Court File and Parties

CITATION: R. v. Mujku, 2011 ONCA 64

DATE: 20110124

DOCKET: C46732 / C47289 / C47055

COURT OF APPEAL FOR ONTARIO

MacPherson, Sharpe and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Fadil Neil Mujku, Sam Nop and Vuthy Chak

Appellants

Counsel: Brian H. Greenspan, for the appellant Fadil Mujku J. Wilkinson and C. Schaefer, for the appellant Sam Nop M. Halfyard, for the appellant Vuthy Chak Jennifer Woollcombe and Gregory J. Tweney, for the respondent

Heard: January 10 and 11, 2011

On appeal from the convictions entered by Justice Fletcher Dawson of the Superior Court of Justice, sitting with a jury, on December 14, 2006.

By the Court:

A. INTRODUCTION

[1] This case involves appeals of three convictions for second degree murder arising from the beating death of Matthew Daly in Burlington by a group of people apparently upset that several of them had been ejected from a high school graduation party in a private home.

[2] The appellants, Sam Nop (“Nop”), Vuthy Chak (“Chak”) and Fadil Mujku (“Mujku”), were convicted of second degree murder on December 14, 2006 after a lengthy trial presided over by Dawson J. of the Superior Court of Justice, sitting with a jury. A fourth man, Stephen Papadopoulos, was convicted of manslaughter at the same trial. A fifth man, Edin Hodzic, pleaded guilty to manslaughter at a separate trial.

[3] Each appellant raises separate grounds of appeal. Taken together, the grounds of appeal allege errors by the trial judge in his pre-trial rulings, in the admission of certain evidence during the trial, and in the charge to the jury. In addition, the appellant Mujku asserts that he was denied the effective assistance of counsel and that the jury verdict was unreasonable.

B. FACTS

[4] On the evening of Friday, May 18, 2001, students of Nelson High School gathered with friends to celebrate their graduation at the Burlington home of one of their classmates. A young man from Hamilton, Stephen Papadopoulos, came to the party after being invited by one of the graduating students. Three of his Hamilton friends accompanied him.

[5] A group of the Nelson graduates and other invited guests ordered the Hamilton group to leave the party and escorted them off the property. One of those involved in ejecting the Hamilton group was 19-year old Matthew Daly. The descriptions of the exchange leading to the Hamilton group’s departure provided by those who witnessed it suggest that while it may have begun with a polite request that the group depart, both groups quickly became angry and racial slurs were uttered by the invited guests as the Hamilton group left the party.

[6] The four young men, angry at their ejection, returned to Hamilton, recruited four more friends, and obtained weapons, including bats. In two cars, the eight young men drove back to Burlington.

[7] At about 3:00 a.m. on May 19, Matthew Daly and his girlfriend, Erin Keller, left the party and started to walk down Woodland Park Drive. A man ran up behind Daly, separated him from his girlfriend, and dragged him across the street to a grassy area. Four other attackers quickly joined in, hitting Daly on the head and upper body with bats and sticks. After about a minute, four of the attackers ran away while the fifth delivered an additional three to five blows before following the first four. The attackers fled in the two cars, leaving Daly unconscious. He was taken to a hospital and pronounced dead at 3:45 a.m.

[8] The police investigation that followed the homicide included taking statements from many of those at and in the vicinity of the graduation party, taking statements from the suspects, surveillance of the suspects, cell phone analysis, and wiretap interceptions. On October 9 and 10, 2001, Nop, Chak, Mujku, Papadopoulos and Hodzic were arrested and charged with second degree murder. The charges were later upgraded to first degree murder. After a lengthy preliminary inquiry, all were committed to stand trial for first degree murder.[^1]

[9] The trial began on September 5, 2006. On arraignment, Nop, Chak and Papadopoulos tried to plead guilty to manslaughter. The Crown rejected these pleas. Mujku, who had been prepared to plead guilty to manslaughter at a judicial pre-trial (again, the Crown rejected this plea) pleaded not guilty on arraignment.

[10] The jury heard 25 days of evidence. None of the four accused called any evidence.

[11] For Mujku, the jury had to decide whether he was in the Hamilton group that was ejected from the party. More importantly, the jury had to determine whether he was in the group that returned to Burlington and, if he was, his role and intent at the time of the attack on Daly.

[12] Nop and Papadopoulos provided Agreed Statements of Fact acknowledging their presence at the site of the attack on Daly. In addition, in his Agreed Statement of Fact, Chak acknowledged that he “was involved as a participant in the unlawful attack on Matthew Daly” and that he “used a bat, striking the person of Matthew Daly.” In light of these concessions, the real task of the jury was to determine each of these accused’s role and level of intent in order to decide whether they were guilty of first degree murder, second degree murder or manslaughter.

[13] The jury found Nop, Chak and Mujku guilty of second degree murder and Papadopoulos guilty of manslaughter. Nop, Chak and Mujku appeal their convictions.

C. ISSUES

[14] The appellants raise the following issues:

Sam Nop

1. Did the trial judge err in admitting evidence of Nop’s after-the-fact conduct in light of his attempted plea to manslaughter and the admissions contained in his Agreed Statement of Fact?

2. Did the trial judge err in his jury charge by giving a Vetrovec charge with respect to the evidence of Reth Dorn?

3. Did the trial judge err in his jury charge in his treatment of the change in Dorn’s testimony between the preliminary inquiry and the trial?

Vuthy Chak

4. Did the trial judge err in admitting part of Chak’s October 10, 2001 statement to the police?

5. Did the trial judge err in admitting evidence of Chak’s after-the-fact conduct in light of his attempted plea to manslaughter and the admissions contained in his Agreed Statement of Fact?

6. Did the trial judge err in admitting Chak’s prison van statement?

7. Did the trial judge err in his jury charge by mischaracterizing the evidence of the pathologist?

8. Did the trial judge err in his jury charge with respect to the issue of murder for the final assailant versus the other assailants?

Fadil Mujku

9. Was Mujku’s conviction a miscarriage of justice because of the ineffective assistance of counsel at trial?

10. Did the trial judge err in admitting Courtney Weatherill’s identification evidence relating to Mujku?

11. Did the trial judge err in admitting Edin Hodzic’s diagram relating to the crime scene, the two cars and their occupants (Exhibit 43)?

12. Did the trial judge err in admitting Chak’s statement to Weatherill about going to Burlington with Mujku?

13. Was the jury verdict of second degree murder unreasonable?

[15] At the conclusion of the appellants’ oral submissions, the court called on the Crown to respond to only issues 1, 5, 10 and 11.

D. ANALYSIS

Sam Nop’s Conviction Appeal

(1) After-the-fact conduct

[16] Prior to the trial, Chak and Papadopoulos brought a motion to exclude after-the-fact conduct evidence based on their undertakings to enter a plea of guilty to manslaughter. The trial judge ruled that this evidence was admissible for various purposes, including the assessment of their credibility, as there was evidence of each lying to the police and encouraging others to do the same. As a result, after-the-fact conduct evidence relating to Chak, Papadopoulos and Nop was admitted at trial.

[17] Nop did not participate in his co-accused’s motion on this issue. Indeed, Nop raised no objection to the admissibility of evidence of his after-the-fact conduct at any point during the trial.

[18] On appeal, Nop contends that the trial judge err by admitting evidence of his after-the-fact conduct in light of his admission of manslaughter. In that context, asserts Nop, the evidence had no probative value. In the alternative, Nop submits that the trial judge did not provide the jury with a sufficiently strong caution with respect to the proper use of this evidence.

[19] We do not accept these submissions. On the admissibility issue, although Nop was prepared to admit to manslaughter, his plea was not accepted. Moreover, in his Agreed Statement of Fact, Nop admitted to being at the scene of the attack, but did not admit to actually taking part in the attack on Daly. In those circumstances, as the trial judge said in his ruling with respect to Papadopoulos (whose situation in this respect was identical to Nop's), “[t]he admissions… do not support an inevitable verdict of manslaughter from a jury acting reasonably and properly instructed…. the after-the-fact conduct evidence is relevant to whether Papadopoulos participated in the commission of the actus reus of the crime charged.” In our view, this conclusion is correct and is equally applicable to Nop.

[20] With respect to Nop's alternative argument, in our view the trial judge’s jury charge on this issue was entirely appropriate. The trial judge said, correctly, that the jury could consider evidence of after-the-fact conduct in deciding whether any of the accused “participated in the unlawful act that caused death”. However, in the next sentence, he also said, again correctly, that after-the-fact conduct evidence

cannot be used by you to determine what the accused's intention or state of mind was at the time of the participation in the unlawful act that caused death…. [N]one of this evidence of what an accused said or did after the killing can be used to determine the accused's level of culpability…. In other words this evidence cannot be used to advance the Crown's case beyond manslaughter for any of the accused.

(2) Vetrovec warning re Reth Dorn

[21] In his factum, Nop challenged the Vetrovec warning given by the trial judge in relation to the evidence of Reth Dorn. In oral submissions at the appeal hearing, he revised his position. Although not abandoning this ground of appeal, he made no submissions relating to it and acknowledged that his position on this issue was not consistent with recent decisions of this court.

[22] We accept this concession. The trial judge’s Vetrovec warning in this case, where Reth Dorn’s testimony helped Nop and Papadopoulos but hurt Mujku, was consistent with the recent decisions of this court in R. v. Gelle (2009), 2009 ONCA 262, 244 C.C.C. (3d) 129 (C.A.), R. v. Yumnu (2010), 2010 ONCA 637, 260 C.C.C. (3d) 421 (C.A.), and R. v. Shand, 2011 ONCA 5.

(3) The change in Reth Dorn’s testimony

[23] At the preliminary inquiry, Dorn testified that Nop was passed out in Papadopoulos’ car during the attack. At trial, he testified that Nop was standing next to Hodzic’s car during the attack. Dorn’s evidence on both occasions was consistent with Nop’s versions of the events at these times. On cross-examination, Dorn denied that the reason he changed his testimony between the preliminary inquiry and the trial was that he knew that Nop had also changed his story.

[24] Nop contends that the trial judge erred in failing to instruct the jury that they could not use the fact that Dorn had changed his evidence against Nop as there was no evidence that Nop had influenced Dorn to provide the account that he gave at trial.

[25] We disagree. Trial counsel did not request a charge along these lines. Crown counsel did not suggest the jury could make such an inference in the closing address. Nor did the trial judge in the jury charge. In the absence of any suggestion that Nop was responsible for Dorn’s change in evidence, there was no need for the trial judge to indicate that there was no evidence to this effect.

Vuthy Chak’s Conviction Appeal

(4) Admissibility of Chak’s October 10, 2001 statement

[26] After a seven-day voir dire, the trial judge gave extensive reasons excluding Chak’s June 4, 2001 statement to the police and a portion of his October 10, 2001 police interview, but admitting the balance of the October 10 interview.

[27] During the October 10 interview, the police officer encouraged Chak to “tell the truth” by advising him that offering his side of the story would be “safer than just waiting and relying on what these guys said” and explaining that it would be “better”, “much better” and “the best thing” to talk. The police officer also said that he would answer Chak’s questions about the investigation if he told the truth about his involvement.

[28] In response to Chak’s statement that his lawyer told him not to say anything, the police officer stated: “[A]ll lawyers tell every person don’t say anything. Just don’t say anything. But your lawyer is at his house having his dinner, watching his TV with his family and you’re here.” The officer also commented that Chak was “18 years old” and “intelligent” and that the other suspects had also been advised by their lawyers to say nothing.

[29] Chak admitted to hitting Daly in the body twice and burning and disposing of the bat he used to do so in a dumpster. He made these admissions immediately after the police officer showed him pictures of the burned baseball bat and the dumpster in which it had been found and told Chak that “[t]his whole thing is over. The case is solved, the people are arrested. We have our statements.... and it’s got to be painfully clear to you now.”

[30] The trial judge found that the interviewing officer had induced Chak to make a statement and that the inducements were a “major motivating factor in Chak’s decision to make certain damaging admissions” but concluded that most of these were not “improper inducement(s)”. The trial judge found that the police officer did “[cross] the Rubicon” when he told the appellant he would be “safer” if he made a statement, as this suggested there was a danger in remaining silent. The trial judge concluded, however, that this improper inducement was not an operative factor in Chak’s decision to make his admissions and ruled the statement voluntary.

[31] The trial judge rejected the submission that the police officer’s comment that all lawyers tell their clients not to say anything undermined Chak’s s.10(b) rights. However, the trial judge did find that Chak’s s.10(b) Charter rights were violated later in the interview when the police ignored his numerous requests to speak to his lawyer and excluded the admissions made after that point.

[32] Chak submits that the trial judge erred in failing to exclude all of his October 10, 2001 statement on the grounds that:

(a) the Crown failed to prove that it was voluntary; and

(b) it was obtained in breach of the Chak’s s.10(b) Charter right to counsel.

(a) Voluntariness

[33] With respect to voluntariness, Chak identifies several problematic aspects of the interview:

• the police officer’s suggestion that it would be the “best thing”, “better for you” and “much better for you” to make a statement;

• the police officer’s suggestion that Chak would benefit from providing his own account as he would not have to rely on that of the others;

• the police officer’s offer of information about the investigation in exchange for a statement; and

• the police officer’s suggestion that Chak would be “safer” if he provided a statement.

[34] Chak submits that the trial judge erred by failing to consider all of these facts together and by isolating the pictures of the charred bat as the factor that pushed Chak over the edge and led him to make incriminating admissions.

[35] We do not accept this ground of appeal. The trial judge’s careful and detailed ruling demonstrates that he was fully aware that there were some troublesome elements of this interrogation, and indeed, he found that at one point, the police officer had crossed the line. However, the trial judge found as a fact that it was the picture of the charred bat, rather than any improper inducement, that caused Chak to make the incriminating statements. That finding was open to the trial judge on this record, which includes a video recording of the interview that the trail judge reviewed several times before reaching a decision. Those findings are entitled to deference on appeal and Chak has failed to persuade us that there is any basis for appellate intervention.

(b) Charter, s. 10(b)

[36] The police tread on dangerous ground when they comment on the legal advice tendered to detainees. In our view, however, the trial judge did not err in finding that the impugned comment made by the police officer did not violate, or undermine to the point of breach, Chak’s s.10(b) right to counsel. It was open to the trial judge to find that the police officer simply made the point that it was up to Chak, not his lawyer, to decide whether or not to make a statement. The circumstances here are distinguishable from R. v. Burlingham, 1995 CanLII 88 (SCC), [1995] 2 S.C.R. 206, at para. 14, where the court held that “s.10(b) specifically prohibits the police, as they did in this case, from belittling an accused's lawyer with the express goal or effect of undermining the accused's confidence in and relationship with defence counsel.” We see no basis upon which to interfere with the trial judge’s finding that the comments of the police officer in this case did not rise to that level.

(5) Chak’s after-the-fact conduct

[37] In a detailed pre-trial ruling, the trial judge held that the Crown could introduce evidence of Chak’s after-the-fact conduct, in particular his attempt to burn the baseball bat he used in the attack. As we have already noted, the trial judge gave a strong limiting instruction to the effect that the evidence of after-the-fact conduct could not be used to determine the accused’s intention or state of mind, in other words, it could not be used to advance the Crown’s case beyond manslaughter.

[38] Chak argues that, as he admitted that he was present at the scene of the homicide, that he struck the victim in the body with a baseball bat, and that he offered to plead guilty to manslaughter, the evidence of his after-the-fact conduct had no probative value and should not have been admitted.

[39] The trial judge rejected that submission and ruled that Chak’s post-offence conduct was relevant for the following reasons:

• to explain the condition of the baseball bat;

• to explain why no forensic evidence was found on the bat;

• to evaluate Chak’s reaction to the photographs of the bat when deciding what weight to place on his October 10 statement;

• as evidence admissible against the other accused that the bat was used in the commission of the offence;

• as evidence of joint action with Nop, as there was also evidence that Nop told Chak to destroy the bat.

[40] We see no error in the trial judge’s analysis. Moreover, the trial judge’s strong caution that the post-offence conduct could not be used to take the Crown’s case beyond manslaughter removed any risk that the jury would use this evidence improperly.

(6) Chak’s prison van statement

[41] This argument was not pressed in oral argument. In any event, the intercepted prison van statement added nothing to the October 10 statement or to the facts formally admitted by Chak at trial.

(7) Characterization of the evidence of the pathologist

[42] In his charge to the jury, the trial judge indicated that Dr. Rao, the pathologist, testified that there were a minimum of three to four blows to the head causing Matthew Daly’s death. Chak submits that the trial judge’s emphasis on the word “minimum” implied that there were likely more blows, thereby undermining the defence theory that only the final assailant was guilty of murder.

[43] In her evidence, Dr. Rao did plainly state that there were a minimum of three to four blows to the head and neck. We do not agree that this evidence was effectively shaken in cross-examination. Moreover, the trial judge accurately captured the thrust of the cross-examination when he reminded the jury that, under cross-examination, Dr. Rao said that there were three to four blows and left it to the jury to decide the actual number of times Matthew Daly had been struck on the head.

[44] In our view, the trial judge accurately summarized the evidence of Dr. Rao on this issue.

(8) Instruction regarding the final assailant

[45] Chak argues that the trial judge confused the jury in the following passage from the charge:

[I]t is open to you to conclude that the intent for murder is established beyond a reasonable doubt for the last assailant but not for the others, if that is the way you see it based on the evidence. However, while that view of the evidence is open to you, other views of the evidence are open to you as well. It is for you to say whether that view of the evidence is the correct one, or whether this argument raises a reasonable doubt on the issue of proof of intent for murder. Remember to keep all of the evidence in mind. [Emphasis added.]

[46] Chak submits that the jury might have understood from this passage that their task was to determine whether or not the theory that only the last assailant was guilty of murder was correct, or at least that the jury might have been confused and not understood that if they had a reasonable doubt on the issue, they were to acquit.

[47] We disagree. The trial judge’s instructions on this issue were fair. He explained to the jury that they could reach differing conclusions about the intent of the different assailants and that they could conclude that only the final assailant had the intent required for murder. Had the impugned passage from the charge ended with the words “the correct one” and not discussed the possibility that the argument could have raised a reasonable doubt, there would have been a problem. However, the trial judge took into account trial counsel’s submission at the pre-charge conference and added the crucial words “or whether this argument raises a reasonable doubt on the issue of proof of intent for murder”, thereby removing any problem that might have been created by the use of the word “correct”.

Fadil Mujku’s Conviction Appeal

(9) Ineffective assistance of counsel

[48] Mujku's main contention is that his counsel at trial provided him with ineffective assistance, causing a miscarriage of justice. He argues that his trial counsel failed to maintain a consistent focus on what he now says was his “fundamental position” at trial – that evidence adduced by the Crown could not identify him beyond a reasonable doubt as one of the persons who participated in the assault on Matthew Daly. Instead, Mujku argues, his trial counsel unnecessarily focused on the alternate defence that, if the jury found him to be one of the perpetrators, Mujku nevertheless lacked the requisite intent for murder. Mujku points to trial counsel’s closing address to the jury to show that he emphasized the alternate defence, and argues that this emphasis had the effect of undermining his fundamental position that the Crown had failed to prove that he was even present at the attack.

[49] Mujku’s ineffective assistance argument presumes that the Crown’s evidence placing him at the scene and identifying him as one of the assailants was inadequate to support a conviction for manslaughter, let alone murder. That is the assessment of Mujku’s appellate counsel, who advances an unreasonable verdict argument as a separate ground of appeal. We, however, are not persuaded that it was a departure from reasonable and informed professional representation for trial counsel to conduct the trial on the basis that Mujku faced a real risk of conviction for murder.

[50] Counsel for Mujku on appeal concedes that trial counsel’s assessment may have been justified initially. Mujku admitted to the police and to others that he had participated in the attack on the deceased, and had, in fact, offered to plead guilty to manslaughter, an offer the Crown declined. He argues, however, that once trial counsel was successful in obtaining a pre-trial ruling that Mujku’s incriminating statements were inadmissible, he should have reformulated his trial plan and concentrated solely on the argument that the Crown had failed to prove beyond a reasonable doubt that Mujku was one of the attackers.

[51] The linchpin of Mujku’s argument is the discrepancies between the description of the attacker whom the Crown identified as Mujku and the description of the person at the party in Burlington whom the Crown alleges was also Mujku. There is indeed a difference between the two descriptions. However, we do not agree that trial counsel’s strategy of “riding two horses” was misguided. There was other evidence capable of supporting an inference that Mujku was both at the party and at the attack. For example, the cell phone evidence provided strong support for the Crown’s theory that Mujku was in the group that was ejected from the party. There was evidence that the person at the party identified by the Crown as Mujku was the angriest at being ejected. The witness Courtney Weatherill, the girlfriend of the co-accused Chak, testified that Mujku, whom she knew and whose voice she claimed to recognize, telephoned Chak at two or three in the morning and that Chak left the house immediately after this phone call. Evidence and admissions established that Chak left to participate in the attack. Further evidence relating to two cell phones registered to “Fadil Mujku” and “Saton Mujku” could support the inference that the reason the cell phone Mujku used to recruit Chak was inactive during the time of the attack was that Mujku was participating in the attack. Its use recommenced shortly afterwards.

[52] Mujku argues that part of trial counsel’s ineffectiveness was his failure to object to or undermine some of the above evidence. We do not agree. Trial counsel performed reasonably in eliciting from the witness who introduced the cell phone records that the two Mujku phones could have been in the hands of two different persons, and that the records did not prove Mujku was present at the attack. Nor do we see any incompetence in trial counsel’s failure to object to the admission of Exhibit 43, which placed Mujku at the scene of the attack. Exhibit 43, a diagram drawn by Hodzic relating to the crime scene, was admitted only against Nop and the judge gave an immediate and clear mid-trial instruction about the limited use the jury could make of it. We discuss Exhibit 43 further below.

[53] In our view, trial counsel, exercising reasonable and informed professional judgment, could have come to the conclusion that Mujku faced a real risk of conviction for murder at the time of the trial. The jury, if it accepted the evidence of Courtney Weatherill, could infer that Mujku, having recruited Chak, then accompanied him. The additional evidence could provide further support for that inference.

[54] It seems to us that Mujku’s present assessment of the evidence enjoys the benefits of hindsight. It is illuminating that in resisting the suggestion that a verdict of first degree murder was a possible outcome of the trial, appellate counsel first relied on the verdicts that were returned against the co-accused. During the trial, trial counsel would not have known how the jury would assess the mindset of the group of eight young men who arrived in Burlington armed with baseball bats having had the opportunity to reflect, during the drive from Hamilton, on how they would use those bats. Trial counsel would have been unaware that the jury would not convict all of the accused as parties to the offence of murder. He could not have known what the jury might make of the discrepancies in the identification evidence relating to Mujku.

[55] We conclude that trial counsel did not depart from a standard of reasonable competence in considering a verdict of murder against Mujku a possible outcome of the trial. Trial counsel’s assessment of the evidence at the time was evidently shared by Crown counsel, who declined to accept Mujku’s offer to plead guilty to manslaughter. Hence, we reject the argument that trial counsel’s conduct of the trial dealing with that possible outcome constituted ineffective representation.

(10) Admission of Exhibit 43

[56] Mujku submits that the trial judge erred in admitting Exhibit 43 into evidence against Nop, who adopted it in his statement to the police. Mujku says that the exhibit had no probative value as it did little more than confirm Nop’s admission that he was present at the scene, but had great prejudicial effect by also placing Mujku at the scene. Counsel for Mujku relies on the recent decision of this court in R. v. Largie (2010), 2010 ONCA 548, 101 O.R. (3d) 561 (C.A.), to advance his argument that it was open to the trial judge to exclude the exhibit on that basis.

[57] Largie, at para. 88, does state that each accused in a joint trial has the right to be shielded from evidence that unfairly prejudices him or her. In the same paragraph the court adds that “joint trials are different than trials involving a single accused. And the right of every accused to a fair trial does not mean that those tried jointly are entitled to an exact copy of the trial they would receive if they were to be tried alone”. The court goes on to say at para. 89:

To balance the competing interests of co-accused in a joint trial, the authorities conclude that a carefully crafted jury instruction about the permitted and prohibited use of evidence of limited admissibility is the best way to achieve that balance…. Absent alteration of the paradigm of trial by jury, constitutionally guaranteed in cases such as this, we proceed on the basis that juries accept and follow judicial instructions.

[58] In Largie, the court also points out, at para. 90, that “[a] determination of where the balance falls as between probative value and prejudicial effect involves the exercise of judicial discretion. These assessments are notoriously fact-specific and entitled to substantial deference, absent any errors in principle”.

[59] Finally, the court in Largie, at para. 98, in assessing the potential prejudice against the co-accused against whom the evidence was not admissible, took into account that the jury had received mid-trial and final instructions regarding the permitted and prohibited use of that evidence:

The trial judge could only have excluded this evidence if he were satisfied that its prejudicial effect in connection with Gavra Largie outweighed its probative value in relation to Karl Largie. In assessing potential prejudice against Gavra Largie, it is critical to bear in mind that the jury received mid-trial and repeated final instructions about the permitted and prohibited uses of evidence of extrinsic misconduct or general bad character, and evidence of statements made by or attributed to individual accused. The jurors were told of their obligation to consider the case for and against each accused separately, and apparently did so according to their verdicts. [Emphasis added.]

[60] Here, the trial judge allowed the diagram to be admitted only against Nop. At the time of its admission, he gave an immediate instruction that it could be used only against Nop. In his charge he emphasized that point and added specifically that it could not be used as evidence against Mujku.

[61] We see no error in the way the trial judge dealt with Exhibit 43. We observe, as did the court in Largie at para. 85, that in some cases the admission of a statement of a co-accused may be so prejudicial to another accused that a separate trial is necessary for the accused against whom the statement is not admissible. Here, Mujku accepts on appeal that trial counsel had good reason to decide not to seek severance.

(11) The admission of Chak’s statement to Weatherill

[62] We would apply the same reasoning to Mujku’s submission that the trial judge erred by admitting Weatherill’s evidence that Chak told her that he went to Burlington and provided her with the names of the seven others who had gone with him, including Mujku. The evidence was properly admissible against Chak and the trial judge gave clear instructions to the jury that they could not use this evidence against Mujku.

(12) Identification evidence of Weatherill

[63] Counsel for Mujku submits the trial judge erred by allowing the Crown to introduce a prior statement given by Weatherill to the police which included a description of Mujku, by simply putting the statement to her and asking her to confirm it. Counsel for Mujku argues that the Crown failed to first establish that the witness had no present memory of Mujku’s appearance at the relevant time.

[64] The disputed testimony was given in the course of the Crown reviewing with Weatherill her selection of Mujku from a photo line-up on July 18, 2001. Before she was shown the photos, she had been asked for, and provided, a short description of him. As Weatherill knew Mujku, she had no difficulty choosing his photograph out of the photo line-up. She signed the photo line-up documents. At trial, in reviewing the procedure followed, the Crown placed a copy of the photo line-up documents in her hands and had her confirm their contents. In leading her through the documents, Crown counsel read to Weatherill the included description and had her confirm it was the description she had given at the time of the photo line-up. The signed statement was entered as an exhibit without objection.

[65] The description Weatherill provided at the time of the photo line-up would inevitably been made part of the record, whether or not the Crown could have proceeded in a more technically rigorous manner. In fact, the officer who conducted the photo line-up appeared as a witness and testified that Weatherill had provided him with the description recorded in the documents, and had picked Mujku’s photo from the line-up. We are not persuaded the trial judge committed a reviewable error by allowing the documents to be filed and the witness to adopt and confirm the description she had given of Mujku.

(13) Unreasonable verdict

[66] Counsel for Mujku on appeal, again relying on the discrepancies in the physical descriptions of the person who attended the party who was said to be Mujku and the person who attacked the deceased who was said to be Mujku, submitted that the verdict was unreasonable and unsupported by the evidence. Above, we concluded that the assessment of a reasonably competent trial counsel could have been that Mujku faced a real risk of conviction for murder based on the admissible evidence. It follows that this ground of appeal must be rejected.

E. DISPOSITION

[67] The three conviction appeals are dismissed.

RELEASED: JAN 24 2011 (“J.C.M.”)

“J. C. MacPherson J.A.”

“Robert J. Sharpe J.A.”

“R. G. Juriansz J.A.”

[^1]: The committals were upheld by the reviewing court on a certiorari application and by this court: see R. v. Papadopoulos et al., 2005 CanLII 8662 (ON CA), [2005] O.J. No. 1121 (C.A.). An application for leave to appeal to the Supreme Court of Canada by Hodzic was dismissed: see R. v. E.H., [2005] S.C.C.A. No. 314.