R. v. Mohammed, 2007 ONCA 513

CITATION: R. v. Mohammed, 2007 ONCA 513

DATE: 20070706

DOCKET: C42307

COURT OF APPEAL FOR ONTARIO

MOLDAVER, FELDMAN and LANG JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

YASMIN MOHAMMED

Appellant

Leslie Maunder for the appellant

Daniel Guttman for the respondent

Heard: June 26, 2007

On appeal from conviction by Justice Bruce C. Hawkins of the Superior Court of Justice, sitting with a jury, on March 3, 2004.

ENDORSEMENT

[1] The appellant was convicted of robbery, possession of stolen property, fail to stop for the police, possession of a prohibited weapon, point firearm, and possession of a firearm arising from the armed robbery of Annis Jewellers in Scarborough on February 12, 2002. The appellant, one of three people involved in the robbery, was the driver of the get away car and did not enter the jewellery store. She was tried with Stuart Brown and found guilty on all counts. The main proponent, Collin Burke, pled guilty and admitted robbing the jewellery store with the firearm. The appellant appeals her conviction on all counts.

[2] At trial, the appellant conceded that she drove Stuart Brown and Collin Burke to the jewellery store in her car and picked them up afterwards. There was no dispute that the front licence plates had been taken off her car and the back plate replaced by a yellow dealer plate. The appellant’s story was that she did not know the two people she was driving were going to commit robbery. This was arguably inconsistent with the fact that she did not pull her car over when followed by police but instead engaged them on a 1.3 km high speed chase.

[3] The appellant’s central argument on this appeal is that the trial judge erred by admitting hearsay evidence provided by Mrs. Annis, the proprietor of the jewellery store. Mrs. Annis had testified at Burke’s sentencing hearing and identified the appellant as being in her store the day before the robbery. Mrs. Annis died before the appellant’s trial. She did not testify at the appellant’s preliminary hearing even though she was present at court that day. One of the reasons she was not called as a witness was because she was feeling ill. That information was not communicated by the Crown to defence counsel.

[4] Immediately following the robbery, the police took statements from both Mr. and Mrs. Annis. Later that day Mrs. Annis went to the hospital for head injuries she suffered during the robbery. As a result of these injuries as well as a pre-existing heart condition that appeared to have been aggravated by the trauma of the robbery, Mrs. Annis remained in hospital for two weeks.

[5] Detective Stewart testified that approximately five and a half weeks after the robbery, on March 22, 2002, Mrs. Annis spoke to him for the first time since the robbery. He visited Mrs. Annis at her home to return the jewellery taken during the robbery. According to Detective Stewart, during their meeting Mrs. Annis told him that she remembered a black female being in the store the day before the robbery and she thought it was odd. Mrs. Annis told him that the woman had come in and had looked at a diamond and asked if she could pay for it over time.

[6] Three days later Detective Stewart returned to the store to show Mrs. Annis a photo line-up. According to Detective Stewart, Mrs. Annis identified the appellant as the person who was in her store. She commented that the woman was beautiful and had her hair tied back when she came into the store, not as shown in the photograph.

[7] As indicated, Mrs. Annis was not called at the preliminary inquiry. She died around December 25, 2002.

[8] At trial, the Crown sought to introduce the evidence given by Mrs. Annis at Burke’s sentencing hearing. The portion of her testimony relating to the appellant is reproduced below:

A. On the llth of the month, at 5:30, she came into the store, the beautiful girl looked for diamonds. I showed her diamonds …

Q. So there was a beautiful girl who came into the store looking for diamonds?

A. Yes. She tried the diamond. She liked it and she asked me: Do you take payments? I said: “Yes, give me a little money and I’ll keep it for you”. She told me: “I don’t have now but I’ll come tomorrow or the day after and I’ll give some money down to get it”.

Q. Okay. Now I understand that you didn’t see this woman the day of the robbery?

A. No, no. The police showed me pictures in the book. And I saw that girl, and I put my hand there. I pointed … And I learned that this girl was driving the two others.

[9] Following a pre-trial voir dire, the trial judge held that the Crown could read Mrs. Annis’ testimony at the sentencing hearing of Collin Burke on September 24, 2002 into the trial record in this case. The trial judge ruled the evidence admissible. He stated as follows:

Mrs. Annis said that the day before the robbery a beautiful girl came into the store looking for a diamond. That description was obviously generic, but nonetheless accurate. According to Mrs. Annis the girl tried on a diamond, liked it, and discussed putting down a down-payment. The girl then left, promising to return in a day or two to make a deposit. In her examination Mrs. Annis was not asked how long it took but obviously it was not a matter of seconds. Mrs. Annis made no pretense of ever seeing that person the day of the robbery. She later picked Yasmin Mohammed’s picture out of a photo line-up as the girl who had visited her store the day before the robbery.

Mrs. Annis gave her testimony on the 24th of September 2002, shortly before the preliminary inquiry which began on October 8th. In order to admit her testimony, I must be satisfied that it meets the tests of necessity and reliability.

Mrs. Annis is dead and there is no other source for her evidence. She was not called to testify at the preliminary inquiry because the Crown felt that her health was frail.

I shall consider some of the factors to be considered in reaching a decision. No one factor is sine qua non of admissibility, nor must all factors be present.

(1) the evidence was given under oath in a court of law before a judge with the solemnity of court.

(2) The testimony was recorded by an official court reporter, thus ensuring as much as humanly possible its accuracy.

(3) Mrs. Annis had no reason to lie. Her attacker had hit her at least once, but he had pled guilty; there was no need to exaggerate.

(4) As to likelihood of accuracy, Mrs. Annis’ evidence was neither complex nor lengthy, she told a simple story fairly simply.

(5) This is not the evidence of someone who has caught just a fleeting glimpse of someone in passing. Mrs. Annis spent a not inconsequential amount of time with the woman close up enough to discuss the diamond ring and a possible down-payment.

(6) The sentence hearing of Burke was not an occasion on which defence counsel for the present accused could cross-examine Mrs. Annis. Crown counsel admitted that the cross-examination of Mrs. Annis by Burke’s counsel was no substitute for cross-examination by present counsel for Yasmin Mohammed and Stuart Brown.

Lack of opportunity to cross-exmaine is important but not definitive.

Balancing all these considerations, I hold that Mrs. Maria Annis’ testimony may be admitted.

[10] Mrs. Annis’ statement was read in as part of the Crown’s case. After Mrs. Annis’ evidence was read in, the judge stated as follows:

Ladies and Gentleman, what I usually do after evidence tendered by the Crown, I turn to Ms. Von Achten and ask if she will cross-examine … but there is nobody for them to cross-examine. Maria Annis is dead, and that is why there is no further cross-examination.

[11] Detective Stewart testified about this identification and was extensively cross-examined on all aspects of it, including the procedures pertinent to the integrity of Mrs. Annis’ identification

Issues

[12] The primary issue on appeal is whether the trial judge erred in admitting Ms. Annis’ testimony from the Burke sentencing hearing as original evidence. In particular, the appellant argues that the trial judge erred in holding that it passed the requisite tests of necessity and reliability. Secondarily, the appellant submits that if the impugned evidence was admissible, the trial judge erred in failing to properly instruct the jury on its frailties as untested identification evidence.

(a) Issue One: Admissibility of Mrs. Annis’ Evidence

[13] The appellant submits that the trial judge erred in holding that Mrs. Annis’ testimony was necessary. She submits that the Crown should have taken steps to preserve Mrs. Annis’ evidence, knowing that she had a pre-existing heart condition and had been affected by the robbery. We disagree.

[14] Mrs. Annis was only age 65 at the time of her death. While the Crown knew that she was infirm, there was no reason to anticipate that she would die before the trial. As such, this case does not come within the type of situation contemplated by Charron J. in R. v. Khelawon (2006), 2006 SCC 57, 215 C.C.C. (3d) 161 at para. 104.

[15] On the issue of reliability, we see no error in the trial judge’s analysis. Importantly, in addition to the reasons given by the trial judge, at the time of the photo line-up there was no evidence (apart from speculation) that Mrs. Annis’ ability to identify the appellant had been tainted by external sources such as media coverage. Indeed, the evidence on this subject was to the contrary.

[16] As for possible tainting by Detective Stewart, as noted, the Detective was extensively cross-examined about the circumstances surrounding the line-up procedure and no evidence of impropriety was revealed. That went some way to alleviating the concern about the inability to cross-examine Mrs. Annis.

[17] Absent tainting, apart from sheer good luck, Mrs. Annis’ ability to select the appellant as the person who was in her store on the evening before the robbery was powerful evidence. It strongly supported the reliability of her identification.

[18] Furthermore, we note Detective Stewart’s evidence that Mrs. Annis was able to recognize the appellant’s face even though she told him “that her hair was not hanging down” as it appeared in the photograph. Mrs. Annis’ ability to recognize the appellant despite the change in her hairstyle adds further weight to the fifth factor mentioned by the trial judge, that Mrs. Annis had ample opportunity and ability to observe the woman in her store on the evening before the robbery

[19] When all of the relevant factors are taken into account, we are satisfied that the trial judge did not err in holding that the requisite test for reliability had been satisfied. It follows that Mrs. Annis’ evidence was properly received. Accordingly, the appellant’s first submission fails.

(b) Issue two: The Charge

[20] The trial judge warned the jury that there was no effective cross-examination of Mrs. Annis and that this was a factor they should take into account in assessing her evidence. Furthermore, as noted, when her evidence was received, the trial judge told the jury that normally, Mrs. Annis would have been cross-examined but that this could not occur because she was deceased.

[21] In our view, when the instructions about the lack of cross-examination are considered along with the trial judge’s extensive instructions on the frailties of identification evidence and the need to proceed with great caution before acting on such evidence, we are satisfied that the charge was adequate. Accordingly, we would not give effect to this ground of appeal.

[22] The only other ground related to the trial judge’s failure to outline the elements of the firearms’ offences in relation to the appellant. No objection was taken at trial and we would not give effect to this submission.

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

Signed: “M.J. Moldaver J.A.”

“K. Feldman J.A.”

“S.E. Lang J.A.”