DATE: 20030409

DOCKET: C36483

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – GE PING NG (Appellant)

BEFORE: CARTHY, GOUDGE and GILLESE JJ.A.

COUNSEL: Michael Lomer for the appellant

Alexander Alvaro for the respondent

HEARD: March 26, 2003

On appeal from the convictions by Justice Norman D. Dyson of the Superior Court of Justice, sitting with a jury, dated May 17, 2001.

E N D O R S E M E N T

[1] The appellant raises two grounds of appeal in support of his submission that a new trial should be ordered following his three convictions for conspiracy to utter counterfeit money.

Charge on the Co-Conspirators Exception to the Hearsay Rule

[2] The appellant submits that the trial judge erred by instructing the jury on the co-conspirators exception to the hearsay rule when it was not necessary and, further, that the charge was incorrect in a number of ways.

[3] We accept that the co-conspirators exception to the hearsay rule played little, if any, role in the case. All of the evidence incriminating the appellant emanated from Jennie Fung. Most of the out-of-court acts and declarations that were admitted into evidence were statements made by Fung in taped conversations with Lambertucci or the appellant. Fung testified and was cross-examined on her testimony. In the circumstances, the hearsay nature of the out-of-court acts and declarations was effectively rendered moot with the result that it was unnecessary and probably undesirable to instruct on the co-conspirators exception.

[1] That said, the effect of instructing the jury on the co-conspirators exception could only have inured to the benefit of the appellant as it may have served to keep the out-of-court statements from being used against the appellant and any error in the instruction is, therefore, immaterial.

Instructions on the Elements of the Offences

[2] The appellant submits that the trial judge erred in his instructions to the jury with respect to the essential elements of the offences. We disagree with this submission for the following reasons.

[3] With respect to the appellant’s argument that the trial judge needed to assist the jury by identifying the nature of the three different conspiracies and the evidence that related to each, we note that the essential elements of each of the three conspiracy counts were the same; only the time frame and the common unlawful object differed.

[4] In respect of the submission that the trial judge failed to put a significant aspect of the defence theory to the jury, we note that the defence called no evidence, it’s theory was that Fung was lying and the trial judge made that clear to the jury.

[5] Finally, the trial judge was entitled to express his opinion on the evidence in respect of whether Fung was given a deal so that she would testify. The trial judge did not remove the matter from the jury’s consideration; he made it clear that it was for the jury to decide the matter.

Conclusion

[6] Accordingly, we would dismiss the appeal from conviction.

“J.J. Carthy J.A.”

“S.T. Goudge J.A.”

“E.E. Gillese J.A.”