Court of Appeal for Ontario

Citation: R. v. Turner, 2012 ONCA 728

Date: 20121026

Docket: C49782

Judges: Goudge, Rouleau and Watt JJ.A.

Between:

Her Majesty the Queen Respondent

and

Barrington Turner Appellant

Counsel:

Michael Dineen, for the appellant Alexander Hrybinsky

Heard: October 23, 2012

On appeal from the conviction entered on December 13, 2007 by Justice Ferguson of the Superior Court of Justice, sitting with a jury.

APPEAL BOOK ENDORSEMENT

[1] The first issue in this appeal concerning the proposed fresh evidence is the due diligence consideration.

[2] It is clear that the evidence of the appellant now proffered as fresh evidence was always available.

[3] As to the evidence now offered by Mr. General, in our view, the appellant’s trial counsel made a tactical decision not to call him. Had Mr. General been seen as a useful witness for the defence, counsel would have and could have pursued the matter of the Crown allegedly conditioning its position on Mr. General’s sentencing on his implicating the appellant, and would have had any misunderstanding to that effect removed.

[4] Moreover, there was ample other reasons for trial counsel to conclude that Mr. General would not be a helpful nor necessary witness, including the eye witness identification evidence, which was not seen by the defence as overwhelming, and Mr. General’s general lack of credibility.

[5] Since this was a tactical decision, the cogency consideration applied to Mr. General’s proposed fresh evidence is considerably higher. His personal history and his current version of events lead us to conclude that his credibility is not sufficient to meet that criteria.

[6] Since both the due diligence and cogency requirements are not met, we would not admit the fresh evidence, and the appeal must therefore be dismissed.