberg J.A.”
“M.J. Moldaver J.A.”