DATE: 20050415

DOCKET: C40944

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) -and- DENISE COZZI (Appellant)

BEFORE:

LASKIN, LANG and MacFARLAND JJ.A.

COUNSEL:

Michael Lacy

for the appellant

Grace Choi

for the respondent

HEARD AND RELEASED ORALLY:

April 8, 2005

On appeal from the conviction entered by Justice Fern M. Weinper of the Ontario Court of Justice on January 30, 2001.

E N D O R S E M E N T

[1] The appellant appeals her conviction for counselling to commit murder. She has served her three-year sentence. At trial, the evidence against the appellant was overwhelming. She, however, advanced the defence of duress. In a lengthy and well-reasoned decision, the trial judge rejected her defence.

[2] The appellant has abandoned the grounds of appeal in her original notice of appeal, but seeks a new trial on the basis of her proposed fresh evidence. That fresh evidence was tendered on two issues: to show the continuity of her journal entries; and to show the post-sentence criminal conduct of the appellant’s former boyfriend. We called on the Crown only on the fresh evidence relating to the appellant’s journal.

[3] The appellant points out that, though continuity was not in issue at trial, the trial judge found that she had fabricated some of her journal entries. The appellant contends that the proposed fresh evidence of her trial counsel undermines this finding and, therefore, bears on the critical issue at trial – the credibility of her claim that she committed the offence under duress caused by threats from her former boyfriend.

[4] Even if we relax the due diligence requirement for the admission of this evidence, we are not satisfied that the evidence of the appellant’s trial counsel could reasonably be expected to have affected the result. The trial judge gave many reasons for finding the appellant’s claim of duress not to be credible. The proposed fresh evidence itself conflicts with the appellant’s own evidence at trial about whether she had the journal after she was released on bail following her arrest. Even if we were to set aside that contradiction, we agree with the Crown that the fresh evidence does not reliably show that the appellant had no opportunity to falsify the entries in her journal.

[5] Moreover, even if this evidence did show a lack of opportunity to falsify, we are not persuaded that it would have had any effect on the assessment of the appellant’s credibility. As the trial judge pointed out, the appellant’s behaviour in her two meetings with the undercover officers by itself is inconsistent with the conduct of a person acting under duress.

[6] For these reasons, the motion for leave to introduce fresh evidence and the appeal itself are dismissed.

Signed: “John I. Laskin J.A.”

“Susan E. Lang J.A.”

“J. MacFarland J.A.”