COURT OF APPEAL FOR ONTARIO
DATE: 20060828
DOCKET: C43822 and C43825
RE: HER MAJESTY THE QUEEN (Respondent) – and – VAN PHU NGUYEN and VAN CHIEN PHUNG (Appellants)
BEFORE: GOUDGE, SHARPE and BLAIR JJ.A.
COUNSEL:
Kim Schofield for the appellant Nguyen
Daniel A. Stein for the appellant Phung
Peter Defreitas for the respondent
HEARD & ENDORSED: August 25, 2006
On appeal from convictions by Justice Douglas B. Maund of the Ontario Court of Justice dated March 7, 2005 and sentence imposed June 27, 2005.
A P P E A L B O O K E N D O R S E M E N T
[1] The appellants argue that the verdict at trial is unreasonable.
[2] We do not agree. The trial judge found as facts that both appellants must have known that the house contained a “growop”, that one of them secured the door on leaving, and that both were in the premises to care for the plants. These inferences were all quite available on the evidence. None constitute palpable and overriding error. None are open to review in this court. This is enough for convictions.
[3] However, the appellants argue that the trial judge erred in failing to find that their presence might have been for maintenance of the buckets and the house generally, independent of the “growop” and that this must raise a reasonable doubt for any reasonable trier.
[4] Again we disagree. There is no evidence from which one could find (beyond simple surmise) that maintenance of the house could possibly explain their presence – such as tools or evidence of maintenance activities.
[5] The appellants can only point to there being buckets in the house to catch dripping water. This alone is not enough for us to find that no reasonable trier could avoid the conclusion that this possibility of being there for maintenance alone rose at least to the level of reasonable doubt.
[6] Taking these considerations together with the fact that the appellants did not give evidence at trial, we cannot find this to be a case of unreasonable verdict.
[7] The appeal is dismissed.