DATE: 20030214

DOCKET: C37754

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. DONNA LYNN COSTIGAN (Appellant)

BEFORE: O’CONNOR A.C.J.O., CARTHY and MACPHERSON JJ.A.

COUNSEL: W. Gerald Punnett for the appellant Jamie Klukach for the respondent

HEARD: February 12, 2003

ORALLY

RELEASED: February 12, 2003

On appeal from the conviction entered by Justice B. Smith on August 11, 2001 and the sentence imposed on November 19, 2001.

E N D O R S E M E N T

[1] The appellant was convicted of armed robbery based solely on the evidence of a single eyewitness. There were significant frailties in the identification evidence. First, the witness had only a limited opportunity to observe the robber. She testified that she had looked at the person for ten to fifteen seconds from the front before she began to concentrate on the knife that the robber was holding. However, during this period of time, the robber had a magazine covering all but the eye portion of her face and was wearing dark sunglasses and a toque. It was only when the robber turned to leave that the witness observed the robber’s profile and noted that her eyes were set back. The opportunity for making the profile observation was very brief.

[2] Next, the description the witness gave to the police is problematic in two respects. She said that the robber was five foot four inches or taller – the appellant is in fact much taller – five foot eight to five foot ten inches. Further, the appellant has a tattoo on her middle finger on her right hand. Apparently, the witness observed the right hand of the robber rather closely but did not see a tattoo.

[3] Finally, the picture of the appellant in the photo line-up was taken from the front. There was no picture of the appellant in profile. Further, the witness’s identification of the appellant in the line-up was somewhat tenuous. On the first pass, she said the appellant’s picture stood out. On the second, she said: “That stands out. If you change her hair colour and put glasses on her. I’d pick her.”

[4] The dangers of acting upon uncorroborated identification evidence are well documented. Sincere witnesses can be mistaken. In our view, the weaknesses of this identification evidence are such that it would be unsafe to found a conviction.

[5] We would, therefore, allow the appeal, quash the conviction and enter a verdict of acquittal.

“Dennis O’Connor A.C.J.O.”

“J.J. Carthy J.A.”

MACPHERSON J.A. (Dissenting):

[6] The trial judge was fully aware of the dangers of identification evidence generally and he properly instructed himself with respect to this issue. He carefully reviewed the complainant’s evidence, including its frailties, and reached the conclusion that he was satisfied beyond a reasonable doubt that the appellant was the person who committed the robbery. I see no basis for interfering with his verdict.

“J.C. MacPherson J.A.”