SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CJ 7628
DATE: 2013-02-08
RE: HER MAJESTY THE QUEEN v DAVID TRAN VU, TREY ALEJANDRO DIAZ, NICHOLAS JAMES TALMAGE PERRON and HIEU PHUOC NGUYEN
BEFORE: The Honourable Mr. Justice D.A. Broad
COUNSEL:
Andre Rajna and Sidney A. McLean, for the Crown/Respondent
Y. S. Rahamim, for the Accused Nicholas James Talmage Perron
A. Trica, for the accused David Vu
R. Diniz, for the accused Troy Alexandro Diaz
H. Van Drunen, for the accused Hieu Phuoc Nguyen
HEARD: January 30, 31, February 1, and 5, 2013
P R E – T R I A L R U L I N G S
Charges and Background
[1] The accused are charged with robbery with a firearm, possession of marijuana for the purpose of trafficking and attempted murder. The offences are alleged to have occurred on July 6, 2011 in the City of Waterloo during a drug transaction that went bad.
[2] The Crown alleges that the accused developed a plan to rob the victim Andrew Balogh (“Balogh”) of a large quantity of marijuana, after arranging, through an intermediary, to meet him to complete a purchase of it. It is alleged that, during the meeting, Balogh was struck on the head with the butt end of a handgun and his marijuana was forcibly taken from him. One of the accused is alleged to have pointed the handgun at Balogh and pulled the trigger three times, but the firearm failed to fire.
[3] The Applicant Perron was arrested, along with his girlfriend Tashia Quewezance, on July 7, 2011 while parked in his vehicle at the Comfort Inn in Cambridge Ontario.
[4] Perron’s cell phone, being a Blackberry Torch 9800, was located during a search, under warrant, of his vehicle.
[5] The Waterloo Region Police Services (WRPS) Technical Crime Unit carried out an analysis of the cell phone in January, 2012, however, since it was password-protected, the information on the internal memory of the phone could not be accessed. However, the removable SD and SIMs card located within the phone were extracted and analyzed, revealing several photographs, videos and address book entries.
[6] At the time of the January 2012 search the WRPS did not have the ability to bypass the password on the phone to access its internal memory. However, by July, 2012 the WRPS had acquired technology and training which permitted it to bypass the password for the phone and to access data within it.
[7] A search of the cell phone was authorized by warrant issued July 25, 2012 which revealed various types of data including photographs, text messages, Blackberry messaging records, call logs and more, some of which can be considered incriminating.
Application of Perron for Exclusion of Evidence under Section 24(2) of the Charter
[8] Perron applied for an Order pursuant to sections 8 and 24(2) of the Canadian Charterof Rights and Freedoms excluding at trial all evidence derived from the searches of his cell phone.
[9] The Court heard evidence on the voir dire from Detective Constable Cory Schmidt and Detective Jason Harth, each of the WRPS, in reference to the Application.
[10] At the conclusion of the evidence and before submissions, counsel for Perron advised the Court that he was withdrawing the Application. The Application Record has been endorsed accordingly.
Ruling # 1 - Application of the Crown for an Order for Admission of Extrinsic Evidence
[11] The Crown applied initially for an order that certain text messages allegedly exchanged between Perron and his girlfriend Tashia Quewezance on June 16, 2011, recovered through a search, under warrant, of Ms. Quewezance’s cell phone, as well as two photographs depicting a firearm recovered from Perron’s cell phone be admitted into evidence.
[12] During the course of the voir dire, Crown counsel moved to expand the scope of the Application to include text messages passing between Perron and an individual identified as “Alex.” These text messages are included at Tab 5 of the Crown’s Application Record respecting the admission of expert evidence with respect to slang, street or coded language referred to below. Counsel for Mr. Perron, Mr. Rahamim, took no objection to this expansion of the scope of the Application and, in addition, conceded the admissibility of the text messages passing between Perron and Ms. Quewezance on June 16, 2011. However, he remained opposed to the admission of the text messages between Perron and “Alex” as well as the photographs of the firearms, and the argument proceeded on that basis.
Legal Framework
[13] Traditionally, evidence of similar facts of a discreditable nature proffered for the purpose of leading to a conclusion that the accused is a person likely by his/her character to have committed the offence for which he/she is being tried, is inadmissible. Notwithstanding this, courts have recognized an exception to this general exclusionary rule where the evidence of previous misconduct is so highly relevant that its probative value in the search for truth outweighs any potential for misuse (see R. v. Handy 2002 SCC 56, paras. 31-40).
[14] Where evidence of similar acts is sought to be admitted, the onus is on the Crown to show, on a balance of probabilities, that the probative value of the evidence outweighs its potential for prejudice (see Handy at para. 55).
[15] As indicated by the Supreme Court of Canada in R. v. S.G.G.1997 311 (SCC), [1997] S.C.J. No. 70 at para. 100, “prejudice” for the purpose of this determination, is used in the legal, procedural sense. The enquiry into prejudice does not focus on the effect that the evidence may have on the outcome of the trial, that is, on how powerful it is for the prosecution, but rather on its effect on the right of the accused to make full answer and defence. The question is not whether the evidence may tend to convict the accused, but whether it is likely to convict him unjustly.
[16] Doherty, J.A. pointed out in R v. Watkins (2003), 2003 3874 (ON CA), 181 C.C.C. (3d) 78 (Ont. C.A.) para. 34, citing Handy at para. 504, that probative value can only be measured by reference to the tendency of the evidence sought to be introduced to prove or disprove a specific fact, and before that measurement can take place, the factual issue to which that evidence is directed must be identified.
Photographs of Firearms
[17] The Crown seeks to introduce the photographs to show that Perron had familiarity with and access to firearms, knew how to obtain them, and did so. It states that, on the basis that the robbery alleged in the indictment involved a firearm and demonstrated elements of planning and design, evidence that Perron had possession of, or access to, firearms is relevant to the issues of design or plan and his participation in it.
[18] It is to be seen that the purpose of the introduction of the photographs is not to show that Perron committed similar acts in the past, but rather that he had access to firearms, and therefore had the means to plan the robbery, utilizing a firearm.
[19] The Crown relies on three cases which it says stand for the proposition that evidence that an accused had possession of or access to equipment, documents or weapons consistent with an illegal enterprise is relevant to the issues of design or plan and identification of participants to the design. These cases are R. v. Fengstad [1998] B.C.J. No. 2391 (B.C.C.A.), R. v. Davison, DeRosie and MacArthur (1974) 1974 787 (ON CA), 6 O.R. (2d) 103 (C.A.) and R. v. Gaich [1956] O.J. No. 273 (C.A.).
[20] It is to be noted that, in all three of the cases cited by the Crown, the accused was found to be in actual physical possession of weapons, equipment or documents capable of being used in an illegal enterprise similar to the offences with which they were charged.
[21] In Fengstad the two accused were charged with robbery, being what was described as a “well-planned operation.” The trial judge admitted into evidence guns, holsters and bullets found in the possession of both accused. The weapons were not used in the robbery. The handgun used in the robbery was never recovered. The Court observed, at para. 11, that the evidence seized was capable of revealing a plan, and it was the fact that the accused had ready access to weapons that was of interest.
[22] In Davison, DeRosie and MacArthur the accused were charged with armed robbery. The accused were found to be in possession of various equipment and documentation consistent with planning for a robbery including a transistor radio capable of receiving police transmissions, parts of walkie-talkies, and lists and diagrams pertaining to the design and installation of burglar alarm systems. The Court held, at para. 41, that in the circumstances of the case, the equipment and documents were relevant and admissible to show design. They were also relevant to the issue of identification. In making these findings, the Court relied upon a passage from Wigmore on Evidence that:
The acquisition or possession of instruments, tools or other means of doing the act, is admissible as a significant circumstance; the possession signifies a probable design to use; the instruments need not be such as are entirely appropriate, nor such as were actually put to use.
[23] Similarly, Gaich involved documents actually found in the possession of the accused, namely various blank cheques and cheque books, in a case involving fraudulently endorsed cheques.
[24] In the present case, Perron was not found in possession of a firearm. All that was found were photographs of firearms on his cell phone.
[25] It is noted that the Fengstad case was cited in the more recent case of R. v. Spencer 2003 BCSC 805 at para. 63, as standing for the proposition that “the items that cannot be directly linked to the robbery nevertheless can be viewed as tools of the trade indicating design and planning, together with knowledge on the part of [the accused].”
[26] In my view, there is a significant difference, when considering probative value, between physical evidence found to be in actual possession of an accused consisting of “tools of the trade” pointing to design and planning, and evidence that the accused had photographs of firearms stored on his cell phone.
[27] As laid down in Handy at para. 82, the court is required to assess the cogency of the proffered similar fact evidence in relation to the inferences sought to be drawn, as well as the strength of the proof of the similar facts themselves. Factors to be considered in connecting the similar facts to the circumstances set out in the charge include:
(1) proximity in time of the similar acts; (2) extent to which the other acts are similar in detail to the charged conduct; (3) number of occurrences of the similar acts; (4) circumstances surrounding or relating to the similar acts; (5) any distinctive feature(s) unifying the incidents; (6) intervening events; and (7) any other factor which would tend to support or rebut the underlying unity of the similar acts.
[28] Here the Crown seeks to have the jury at trial draw two inferences from the introduction of the text messages and pictures, firstly, that because he had pictures of firearms on his cell phone he possessed or had access to firearms, and secondly, that because he had access to firearms, he participated in planning the robbery leading to the charges.
[29] In considering the factors listed in Handy, the following observations may be made:
There is no evidence as to when the pictures were taken;
There appears to be little similarity in detail between the photographs and the offences, except that in the pictures a firearm is depicted. However, it is not the firearm used in the offence, which, as indicated above, has not been located;
The photographs are not reflective of actual occurrences involving the use of firearms;
There is little in the way of context to the photographs being found on Perron’s phone. The circumstances of the pictures coming to be on his phone are unknown. Perron is not depicted in the pictures and it is unknown whether he took the pictures, whether the pictures were downloaded from an external source, whether they were transmitted to his cell phone by e-mail, whether someone else had possession of his cell phone and took the pictures, or whether it was his gun which was depicted;
There appear to be no distinctive features unifying the firearm depicted in the pictures, and the offences; and
There are no other factors which would tend to support or rebut the unity of the incidents.
[30] Although the Crown does not seek to introduce the evidence to show mere propensity or general disposition to commit the type of crime charged, its probative value is weak on the issue for which it does seek its introduction. As was pointed out in Watkins, referred to above, it is the tendency of the evidence to prove or disprove a specific fact which is to be measured.
[31] There are two types of prejudice to be weighed against the probative value of the evidence. Moral prejudice has to do with the potential for an inference of guilt based on “bad personhood,” while reasoning prejudice may include juror confusion due to the number of other incidents, and distraction because of the cumulative force of several allegations, which deflect jurors from their task of deciding each charge carefully and separately (see R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33 at paras. 65-68).
[32] The potential for prejudice here is inherent, by leading to the possibility of the jury drawing an inference that, because he had pictures of firearms on his cell phone, Perron was the type of person to be involved in illegal activity involving the use of firearms.
[33] In my view, the Crown has failed to discharge the onus on it to show, on a balance of probabilities, that the probative value of the pictures of firearms found on Perron’s phone, and sought to be introduced into evidence, outweighs its potential for prejudice.
Text Messages between Perron and “Alex” Regarding Drug Transaction
[34] With the consent of defence counsel, Detective Kevin McCarthy was called by the Crown to testify on the voir dire, to provide context for, and interpretation of, the text messages passing between Perron and “Alex.”
[35] Detective McCarthy has been a member of the WRPS since October 1999, serving on the Drug Squad since September 2009. He was seconded to the Guns and Gangs Unit in the fall of 2011. In his role with the WRPS, he has been involved in many “drug buys”, either directly in an undercover capacity, as a handler of confidential informants, or as part of cover teams. He has experience with face-to-face drug transactions, has engaged in telephone and text message conversations with drug dealers, and has listened to many wire-taps involving drug transactions. Over the years he has acquired familiarity and expertise with respect to drug slang and coded language used by those involved in the drug subculture.
[36] Detective McCarthy was asked to interpret an exchange of text messages between Perron and the individual identified as “Alex” extracted from Perron’s Blackberry Torch 9800. The exchange took place over the period from June 30, 2011 to July 3, 2011 and revealed Perron communicating with “Alex” about purchasing large quantities of different grades of marijuana. The parties discussed the different grades that “Alex” had available or could procure, what quantities Perron was interested in, and the prices of various grades in different quantities.
[37] As it was apparent that Perron had not dealt with “Alex” previously, the parties were engaged in establishing a new business relationship. Accordingly, tentative dealings were discussed initially, aimed toward establishing mutual trust. They discussed a meeting place for the initial transaction. Following the first transaction, Perron expressed satisfaction and an interest in doing more business with “Alex”. There was discussion about doing a deal for 5 lbs of marijuana, described by Officer McCarthy as a significant transaction.
Discussion
[38] The Crown argues that, on the authority of S.G.G. at para. 65, evidence which is directly relevant to the Crown’s theory of the case is admissible even though it may also demonstrate the bad character of the accused, as long as its probative value outweighs its prejudicial effect.
[39] The Crown submits that the text messages between Perron and “Alex” are relevant and probative in reference to its theory that Perron, after moving to Ontario from Alberta, began setting up “jobs” for his Alberta associates, being “drug rip-offs,” whereby they would set up a drug deal and steal the drugs from the seller. It is stated that the text messages help illustrate the plan or design for the “jobs” by showing Perron setting up a deal to buy a large quantity of marijuana. The Crown points to the evidence of Perron sending “Alex’s ” telephone number to “Veit” (alleged to be the accused Vu), who, within 17 seconds of receipt of the number, sent a text message to “Alex” to initiate contact regarding a proposed drug deal.
[40] Combined with the evidence of the assault on Balogh during the alleged drug rip-off which forms the basis of the charges, the Crown argues that the jury may infer from the exchange of text messages between Perron and “Alex” that the group from Alberta was planning to come to Ontario to carry out the drug rip-offs.
[41] Assuming that the evidence is relevant to the Crown’s theory, the question becomes whether its probative value outweighs its prejudicial effect.
[42] In the case of R. v. McDonald, 2000 16871 (ON CA), 2000 135 O.A.C. 365 (C.A.) the Court of Appeal adopted the analytic framework laid down by the Supreme Court of Canada in R. v. B. (L.) (1990), 1990 142 (SCC), 55 C.C.C. (3d) 1 (S.C.C.), at 494, for assessing whether the probative of similar fact evidence outweighs its prejudicial effect, as follows:
In assessing the probative value of the proposed evidence, consideration should be given to such matters as:
(i) the strength of the evidence; (ii) the extent to which the proposed evidence supports the inference(s) sought to be made from it (this factor will often correspond to the degree of similarity between the prior misconduct and the conduct forming the subject-matter of the charge); and (iii) the extent to which the matters it tends to prove are at issue in the proceedings.
In assessing the prejudicial effect of the proposed evidence, consideration should be given to such matters as:
(i) how discreditable it is; (ii) the extent to which it may support an inference of guilt based solely on bad character; (iii) the extent to which it may confuse issues; and (iv) the accused's ability to respond to it.
[43] In my view, the exchange of text messages between Perron and Alex, does not lend significant support to the inference that the Crown seeks by its introduction – namely that Perron was organizing a series of drug rip-offs in concert with his associates from Alberta. There is nothing in the text messages themselves, or in other evidence, to indicate that “Alex” was being set up as the target of a drug rip-off. From that standpoint there is not a high degree of similarity between the prior misconduct and the conduct forming the subject-matter of the charges.
[44] The text message evidence in question establishes nothing more than the involvement of Perron in the criminal conduct of arranging a sizable marijuana deal. As such, it creates the risk of reasoning prejudice, in that the jury may be led to draw an inference that because Perron was the type of person to be engaged in the discreditable conduct of arranging a large drug deal with “Alex,” he was capable of planning a drug rip-off of Balogh.
Disposition
[45] On the basis of the foregoing, the Application of the Crown to introduce the extrinsic evidence of the photographs of the firearms found on Perron’s cell phone, and the exchange of text messages between Perron and “Alex,” is dismissed. On the basis of the concession of the defence, the text messages between Perron and Ms. Quewezance on June 16, 2011 are admitted into evidence.
Ruling # 2 - Application of the Crown for an Order for the Qualification of an Expert and Admission of Expert Evidence on the issues of Firearm Identification and Interpretation of
Slang, Street and Coded Language
Background
[46] The Crown has applied for an order declaring Michael Press as an expert and qualified to give opinion evidence on the issue of firearm identification, as well as the interpretation of slang, street and coded language pertaining to firearms, motor vehicles and related terminology, as used in exchanges of text messages between Perron and other individuals recovered from his cell phone, and that of Ms. Quewezance.
[47] No issue was been taken by defence counsel to the qualification of Mr. Press to give expert opinion evidence on firearm identification. The argument therefore focused on the application for permission to have him give opinion evidence respecting what was termed “covert language.”
[48] Mr. Press testified on the voir dire and his updated Statement of Qualifications was entered as an exhibit, as was his written report entitled “Report regarding Coded, Street and Slang Firearm Language” completed January 14, 2013.
[49] Mr. Press’ Statement of Qualifications outlines his tenure with the Toronto Police Service since July, 1987, where he is currently a Senior Firearms Officer assigned to the Organized Crime Enforcement – Gun and Gang Task Force – Firearm Investigation & Analysis Unit. The Statement also details his investigation experience and acquired expertise in reference to street and coded language pertaining to firearms, as well as well as with respect to the street prices in the illegal trafficking of firearms and related items. He has been qualified to give expert testimony with respect to these topics in numerous occasions in the Ontario Superior Court of Justice and the Ontario Court of Justice, as well as in the Supreme Court of Nova Scotia. As indicated below, the defence takes no issue with respect to Mr. Press’ qualifications to give the expert opinion evidence sought by the Crown.
[50] Mr. Press was provided by Crown counsel with a case synopsis which described the background of each of the accused and set forth a detailed outline of the factual allegations in reference to the charges. Crown counsel also provided Mr. Press with copies of specific text messages he was asked to analyze or interpret, together with a series of questions posed by Crown counsel in reference to them. He was also provided with all of the text messages retrieved as part of a Production Order by officers involved in the investigation, in order to provide context for the interpretation of the specific text messages he was asked to review.
[51] The first set of text messages which Mr. Press was specifically asked to review were between Perron and Ms. Quewezance, and in particular the interpretation of the terms “tool” and “blast.”
[52] He was also asked to review an exchange of text messages between Perron and an individual identified as “Mob”, between Perron and an individual identified as “K G”, between Perron and an individual identified as “Sims,” and Perron and an individual identified as “Veit,” alleged to be the accused Vu. In these exchanges the words “tool,” “whip,” and “ghost” (in reference to a cell phone) were utilized.
[53] Finally, Mr. Press was asked to review a BlackBerry Messenger (BBM) conversation between Perron and an individual identified as “Jonas” in which the terms “tool” and “whip” were also utilized.
[54] In his report, and in his viva voce evidence on the voir dire, Mr. Press provided analyses of the various exchanges of text messages and BBM conversations, including the meanings to be given to the terms “tool”, “whip” and “ghost”. In his testimony Mr. Press described the methodology which he employed in his analysis and the sources of information for the meanings of coded or “covert” language.
Discussion
[55] In R. v. Abbey 2009 ONCA 624, [2009] O.J. No. 3534 (C.A.), leave refused [2010] S.C.C.A. No. 125, Doherty, J.A. set out a two-stage analysis for admission of expert evidence, incorporating and re-stating the test previously established by the Supreme Court of Canada in R. v. Mohan 1994 80 (SCC), [1994] 2 S.C.R. 9.
[56] In Mohan at para. 17, the Supreme Court stated that the admission of expert evidence depends upon the application of four criteria, namely (a) relevance; (b) necessity in assisting the trier of fact; (c) the absence of any exclusionary rule; and (d) a properly qualified expert.
[57] The Court of Appeal in Abbey directed that the trial judge must, as part of a gate-keeper function, engage in a cost-benefit analysis to determine whether the proposed evidence is sufficiently probative to justify its admission, despite the prejudice that may flow from its admission.
[58] The defence here concedes that the proposed evidence is relevant, that there is no applicable exclusionary rule and that Mr. Press is properly qualified to give the evidence. It challenges the admission of the opinion evidence on two grounds, first, on the basis that the Crown has not demonstrated that it is necessary to assist the jury, and second, that it should be excluded at the gate-keeper stage of the analysis.
Necessity
[59] In support of the argument that the admission of the expert evidence is not necessary, Mr. Diniz argued that the requirement for Mr. Press’ interpretation is limited to three words “tool”, “whip” and “blast,” and that the jury is capable to coming to a conclusion on the meanings to be ascribed to those words from the context of the text messages, without the assistance of Mr. Press’ opinion. He points to the passage at paras. 22 -23 of Mohan where Sopinka, J. stated that the need for the expert evidence is to be assessed in light of its potential to distort the fact-finding process. Justice Sopinka quoted from the English case of R.v. Turner [1975] Q.B. 834 at 841 where the point is made that the fact that although an expert witness may have impressive credentials that fact alone does not make his or her opinion on matters of human nature and behavior within the limits of normality any more helpful than that of the jurors themselves, but there is a danger that they may think it does. However, it is noted that Justice Sopinka is quick to add at para. 23 that the possibility that evidence will overwhelm the jury and distract them from their task can often be offset by proper instructions.
[60] In my view, the nature of the opinion evidence sought by the Crown to be introduced is relatively straightforward and simple. It does not require Mr. Press to undertake complex scientific enquiries or mathematical calculations, nor to express his opinion in complicated or arcane language which may have the potential to overwhelm or confuse the jury. He simply brings to the task his lengthy and varied experience in listening to and reviewing instances when coded or “covert” language was used by persons charged or who were under investigation for crimes involving the illegal use of firearms. He testified in a plain and straightforward manner, using language which a jury would readily understand without difficulty. What he was able to convey was an interpretation of certain terms used in the text messages with meanings outside of their normal dictionary meanings. I am satisfied that Mr. Press possesses knowledge and experience which allow him to offer an opinion on the meanings of those terms which will go beyond that of the jury (see R. v. Sandham [2009] O.J. No. 4602 (SCJ) at para. 3). I also find that the fact that the terms requiring interpretation are few in number does not detract from the necessity for the expert testimony. Even the use of one term in a manner outside its normal dictionary meaning, and in a manner and context which goes beyond the experience and expertise of the jury, may give rise for the need for this type of opinion evidence.
[61] Moreover, I find that limiting instructions given to the jury may effectively correct any risk, however remote, of the jury being overwhelmed by the opinion evidence. In this respect I adopt the words of Laforme, J. in R. v. Kinkead, [1999] O.J. No. 1498 at para. 18 where he stated, in a different, but still applicable, context:
It is not sufficient, without proof, to allege a prejudice that is one of mere speculation or conjecture. As I said above, I am of the view that juries are intelligent, well meaning and conscientious citizens who take their oaths very seriously. Unless common sense or some other proof indicates the contrary, I believe that juries respect and abide by their sworn duties and comply with the instructions of the court.
[62] Although Ms. Quewezance testified on the preliminary inquiry with respect to what she understood Perron to have meant by the use of the terms “tool” and “whip” in text messages to her, I did not understand Mr. Diniz to strenuously argue that the availability of Ms. Quewezance to testify on the meaning of those two terms relieved against the necessity for Mr. Press’ evidence. In any event, I would not give effect to such an argument. The decision to call or not to call a particular witness is an exercise of Crown discretion and it is not appropriate, by a ruling on the admissibility of Mr. Press’ expert evidence, to effectively fetter that discretion but forcing the Crown to call Ms.Quewezance on this relevant issue. Moreover, she was only party to one text message exchange, and therefore can only testify as to what she understood Perron to mean in his text messages to her. She would not be a position to offer any relevant evidence on the exchanges between Perron and the other parties identified above. Her lay opinion on the meaning of the terms, even if admissible, would not be of equivalent quality to that of Mr. Press.
Gatekeeper Inquiry
[63] It is useful to observe that, in introducing the concept of the trial judge’s gatekeeper role in Abbey at para. 79, Doherty, J.A. observed that it does not involve the application of bright line rules, but instead requires an exercise of judicial discretion. The trial judge is to carry out a case-specific cost-benefit analysis, which may not admit of a straight-forward “yes” or “no” answer.
[64] At para. 87, Justice Doherty observed that the “benefit” side of the evaluation requires a consideration of the probative potential of the evidence and the significance of the issue to which the evidence is directed. At para. 90, he indicated that the “cost” side of the ledger addresses the various risks inherent in the admissibility of expert opinion evidence as “consumption of time, prejudice and confusion.”
[65] At para. 93 of Abbey Justice Doherty acknowledged that the cost-benefit analysis also deals with the question of necessity, involving a consideration of whether the opinion evidence is necessary to a proper adjudication o the facts to which the evidence is directed.
[66] Mr. Diniz argued that the necessity for the evidence was so minimal that it could not outweigh the inherent prejudice that would come with its admission.
[67] Having found that the evidence is necessary, in that it will provide important information for consideration by the jury on the meaning of words not used according to their ordinary dictionary meanings, the question becomes whether the benefit of having that evidence is out-weighed by risk of “consumption of time, prejudice and confusion.” In my view, and in the exercise of my discretion, the answer is “no”. The evidence of Mr. Press will be relatively brief and succinct, it will not confuse the jury and, in my view, the jury will be well-equipped, guided by an appropriate instruction, to accept or reject his opinion, or to give it whatever weight it considers to be justified.
[68] Mr. Diniz did not submit that, if Mr. Press were allowed to testify, there should be any particular boundaries set around it, or that any portions of his Statement of Qualifications should be excised, to guard against the jury being overwhelmed. I am satisfied that these measures are not required in the circumstances, and that, armed with an appropriate instruction at trial, the jury will be in a position to deal with Mr. Press’ opinion evidence appropriately.
Disposition
[69] The Application of the Crown to qualify Michael Press as an expert and to admit his opinion evidence is therefore allowed.
D A. Broad J.
DATE: February 8, 2013