COURT OF APPEAL FOR ONTARIO
DATE: 20220419 DOCKET: C66026 & C66759
van Rensburg, Nordheimer and George JJ.A.
Docket: C66026
BETWEEN
Her Majesty the Queen Respondent
and
Saidi Sanni Olufeko Appellant
Docket: C66759
AND BETWEEN
Her Majesty the Queen Respondent
and
Tajudeen Fanikayode Appellant
Counsel: Angela Ruffo and Joanne Collins, for the appellant Saidi Sanni Olufeko Jeffery Couse, for the appellant Tajudeen Fanikayode James Clark, for the respondent
Heard: February 3, 2022, by video conference
On appeal from the convictions entered on January 11, 2018, and the sentence imposed on March 27, 2018, by Justice E. Ria Tzimas of the Superior Court of Justice, sitting with a jury, with reasons for sentence reported at 2018 ONSC 2010.
George J.A.:
Overview
[1] On June 14, 2014, Canada Border Services Agency officers intercepted a shipment at Pearson International Airport. The shipment contained carpets, some of which had heroin secreted inside. All told, approximately eight kilograms of heroin was seized. Once officers from the Royal Canadian Mounted Police (“RCMP”) became involved, a general warrant to carry out a controlled delivery of the shipment was obtained, as well as wiretap authorizations for two phone numbers.
[2] The appellants – Saidi Olufeko (“Olufeko”) and Tajudeen Fanikayode (“Fanikayode”) – together with co-accused Akeem Onaola (“Onaola”) and Peter Ajiri (“Ajiri”) were charged with importation of heroin, conspiracy to import heroin, possession of heroin for the purpose of trafficking, and conspiracy to possess heroin for the purpose of trafficking.
[3] Onaola pleaded guilty to importation and possession for the purpose of trafficking. The other three accused proceeded to trial, where Ajiri was acquitted. Olufeko was found guilty on all counts. Fanikayode was found guilty of conspiracy to possess heroin for the purpose of trafficking and possession for the purpose of trafficking. Both appeal against their convictions. Olufeko also appeals against his sentence, which was 16 years in the penitentiary reduced by the time spent in pre-trial custody.
[4] The appellants advance various grounds of appeal. Olufeko argues that the trial judge,
i) erred in allowing the Crown to elicit a police officer’s in-court identification, or, alternatively, by failing to provide a strong accompanying caution;
ii) failed to give an adequate W.(D.) [1] instruction in relation to exculpatory evidence;
iii) improperly criticized his counsel’s closing to the jury; and
iv) in respect of sentence, erred in finding that there were no mitigating factors, which led to the disparate treatment of immigration consequences as between himself and Fanikayode, who received a 12-year sentence.
[5] Fanikayode argues,
i) that the trial judge delivered an unbalanced jury charge, which favoured Ajiri and deprived him of a fair trial;
ii) that the trial judge improperly admitted opinion evidence on counter-surveillance techniques, or, in the alternative, erred by not providing a limiting instruction about its use; and
iii) that the verdict is unreasonable.
Evidence at Trial
[6] Onaola testified on behalf of the defence. He said that he was the only one of the four involved in the importation scheme and that Olufeko, Fanikayode, and Ajiri knew nothing about it.
[7] He advised that in 2004, while working in New York City, he became acquainted with a man named Joseph Goldstein. He testified that Mr. Goldstein hired him to ship carpets from Pakistan to Toronto on his behalf. Onaola testified that, in January 2014, he agreed to ship carpets that contained heroin to Canada. To that end, a fake company (with a Hamilton address) was set up and listed as the consignee. Onaola advised that, in addition to a $50,000 payment, he was told he could take possession of some of the carpets to do with as he wished. In respect of this shipment, it was his understanding that heroin would be concealed in three of the carpets and that the others would be his. Onaola testified that he was going to gift one of these extra carpets to each of his friends Fanikayode and Olufeko, and to Olufeko’s friend, Ajiri.
[8] The intercepts obtained through the wiretap authorization do not capture anything from either Olufeko or Fanikayode. They do, however, capture Onaola impersonating Mr. Goldstein attempting to coordinate the shipment on a device seized from Onaola upon his arrest. Onaola explained that this phone was given to him by Mr. Goldstein.
[9] As it relates to the movement of the carpets from the airport to its final destination (a Public Storage facility), the evidence at trial revealed that,
i) the Hamilton consignee business that Onaola spoke of, did not exist;
ii) at the Public Storage facility, Onaola had rented locker A016 under the name Dave Brewer; and
iii) RCMP officers, with assistance from the Toronto Police Service, set up surveillance at both the airport and Public Storage facility.
[10] According to officer testimony, their surveillance yielded these results:
i) At about 1:30 p.m. on June 19, 2014, Fanikayode’s Chrysler 300 vehicle was observed in the storage facility’s parking lot. Of note, Fanikayode and Onaola both testified that Onaola had directed Fanikayode to meet him there so that he could give him a carpet.
ii) Fanikayode drove around the parking lot – presumably looking for Onaola – for approximately 10 minutes, before departing.
iii) During the time Fanikayode is seen driving on the storage facility’s premises, phone records show a 10 second call to Olufeko.
iv) After departing the storage facility, Fanikayode attended at a Costco across the street.
v) Shortly after Fanikayode’s departure, a cargo truck arrived at the airport to retrieve the carpets.
vi) Police observed Onaola follow this truck in a silver Honda sedan. The cargo truck arrived at the storage facility around 3:20 p.m.
vii) Fanikayode and Onaola parked near one another in the Costco lot, both facing the Public Storage area.
viii) Onaola walked to the storage facility, allowed the cargo truck driver into the secured area, and unloaded the carpets into his rented unit. At the same time, Fanikayode was walking in the Costco lot speaking on his phone. During this time – 2:14 p.m. to 4:35 p.m. – Fanikayode’s phone records show that he received and/or made 23 calls, including two with Onaola and 7 with Olufeko.
[11] Toronto Police Constable Doug McCutcheon testified that, at around 4:33 p.m. on the 19th, he observed a black male in his 30s, wearing a teal-coloured t-shirt and sunglasses, in the Costco parking lot speaking on his phone and looking into other parked vehicles. Officer McCutcheon said that this man initially came from the Costco Gas Bar. He took photographs of this person, which were filed at trial. At some point he lost sight of him. The officer said that he had him under observation for about 20 minutes. While the officer had not been able to identify this man as Olufeko before, he did so at trial upon being presented with the photographs. When Fanikayode was shown the same photographs, he denied that they were of Olufeko. Fanikayode further testified that he had not seen Olufeko in the parking lot at all that day.
[12] Surveillance continued on June 20th. According to Fanikayode, he was to meet with Onaola to get his carpet. Onaola did not show. Onaola testified that they spoke to each other twice that afternoon and that Fanikayode was quite angry over the missed meeting. Later, at some point between 4:40 p.m. and 4:48 p.m., Olufeko attended at the storage area. He was observed by the facility’s manager attempting to open the gate. As Olufeko did not have a code he could not gain access on his own, but he followed, on foot, another vehicle that could gain access. A short while later, the alarm to Onaola’s locker was triggered. The facility manager testified that if a unit is accessed without the alarm being disabled, it will go off.
[13] At this time, an RCMP officer was inside another locker nearby. She testified that she received a radio transmission at 4:47 p.m. alerting her to the fact that a man was approaching. She did not observe that man attend inside of, or touch anything in, the locker. At about 4:50 p.m., Olufeko left the storage area and returned to his car, which was parked at the Costco lot across the road. Phone records show that the device later seized from his vehicle had made (or received) six short calls with Onaola, the last one being at 5:24 p.m. and lasting for 15 seconds.
[14] Onaola, along with Ajiri, arrived at the storage facility around 5:10 p.m. Onaola had a keypad code and was able to enter the secured area and the unit. Both Onaola and Ajiri went inside, retrieved two carpets, and began to load them into their car. At 5:26 p.m. – a mere two minutes after the call between Onaola and Olufeko (who had just been where Onaola then was) – Onaola returned the carpets he had just retrieved back to the locker. Onaola and Ajiri were then arrested.
[15] At 5:31 p.m., while in his vehicle at the Costco parking lot, Olufeko was arrested. In his glove compartment police located and seized a cheque, a recent visitor parking permit for Fanikayode’s address, the vehicle registration, and a Blackberry. In the passenger side door, the police found documents connected to the carpet shipment, including a printed email from supcan@yahoo.com to solufeko@yahoo.com, an Etihad Airways Bill number 60710966690, and a handwritten note.
[16] In his police statement, Olufeko denied that these documents were his. He indicated that Onaola asked him to print off the email because his printer was not working. When officers searched the address on Olufeko’s driver’s licence, they located personal items belonging to both Olufeko and Fanikayode.
[17] As mentioned, Onaola testified on behalf of the defence. He acknowledged being a part of the importation scheme, at the behest of Mr. Goldstein, but denied that the other accused were. To the extent any of Ajiri, Olufeko, and Fanikayode were involved, they were to simply be given a carpet as a gift. Ajiri and Fanikayode both testified. Fanikayode’s testimony closely aligned with Onaola’s. Olufeko did not testify but the Crown introduced his police statement for the truth of its contents. In it, Olufeko denied knowing anything about the drugs or Mr. Goldstein. When confronted with the shipment documents located in his car, he said they were not his. He acknowledged that solufeko@yahoo.com was his email address. When asked about his attendance at the storage facility, he said that he was just looking for Ajiri.
Issues
[18] On this appeal, these issues arise:
i) Did the trial judge err in allowing the Crown to elicit Officer McCutcheon’s in-court identification of Olufeko, or, alternatively, by failing to provide a strong caution about its use?
ii) Did the trial judge fail to give an adequate W.(D.) instruction?
iii) Did the trial judge improperly criticize the closing address by Olufeko’s counsel?
iv) In relation to Olufeko’s sentence, did the trial judge err by finding that there were no mitigating factors and, as a consequence, did she treat Olufeko and Fanikayode differently? In other words, did she fail to consider and apply the parity principle?
v) Did the trial judge deliver an unbalanced jury charge, which favoured Ajiri and deprived Fanikayode of a fair trial?
vi) Did the trial judge improperly admit opinion evidence on counter-surveillance techniques, or err by failing to provide a limiting instruction about its use?
vii) As it relates to Fanikayode, was the verdict unreasonable?
[19] I will address each in turn.
Discussion
Did the trial judge err by allowing the Crown to elicit Officer McCutcheon’s in-court identification of Olufeko, or, alternatively, by failing to provide a strong caution about its use?
[20] The concerns that typically arise when you have an in-dock identification – which will almost always attract at least a strong caution, if not be excluded altogether – do not arise here. To start, the photographs that Officer McCutcheon was asked to review were filed as exhibits and in the hands of the jury during their deliberations. Jurors were specifically told to review the photographs and determine for themselves whether Olufeko is the person captured in them. This situation is markedly different than a witness simply pointing at an accused in court and saying, “it was them”, which is inherently unreliable especially when the witness and accused are otherwise strangers. Here, the jury was told to consider whether the photographs were of sufficient clarity and quality to identify the appellant “beyond a reasonable doubt”. This instruction was in accordance with the principles set out in R. v. Nikolovski, [1996] 3 S.C.R. 1197, and went far beyond what was required in the circumstances of this case. It was also to Olufeko’s advantage. A Nikolovski instruction is provided in cases where photographic identification stands alone, which was not the case here, but, with counsel’s approval, was given nonetheless.
[21] Remember that the purpose in cautioning a jury in circumstances like these is to prevent wrongful convictions, made necessary by the fact that witnesses often get it wrong. Sometimes they misidentify people with no malice, genuinely and confidently believing they are correct. Sometimes they lie. Regardless of a witness’s motivation, in-dock identification, and eyewitness evidence generally, must be treated with skepticism. As indicated, no such concerns arise here, as the jury did not have to rely solely on what someone else said. Each juror could assess it for themselves, and the trial judge directed them to do just that.
[22] Moreover, Olufeko’s counsel did not object to this line of questioning, and, while that is not always determinative, in this case it was clearly a tactical decision made to preserve his client’s right to pursue a similar line with other witnesses in order to impeach them. What I mean is, Olufeko’s counsel advanced the position that police officer identification was not credible and by not objecting to the admission of this evidence he was maintaining the ability to attack it as such. This comes into sharp focus at the pre-charge conference when Olufeko’s counsel not only declined to seek a limiting instruction but approved of the trial judge’s decision to provide the Nikolovski instruction, which removes any possibility that the lack of objection was merely an oversight. This was Olufeko getting the very instruction he wanted and which, despite the ultimate result, was to his benefit.
[23] I would reject this ground of appeal.
Did the trial judge fail to give an adequate W.(D.) instruction?
[24] Olufeko contends that the trial judge erred in her instruction about exculpatory evidence.
[25] To focus solely on the text of the W.(D.) instruction provided, one could conclude that this ground has some merit, as the trial judge does seem to relate it only to the testimony of Onaola, Ajiri and Fanikayode, and not Olufeko’s police statement. While the heading of this section in the written jury charge included Olufeko, and while the trial judge did say that this “instruction applies to all three accused”, Olufeko argues that the trial judge fell into error nonetheless by framing W.(D.) as a “special rule” that applies either when “an accused chooses to testify” or when a witness is called by the defence. In other words, this aspect of the trial judge’s charge likely led the jury to exclude Olufeko’s statement from the W.(D.) analysis.
[26] That said, the trial judge did go on to address Olufeko’s statement, instructing the jury as follows:
You can consider what Mr. Olufeko said [to police] about his activities, his involvement, or his reasons for being at Costco as that relates to your consideration of Mr. Olufeko’s innocence or guilt. You cannot, however, use Mr. Olufeko’s evidence to draw conclusions about the innocence or guilt of Mr. Ajiri, or Mr. Fanikayode.
[27] This is somewhat problematic, not only because it sets Olufeko’s statement apart from the testimony of the other accused, but in the way it distills the analysis down to a question of guilt versus innocence, and not whether the statement, even if disbelieved, could raise a reasonable doubt.
[28] However, despite any concerns, this was, in the circumstances, an adequate instruction. I point out that Olufeko’s counsel raised no objection, which, while not in itself determinative, is yet another example of a tactical decision. I say that because to draw any more attention to his statement, Olufeko would have then undermined the defence he raised at trial, which was that he had not taken Ajiri to the Public Storage area, when in his statement he said he had.
[29] However, apart from any tactical decision, remember that one of the purposes of a W.(D.) instruction is to convey to the jury that a reasonable doubt applies even when exculpatory evidence is not believed. And here, while not perfectly done, the charge, read as a whole, sufficiently explains the burden of proof; who has it; and relates exculpatory evidence to the reasonable doubt standard. Consider this passage from the charge which, when read together with the just mentioned passages, achieves that objective:
Unless you are satisfied that the accused did not make the statements that are attributed to him…you must consider those remarks that may help an accused along with all of the other evidence. If you decide that an accused made a statement that may help him in his defence, or if you cannot decide whether he made it, you will consider that statement along with the rest of the evidence in deciding whether you have a reasonable doubt about the accused guilt.
[30] For these reasons, I would reject this ground of appeal.
Did the trial judge improperly criticize the closing address by Olufeko’s counsel?
[31] This complaint arises from the trial judge’s comments to the jury about the closing address of Olufeko’s counsel. Olufeko submits that what the trial judge said was unfair, denigrated his case, and compromised his right to a fair trial.
[32] After repeating various aspects of the closing, this is what the trial judge said:
Before I turn to the Crown’s closing submissions, I want to make some observations with respect to this closing. When you consider this closing, I make the following observations: I remind you that it is for you to decide how Mr. Ajiri got to Public Storage. You have heard three versions of this, you heard Peter Ajiri say that he went there with Mr. Olufeko. You heard Mr. Onaola say that he brought Mr. Ajiri there, then you have Mr. Olufeko’s statement. I ask that you review that statement very carefully. When you go through it, you will see an evolution in Mr. Olufeko’s explanation. Initially, he says he went to Costco on his own. Then he says he went to a friend’s at 11:30 a.m., had breakfast, watched a movie, and then his friend asked him to drive him to Lakeshore to meet another friend. He was going to buy something. That friend was Peter. Then, at a later part of the statement, Mr. Olufeko tells you that he did not meet anyone at Costco. It will be for you to decide what you believe and what you take from Mr. Olufeko’s statement. And I remind you, again, that the statement pertains, you can use that statement in relation to Mr., your findings on Mr. Olufeko. Insofar as counsel raised questions about Mr. Ajiri’s credibility to provide a full answer and defence on Mr. Olufeko’s behalf, those submissions should be treated with great care. Did Mr. Olufeko bring Mr. Ajiri to Costco, and did Mr. Olufeko give Mr. Ajiri scissors, and the orange card? These are questions about which you make the findings of fact. Insofar as the closing submissions went beyond to question the credibility and sought to implicate Mr. Ajiri, I remind you that it is only the Crown that is prosecuting the case against each of the accused. Any personal opinions about anyone’s guilt by any of the counsel is to be disregarded.
[33] In this instance, an objection was raised. Olufeko’s trial counsel said this:
In my closing I put Mr. Olufeko’s best foot forward and that did not align with the evidence of Mr. Ajiri. Mr. Ajiri hit the stand and implicated Mr. Olufeko, not the reverse. Counsel for Mr. Ajiri knowingly and with purpose advanced the narrative against Mr. Olufeko, opening up the door to cutthroat defences.
[34] This objection highlights the dilemma Olufeko found himself in, which I addressed earlier in these reasons. Also, as mentioned, the position Olufeko was attempting to advance at trial was at odds with what he had said in his police statement. The trial judge was aware of this and chose to intervene. She was right to do so, not just because of the inconsistency and risk that the jury would be misled, but because Onaola – an unsavoury witness – had given evidence that undermined Ajiri’s testimony, which was problematic given the cut-throat defence being advanced and the Crown’s position, which at that point in the trial, was to suggest that Ajiri should be believed. What that means is, without the trial judge’s intervention, it was Ajiri’s right to a fair trial that was placed at risk. In any case, at the end of the day, the trial judge was better positioned than I am now to assess the dynamics of the case, what interventions were required, and their timing. Here, it was reasonably determined that an instruction was required to avoid prejudice to Ajiri.
[35] Again, Onaola was an unsavoury witness. As such, the trial judge committed no error when she urged the jury to treat his evidence with caution. This was appropriate in the circumstances. Furthermore, “instructing the jury to be especially cautious or extremely careful in considering defence evidence [does not constitute] an error of law, especially where that instruction is accompanied by an instruction that accords with [W.(D.)]”: R. v. Wristen (1999), 47 O.R. (3d) 66 (C.A.), at para. 45, leave to appeal refused, [2000] S.C.C.A. No. 419. When such a caution is provided, the question then becomes whether the charge, considered as a whole, “unfairly undermine[d] the defence position”: Wristen, at para. 45. This charge did no such thing.
[36] I would, therefore, reject this ground of appeal.
Olufeko’s Sentence Appeal
[37] I see no error in either the imposition of a 16-year sentence or in the analysis that led to it. To start, the sentence is in the range of what Olufeko’s counsel sought, which was 15 to 16 years. 16 years is otherwise a fit sentence, given the nature of the substance, its quantity, and the role Olufeko played in the importation scheme.
[38] As for immigration consequences, it may well be that Olufeko and Fanikayode were treated differently – because each did face the prospect of deportation – but in the circumstances of this case it was of no consequence. Olufeko received the sentence he sought, and the difference in their respective sentences is explained by Olufeko being convicted of importation, which is more serious and carries a higher degree of moral culpability than possessing the same substance for the purpose of trafficking, which is what Fanikayode was found guilty of doing. That being the case, parity as between Olufeko and Fanikayode would not have been appropriate.
Did the trial judge deliver an unbalanced jury charge, which favoured Ajiri and deprived Fanikayode of a fair trial?
[39] A jury charge does not need to be perfect, but it does need to be fair: R. v. Baltovich (2004), 73 O.R. (3d) 481 (C.A.), at paras. 114-18. As the charge was fair, this ground of appeal must fail.
[40] For Fanikayode, the problem lies in the trial judge telling the jury to be “very cautious” about Onaola’s testimony, in particular his “description of the nature and extent of his engagement with the three accused”. The trial judge went on to tell the jury that they should “approach [their] findings of fact with particular care and caution, because it is possible that Mr. Onaola may have been more concerned to distance Mr. Olufeko, and to implicate Mr. Ajiri”.
[41] Earlier in these reasons, when discussing Olufeko’s contention that Ajiri’s interests were protected (at his expense), I alluded to the Crown shifting its position in respect of Ajiri as the trial came to a close. What I failed to mention, but is critical when assessing this ground of appeal, is the Crown ultimately withdrew the conspiracy count as against Ajiri. This happened before the case was placed in the jury’s hands, and each juror would have been aware of this development. Given the change in position – which had to have emanated from the Crown’s acceptance of much of Ajiri’s testimony – it was incumbent on the trial judge to weigh in so as to protect Ajiri’s fair trial interests.
[42] Doing this did not, however, create an unfairness for Fanikayode. Consider what the trial judge said about the Crown’s change in position and submissions concerning Ajiri:
[The Crown] has told you that he is not sure of Mr. Ajiri’s level of involvement. He has left the questions concerning Mr. Ajiri’s knowledge and level of control up to you. It is significant that he has asked you to rely on Mr. Ajiri’s evidence to make findings against Mr. Olufeko and Mr. Fanikayode. If the Crown is asking you to find Mr. Ajiri credible on a number of aspects of this case, I ask you, does it make sense to you that he would, Mr. Ajiri would not be credible on his exchange with the police. Did he know more than he let on, as [the?] Crown suggested, or did he not know? You have to consider those questions very carefully, and they are your findings to make.
[43] The trial judge had to say something about this given the Crown’s changed position. There was no basis to say something similar about Fanikayode, which does not give rise to an unfairness but is, rather, a reality of a case where the evidence against each accused, and their respective positions, was different. The trial judge was best positioned to gauge what was required and to strike the right balance. I see no reason for this court to interfere and would, therefore, reject this ground of appeal.
Did the trial judge err by improperly admitting opinion evidence on counter-surveillance techniques or by failing to provide a limiting instruction about its use?
[44] I begin this issue by saying that I do not necessarily accept the characterization of the evidence as opinion evidence. It appears to me to be narrative evidence of the officer’s observations. However, assuming that it is opinion evidence, I point out, again, that there was no objection from trial counsel with respect to the officer being asked about, and giving, this evidence. This is yet another example of an appellant raising issues that were not raised by trial counsel. While it is ultimately the trial judge’s responsibility to ensure only admissible evidence is presented to the jury and that the proceeding is fair, at the same time, trial judges inevitably, and quite properly, look to trial counsel for assistance and reasonably expect to receive it. At one point, appellant counsel suggested that because this was a lengthy, complex trial, with several accused and counsel, it could be that counsel just got tired as it neared its conclusion, as a way to explain the lack of diligence by trial counsel as a mere oversight. I do not accept that. If anything, the nature of the proceeding would have elevated counsel’s level of awareness and the need to preserve the record so that contentious issues could be properly addressed on appeal.
[45] In any case, I do not believe the trial judge fell into error. I start by pointing out that police opinion about counter-surveillance techniques was first raised by Fanikayode. Consider this exchange between Fanikayode’s counsel and Officer Willschick:
Q. Okay, so, when you guys went out, your team went out, would it be fair to say that your mandate was to look for any suspicious activity with regard to this controlled delivery?
A. Yes.
Q. Okay. And you said that you were nominated the scribe for the surveillance report on the 19th?
A. Correct.
Q. That’s probably because of your handwriting because I have no trouble reading it. And so, your job essentially was to take down anything that would’ve been suspicious that was reported on the radio, is that correct?
A. Yeah, when another member would make an observation, I was to write it down.
Q. [If] someone were to say over the radio that they saw something suspicious, that’s something that you would write down, correct?
A. I would think so, yes.
Q. You think so. So, if someone said, for example, they saw one of the suspects doing counter-surveillance, looking for police, you would’ve written that down, correct?
A. I believe I would have.
Q. And that would be important because that’s what you guys were looking for which is suspicious activity that day?
A. Correct.
Q. Okay. And you had a chance to review your surveillance report from the 19th?
A. Yeah, I have it right here too.
[46] The reason Fanikayode took the approach he did, is clear. He wanted to blunt the apparent connection between him and the shipment, and he could only do that by pursuing this line of questioning to, hopefully (from his perspective), show that he was not conducting counter-surveillance. Therefore, if Officer Willschick was able to give this testimony – which is what Fanikayode’s counsel seems to have thought – then why couldn’t Officer McCutcheon? Maybe both should have been permitted to do so. Maybe neither. In any case, the trial judge was not asked by counsel to weigh in and provide guidance, and she otherwise saw no need to intervene on her own initiative.
[47] In the circumstances of this case, it was not an error to permit the admission of the counter-surveillance conclusion. Nor was a limiting instruction required, given its lack of importance and the trial judge’s decision to not repeat, or otherwise highlight, the police evidence in this respect. In fact, given how Fanikayode advanced his defence, if the trial judge had referred to this evidence in her charge, he could have claimed that she unnecessarily drew attention to it.
[48] I would reject this ground of appeal.
As it relates to Fanikayode, was the verdict unreasonable?
[49] As there was ample evidence to support each verdict, this ground of appeal must fail.
Conclusion
[50] For these reasons, I would dismiss the appeals against conviction.
[51] I would grant Olufeko leave to appeal his sentence, but would dismiss the appeal.
Released: April 19, 2022 “K.M.v.R.” “J. George J.A.” “I agree. K. van Rensburg J.A.” “I agree. I.V.B. Nordheimer J.A.”
