COURT OF APPEAL FOR ONTARIO

DATE: 20051207

DOCKET: C41359

RE: HER MAJESTY THE QUEEN (Respondent) – and – DOUG NOWOSZYNSKI (Appellant)

BEFORE: ROSENBERG, GOUDGE and SIMMONS JJ.A.

COUNSEL: Catherine Glaister for the appellant Jennifer Woollcombe for the respondent

HEARD & ENDORSED: December 2, 2005

On appeal from conviction by Justice Bruce C. Hawkins of the Superior Court of Justice, sitting with a jury, dated December 10, 1003.

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

[1] Appeal against sentence is dismissed as abandoned.

[2] The appeal from conviction is allowed, the conviction set aside and a new trial ordered for the following reasons. A police officer gave evidence of statements made by the appellant. The statements were not recorded and as recited by the officer ambiguous. By the end of the case, counsel and the trial judge were satisfied that the appellant had not admitted involvement in the break-ins. Regrettably, the trial judge did not make this clear to the jury even though the trial judge himself had raised the issue. The Crown’s case was far from overwhelming and we are of the view that there was a real risk that the jury may have taken the effect of the officer’s evidence to be that the appellant had admitted his involvement. Accordingly, the verdict cannot stand.