DATE: 20040614

DOCKET: C38388

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – VICTOR EDWARD GUNNER (Appellant)

BEFORE:

ABELLA, MOLDAVER and BORINS JJ.A.

COUNSEL:

Irwin Koziebrocki

for the appellant

Sandra Kingston

for the respondent

HEARD & ENDORSED:

June 11, 2004

On appeal from conviction by Justice Nancy M. Mossip of the Superior Court of Justice dated September 28, 2000.

A P P E A L B O O K E N D O R S E M E N T

[1] We disagree with the appellant’s submission that the verdict should be set aside as unreasonable. The sole issue for the jury was the identity of the person responsible for the killing. In our view, there was a sufficient body of evidence upon which a properly instructed jury, acting reasonably and judicially, could conclude that the appellant was that person. Specifically, there was eyewitness evidence, evidence of motive and opportunity, evidence of after-the-fact conduct pointing to the appellant’s guilt and most significantly, forensic evidence implicating him as the perpetrator.

[2] As for the trial judge’s charge, we would not give effect to the one concern raised by the appellant. There is no basis for thinking that the jury would have confused the trial judge’s recitation of the Crown’s position with the trial judge’s opinion as to the appellant’s guilt.

[3] Accordingly, the appeal from conviction is dismissed.