- DATE: 20020403 DOCKET: C31635
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) – and – KWAKU BONA (Appellant)
BEFORE:
MACPHERSON, SHARPE AND SIMMONS JJ.A.
COUNSEL:
John Norris
for the appellant
Fergus O’Donnell
for the respondent
HEARD:
March 21, 2002
On appeal from the conviction dated February 16, 1998 and sentence imposed on April 7, 1998 by Justice Anne M. Molloy.
E N D O R S E M E N T
Released Orally: March 21, 2002
[1] The appellant was tried by a superior court judge, sitting with a jury, on an indictment containing one count of trafficking, one count of possession for the purposes of trafficking, one count of possession and one count of possession of the proceeds of crime. He was found guilty on all counts and received a sentence of four years and eight months, taking into account, on a 2:1 basis, the two months he had served in pre-trial custody. The appellant appeals against the convictions and sentence.
[2] The appellant alleges that there were six errors which, taken together, warrant a new trial on two of the counts and acquittals on the other two counts.
[3] The Crown concedes that there is merit with respect to two of the errors asserted by the appellant. First, Crown counsel at trial asked the appellant during his cross-examination questions about why he had not called as a witness the only person who could confirm his testimony, namely, the co-accused, Yaw Baafi, who had a separate trial on the charge relating to him. This was, the Crown concedes, an impermissible line of cross-examination. Second, the Crown concedes that the trial judge’s charge on the co-conspirator’s exception to the hearsay rule was flawed. She did not properly instruct the jury on the first stage of the Carter test which deals with the existence of a common purpose.
[4] We agree with the Crown’s concessions with respect to these two matters. However, we do not agree with the Crown’s submissions that the errors caused no serious harm in the trial.
[5] In our view, the Crown’s questions about witnesses who might or might not testify on the appellant’s behalf were improper. In the present case, this line of questioning took place very early in the cross-examination and gave rise to a real possibility that the jury would think about a factor that simply had no place in the trial.
[6] With respect to the trial judge’s error relating to the co-conspirator’s exception to the hearsay rule, a good deal of the trial related to Baafi’s conduct and declarations. It was essential that the jury charge on this issue be accurate. Unfortunately, the trial judge misstated the Carter test for the admission of the evidence. In particular, her statement: “You do not need to be satisfied of this common purpose beyond a reasonable doubt” was a serious error on a crucial point.
[7] In addition, the trial judge permitted the accused (admittedly, at defence counsel’s suggestion) to leave the courtroom during his cross-examination so that the accuracy of Crown counsel’s recall of previous testimony could be checked before further questions were asked. This violated s. 650(1) of the Criminal Code. Although this was an error, in light of the brief and relatively unimportant discussion that took place while the appellant was excluded from the courtroom, we would not allow the appeal if this was the only error that had occurred during the trial.
[8] Similarly, in our view the trial judge erred by not instructing the jury about the good character evidence led by the appellant. It is true that the evidence led by the appellant on this point was not particularly strong, and was effectively challenged during cross-examination. However, it cannot be said that these points rendered this evidence irrelevant. Defence counsel referred to it in his closing address and the trial judge should also have included it in her charge.
[9] There is no doubt that there was substantial evidence on which the jury’s guilty verdicts could rest. It should also be said that a fair reading of the entire record establishes that the trial judge took care with her rulings and her jury charge. However, in the end there were four errors committed during the trial. At least two of the errors warrant the label “serious”. The cumulative effect of the errors means that we cannot say that we are satisfied that the appellant received a fair trial. Accordingly, we cannot apply the proviso in s. 686 of the Code.
[10] For the sake of completeness, we note that we do not agree with the appellant’s argument that the jury verdicts on counts two and four in the indictment were unreasonable verdicts. There is a sufficient basis in the evidence for the charges with respect to those counts to proceed at a new trial.
[11] The appeal is allowed, the convictions are set aside and a new trial is ordered on all counts.
“J. C. MacPherson J.A.”
“Robert J. Sharpe J.A.”
“Janet M. Simmons J.A.”