Her Majesty the Queen v. Kamal Abdulhakim
COURT FILE NO.: 11-50000702-0000
DATE: 20131129
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Michally Iny, for Her Majesty the Queen
- and -
KAMAL ABDULHAKIM
John Scandiffio for Kamal Abdulhakim
HEARD: October 17, 2013
Thorburn J.
APPLICATION TO RE-OPEN PROCEEDINGS OR DECLARE A MISTRIAL
Relief Sought
[1] Abdulhakim was charged with robbery, use of an imitation firearm while committing robbery and having his face masked with the intent to commit an indictable offence. He elected to proceed by way of judge alone.
[2] On May 27, 2013, Abdulhakim was convicted of robbery using an imitation firearm while wearing his face masked. A date for sentencing was set.
[3] Approximately two months later, on the day the sentencing was to proceed, counsel for Abdulhakim brought an Application for a mistrial or, in the alternative, to re-open his trial to adduce fresh evidence. He claims that late disclosure of material evidence breached his section 7 Charter right to make full answer and defence.
Background Facts from the Judgment
[4] On August 10, 2010, two assailants entered the Bilal restaurant. Ducaleh and Farrah were working in the restaurant. The first assailant kicked Ducaleh and ordered him to the ground with the intent to steal money from the safe. Ducaleh was in close contact with the first assailant.
[5] Farrah did not get a good look at the first assailant as he was not wearing his glasses. Moreover, the first assailant was with Ducaleh while the second assailant was with Farrah.
[6] Lighting conditions were good in the restaurant and it was a sunny day at noon when the assailants fled the restaurant and ran outside.
[7] The first assailant was described by both Ducaleh and Farrah as a black male wearing dark clothing and a bandana.
[8] Ducaleh testified that he saw the two assailants run from the restaurant, chased them and never lost sight of the first assailant until he pointed him out to police and they began to chase him. The police witnesses testified that they followed him with a clear unobstructed view and he was apprehended moments later. The first assailant was a black male wearing dark clothing. A blue bandana was found on the ground a few feet from where he was apprehended.
[9] Farrah testified that he got up to run after the robbers “around 10 seconds” after they left the restaurant “I waited ‘till everybody left’ till I followed them after…” In examination in chief he said he went out the back door of the restaurant laneway and once he got out to the laneway he went around the side of the restaurant to the direction of Mr. Transmission next door. In cross-examination he said he was not sure whether the assailants ran out the front or the back door of the restaurant.
[10] Farrah said he saw Ducaleh there “on the road with another person. I remember him coming back with me and saying we have to place a call.” The owner of Mr. Transmission dialed and he spoke to the operator as Ducaleh did not speak very good English.
[11] Fifty-four seconds after the commencement of the 911 tape, an unknown person said “there’s a cop”.
Abdulhakim’s Position
[12] Abdulhakim claims the 911 tape produced for the first time on the second day of trial, contained, “an utterance relating to when the police arrived at the scene of the robbery that’s timing was of such significance that, in the opinion of the Defence Counsel, it undermined the trial evidence of Mr. Ducaleh and the attending officers Rendon and Ahluwahlia on the issue of identification that was the focal point of the trial.”
[13] The utterance “there’s a cop” was made by an unknown person 54 seconds after the 911 call was placed. This was repeated by Farrah.
[14] Abdulhakim states that if police arrived 54 seconds after the 911 call was made and if Farrah was correct that he left the restaurant approximately 10 seconds after the robbers fled, at least 60 seconds had passed between the time the first suspect ran from the Bilal restaurant to the time police arrived on scene.
[15] This, he says, demonstrates that it is “improbable to impossible” that the robber was Abdulhakim “based on the time sequence established from the 911 CD.”
[16] Abdulhakim’s counsel claims he did not have the opportunity to raise this issue at trial as the 911 CD was disclosed mid-trial. He was granted an adjournment to review the tape with his client but, “its relevance was only made clear after evidence and submissions were complete.” He claims therefore that his right to make full answer and defence has been prejudiced by late disclosure of the 911 CD.
The Crown’s Position
[17] The Crown submits that this application to reopen the case should be dismissed because:
a) this is not fresh evidence: it was presented at trial and the Defence was given an adjournment to review the tape with his client;
b) Abdulhakim has not been diligent in bringing this evidence forward since it was discovered several months before this Application was brought;
c) the Application to re-open is nothing more than a desire to revisit a tactical decision made at trial not to elicit more evidence about the precise timing of the police arrival on scene or to explore an utterance made by Farrah; and
d) the evidence would not affect the outcome of the trial.
The Law
[18] A judge sitting alone is not functus officio following a finding of guilt until sentence is imposed or the matter is otherwise finally disposed of. Therefore, a judge who has made a finding of guilt on disputed facts may vacate the adjudication of guilt at any time before the imposition of sentence although this power should only be exercised in exceptional circumstances where its exercise is clearly called for. (R. v. Lessard, [1976] O.J. No. 74, 30 C.C.C. (2d) 70 (O.C.A.) at paras. 10-12).
[19] Once a trial judge has convicted the accused, a more rigorous test is required to protect the integrity of the process, including the enhanced interest in finality. The most appropriate test for determining whether or not to permit fresh evidence to be admitted is the test for the admissibility of fresh evidence on appeal set out in Palmer. (R. v. Kowall., [1996] O.J. No. 2715 (O.C.A.) at para 31.)
[20] In Palmer and Palmer v. the Queen (1976), 50 C.C.C. (2d) 193, at page 205 (S.C.C.) the court held that in deciding whether to allow a party to adduce fresh evidence, the overriding consideration is the interests of justice taking into account,
i. the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial although this principle will not be applied as strictly in criminal cases as civil cases;
ii. the evidence must be relevant in that it bears upon a decisive or potentially decisive issue at trial;
iii. the evidence must be credible; and
iv. if believed, it could reasonably be expected to have affected the result.
[21] In R. v. Kowall the court held that when a trial judge is asked to reopen the case, the court must also consider whether the application is an attempt to reverse a tactical decision made at trial.
[22] Where an application to re-open or to declare a mistrial is being considered, counsel must be given an opportunity to make submissions. (R. v. Griffith, 2013 O.C.A. 510)
Analysis and Conclusion
The Evidence Could have been Adduced at Trial
[23] The Defence knew of the existence of the 911 tape as it was referred to on the ICAD report that was provided to the Defence. The Crown did not provide a copy of the tape to the Defence prior to trial and the Defence did not seek production of the 911 tape. The only person speaking to the dispatcher on the 911 call is Farrah.
[24] The Crown chose not to call Farrah. Abdulhakim’s counsel elected to call Farrah. The Crown advised that in cross examining Farrah she would like to refer him to the 911 tape.
[25] The tape was produced on the second day of trial. Defence counsel was given an opportunity later that day and evening to review the tape. After being granted time to review the tape with Farrah, Defence counsel indicated that he was ready to proceed.
[26] For these reasons, it is clear that this is not fresh evidence: the 911 tape was played in its entirety at trial and Farrah was asked questions by Defence counsel and cross-examined by the Crown on the utterances.
[27] Secondly, Abdulhakim has not been diligent in bringing this evidence forward since it was discovered.
[28] His Application was brought two months after the tape was disclosed and counsel had had an opportunity to review it with Farrah. No explanation was offered for this delay save to say that, “After the date that the convictions were entered Defence counsel reviewed the file and took a further opportunity to listen to the 911 CD. Upon further review, it became apparent to Defence counsel that the 911 CD included an “utterance” relating to when police arrived at the scene of the robbery that’s timing was of such significance that, in the opinion of Defence counsel, it undermined the trial evidence of Mr. Ducaleh and the attending officers Rendon and Ahluwahlia on the issue of identification that was the focal point of the trial.”
The Evidence is Relevant and Credible
[29] The evidence is relevant and credible and was the subject of examination and cross examination at trial.
If Believed, this Evidence Would Not Reasonably be Expected to Affect the Outcome of the Trial
[30] I do not believe the evidence that an unknown person stated on the 911 tape that “there’s a cop” 54 seconds after the 911 call was placed, would reasonably be expected to affect the outcome of the trial. I have come to this conclusion for the following reasons:
a) Farrah did not have a clear recollection of the events or the times within which things happened;
b) I found in my reasons that “the defence evidence as to the precise place Ducaleh was when he stopped the police vehicle, and the precise location where the male was seen running when first spotted by police, is not material. The male [the first assailant] was continuously running. This was a fluid event rendering it difficult to state with exact precision where he was”;
c) Ducaleh had a clear and continuous view of the first assailant, identified him to police and they had a continuous view of him save for a few seconds in the parking lot before he was apprehended;
d) no evidence was adduced as to how long it would take to run from the back to the front of the restaurant;
e) the voice on the tape is that of an unknown person and it is therefore impossible to verify whether the time the person says he saw “the cop” was the time the officer in fact arrived;
f) several officers attended the scene after Abdulhakim was apprehended and “the cop” could have been one of the officers who appeared after Abdulhakim had been apprehended; and
g) the reference to “the cop” suggests that it was not one of the officers who chased and apprehended Abdulhakim as they were together in a vehicle when they chased and then apprehended him.
[31] In summary, I am satisfied that the trial should not be re-opened or a mistrial declared because Defence counsel was granted ample opportunity to review the tape before continuing with the trial. He indicated that he was content to proceed. Therefore, the late disclosure did not impede Abdulhakim’s right to a full and fair trial.
[32] Moreover, for the reasons set out above, I do not believe that if believed, the evidence would reasonably be expected to have altered the outcome of the trial. As such, the Application is dismissed.
Thorburn J.
Released: November 29, 2013
COURT FILE NO.: 11-50000702-0000
DATE: 20131129
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
- and -
KAMAL ABDULHAKIM
Ruling
Thorburn J.
Released: November 29, 2013