ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 15-4910

DATE: 2015-08-17

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

MATO JOSIPOVIC
Applicant

Stephen O’Brien and Craig Fraser, for the Respondent

Sandee Smordin, for the Applicant

HEARD: August 7, 2015

RESTRICTION ON PUBLICATION

The information contained herein is subject to the publication ban that was imposed at the preliminary hearing pursuant to s.539 of the Criminal Code

BRAID, J.

Reasons for Decision on Certiorari Application

I. OVERVIEW

[1] On February 6, 2015, Mato Josipovic (“Mato”) and John Josipovic (“John”) were committed to stand trial on a charge of first degree murder following a preliminary hearing. Mato has brought an application for certiorari seeking to quash the committal for trial.

[2] In the early morning hours of November 9, 2013, James Louis Malone (“Malone”) was killed. Mato and John Josipovic were arrested and jointly charged with first degree murder of Malone. While it is indisputable that Malone was killed by a gunshot wound to the back of his head, the sequence of events leading up to his death and the identity of those involved were live issues at the preliminary hearing.

[3] The applicant seeks an order quashing his committal to stand trial, and raises three issues on this application:

i) He argues that the preliminary hearing judge failed to analyze and weigh direct exculpatory evidence on the issue of identification;

ii) He argues that the preliminary hearing judge failed to analyze and weigh direct exculpatory evidence on the issue of the timeline and opportunity to commit the offence; and

iii) He argues that there is no evidence of planning and deliberation.

II. FACTS

[4] Mato and John are brothers. They had known Malone for many years and the three men attended the same schools as children.

[5] Just after midnight on November 9, 2013, Malone and Mato met at a pool hall on Main Street East in Hamilton. Cell phone records between the two of them and evidence of Malone’s girlfriend suggest that the meeting was pre-arranged. There was an initial friendly greeting. After about 15 minutes, Malone and Mato went outside. Malone and his associates attacked Mato, assaulted him and stole his truck. Police later found Mato’s DNA on Malone’s rings that Malone was wearing that evening.

[6] After the fight, Mato went to a nearby 7-11 store. He called a taxi and then called his brother John. He did not take the taxi when it arrived. Cell phone records demonstrate that, after John received the initial call from Mato, he left his home in Grimsby and drove toward Mato’s location at the 7-11 store. Cell phone records also show that John arrived in the area of the 7-11 store at 1:18 a.m. Video surveillance from inside the 7-11 store shows that Mato looked out the store window and then quickly left the store at 1:19 a.m.

[7] Mato did not have a shotgun at the pool hall or at the 7-11 store. It is the Crown’s theory that Mato called John to pick him up and that John brought a shotgun in his pickup truck.

[8] After the altercation outside the pool hall, Malone returned to his residence on Robins Avenue, which is approximately one and half kilometres from the 7-11 store. During the time that Mato was in the 7-11 store, Malone called Mato and they spoke for 8 minutes and 25 seconds. Malone’s girlfriend overheard Malone on the phone just before he left the house, saying “Bro, it doesn’t have to be this way. Come get your keys.” It is the Crown’s theory that she overheard Malone speaking to Mato a few minutes before the shooting started.

[9] Malone left his home to take his dogs for a walk. A short time later, two men in a pickup truck confronted Malone in front of 35 Robins Avenue. One of the men shot at Malone, grazing his shoulder and leaving part of the collar area of Malone’s shirt at the scene. The front door window of 35 Robins was shattered by the shotgun blast. The first call to 911 to report shots was at 1:23 a.m. Malone fled along Cannon Street East, with a male carrying a shotgun chasing on foot and followed by the pickup truck.

[10] Malone ran through the property of St. Anne’s School at Britannia Avenue and Kenilworth Avenue North. The pickup truck followed him through the property, and caught up to Malone at an auto repair shop. The passenger exited the pickup truck and chased Malone around the area, firing two more shots.

[11] Malone ran again and the pickup truck chased him at high rates of speed. One witness described that the pickup truck was trying to guide, direct and block Malone and that it looked like the men in the truck were working together to murder him. Malone crossed the street, the pickup truck turned around and another shot came from the passenger side window of the pickup truck, shattering a store front window.

[12] The passenger of the pickup truck got out and shot at Malone at close range, missing Malone and shattering a second store front window. He then struck Malone over the head with the shotgun, using so much force that the wooden stock of the gun broke in half. Malone collapsed to the ground from the force of the impact. The man with the shotgun stood over Malone and fired one shot at close range to the back of Malone’s head, killing him. The two males then fled the scene.

[13] A witness to the fatal shot provided police with a partial licence plate number that was linked to John’s pickup truck. Shotgun casings were found at 35 Robins, the auto repair shop and the location where Malone was killed. All of the shots were fired by the same gun.

[14] DNA from Malone’s blood was found on the exterior front and inside the passenger side seat of John’s pickup truck, which was found in John’s home garage. DNA from Malone’s blood was also found on a car parked at the auto repair shop.

[15] There was no recorded cell phone contact between John and Mato between 1:18:40 a.m. and 2:37:27 a.m. The cell phone contact between their respective phones began again at 2:37:27 a.m near their homes in Grimsby. It is the Crown’s theory that the two men were together after Mato left the 7-11 store and they went back to Grimsby together. At 8:10 a.m., the police observed John tending to a large fire on his property. Police later examined that fire pit, as well as one on Mato’s property. Both fire pits contained pieces of burnt clothing.

[16] The case against the Josipovic brothers is almost entirely circumstantial. At the preliminary hearing, the Crown relied on the evidence described above, as well as the following:

i. Cell phone records of the Josipovic brothers and of Malone;

ii. Video recordings from the pool hall, inside the 7-11 store and at the schoolyard;

iii. 911 calls from witnesses, the times of which were recorded by police dispatch; and

iv. Eyewitness evidence of numerous witnesses who observed the events.

III. LOWER COURT RULING

[17] In the ruling on committal for trial, Justice Campling recognized that the primary issue at the preliminary hearing was the identity of the two males in the truck:

There is no doubt that whoever the two people were inside the truck that chased Mr. Malone through the streets of east end Hamilton, both people have ample evidence against them that they were attempting to commit and eventually succeeded committing a planned and deliberate murder of Mr. Malone. The passenger being the shooter and the driver clearly, on all the evidence, driving in such a way as to pursue Mr. Malone, get closer to him and enable the passenger to shoot him. The only real issue for me is whether there is enough evidence that either or both of you were the occupants of that pickup truck. There is no eyewitness identification of either of you being in the truck. The evidence is entirely circumstantial.

[18] The court recognized that the test on the preliminary hearing is “some evidence upon which a reasonable jury, properly instructed in the law by a trial judge, could find (you) guilty beyond a reasonable doubt”. The court stated that the case of R. v. Arcuri permits a limited weighing of the evidence to determine what inferences are reasonable in a circumstantial case.

[19] The court found that there was circumstantial evidence of motive. Mato had been assaulted by Malone and another person several hours before the murder, and they had stolen Mato’s truck. The DNA evidence, both on Malone’s rings and on John’s truck, provided additional pieces of circumstantial evidence. The court found that an inference could be drawn, from the cell phone records and other circumstantial evidence, that John was recruited to come and help with the truck and to help Mato exact revenge. A shotgun came from the truck, which came to be the murder weapon.

[20] At the preliminary hearing, defence counsel made detailed submissions regarding timelines. It was the position of defence counsel that the timeline was exculpatory and that Mato lacked opportunity to commit the offence. The court considered the submissions on timelines and recognized that there was more than one conclusion that would be available to a trier of fact as to when the chase of Mr. Malone started and when the first shot was fired. The court concluded that the interpretation of the evidence must be left for the jury to decide.

[21] On all of the evidence, the court was satisfied that there was sufficient evidence to commit both accused to stand trial.

IV. ISSUES

[22] The following are the issues raised by this application:

A. The role of the preliminary hearing judge.

B. Analysis of exculpatory evidence.

C. Evidence of planning and deliberation.

V. ANALYSIS

A. The Role of the Preliminary Hearing Judge

[23] The role of the preliminary inquiry judge is circumscribed. In R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, the Supreme Court of Canada established that a preliminary inquiry judge who fails to consider the whole of the evidence, or weighs the evidence beyond the limits established in R v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, commits jurisdictional error. The limited weighing of the evidence in circumstantial cases simply requires an assessment of whether there is evidence from which the matter in issue may be reasonably inferred. If the preliminary inquiry judge prefers an inference favourable to the accused over an inference favourable to the Crown, then he exceeds his jurisdiction by deciding an issue reserved for the trial judge and misconstrues the nature of his task under the Criminal Code. In addition, if the preliminary inquiry judge fails to consider the whole of the evidence, he also steps outside his jurisdiction.

[24] A preliminary inquiry judge may not test the quality or reliability of the evidence, nor weigh the evidence for competing inferences in determining whether there is sufficient evidence for committal. Those tasks are reserved for the trier of fact (see R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601).

[25] Pursuant to s. 548(1) of the Criminal Code, the jurisdiction of the preliminary inquiry judge is limited to a determination of whether there is some evidence which could reasonably support a conviction. The Court must determine whether, if the Crown’s evidence is believed, it would be reasonable for a properly instructed jury to infer guilt (see R. v. Arcuri, supra). A “scintilla of evidence” with respect to each of the requisite elements of the offence is sufficient for committal to stand trial (see R. v. Skogman, 1984 22 (SCC), [1984] 2 S.C.R. 93; R. v. Mathisen, [2004] O.J. No.2731 (C.A.)).

[26] In a circumstantial case, the preliminary inquiry judge may engage in a limited weighing of the evidence, but only to the extent of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing is limited. The judge does not ask whether the evidence is sufficient to prove the accused guilty beyond a reasonable doubt. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.

B. Analysis of Exculpatory Evidence

[27] In this case, the applicant argues that there was exculpatory eyewitness identification evidence. There are only two witnesses who provided descriptions of the shooter, and both of those descriptions did not match Mato’s description. The applicant states that the preliminary hearing judge failed to analyze and weigh direct exculpatory evidence on the issue of identification.

[28] However, this argument completely ignores the circumstantial evidence of identity. Reading the decision in its entirety, the preliminary hearing judge clearly recognized the lack of direct identification of the persons charged. The court made no error in its analysis of the identification evidence.

[29] The applicant also argues that there was exculpatory evidence regarding the timeline, which leads to the conclusion that Mato could not have been present at the shooting. Mato was captured on the video at the 7-11 store until 1:19 a.m. The applicant makes reference to a number of witnesses who estimated the time of the first shots to be at a time that Mato could not have shot them. The applicant also states that it would have been impossible for Mato to travel from the 7-11 store to 35 Robins in sufficient time before the first shooting is reported to have occurred. The applicant argues that the preliminary hearing judge failed to analyze and weigh this direct exculpatory evidence on the issue of the timeline and opportunity to commit the offence.

[30] However, this argument breaks down when one considers that there is no master clock that all of the timekeeping portions of the evidence are bound to follow. While the clock on the 7-11 store video, the Hamilton Police Service 911 system and the cell phone company system may not be exactly synchronized, the events that are captured are close enough in proximity to permit inferences to be drawn regarding the sequence of events. It is the sequence of events that must be determined by the trier of fact based on all of the evidence.

[31] The preliminary hearing judge recognized that there should be a limited weighing of the evidence to determine the reasonableness of the inferences to be drawn from the circumstantial evidence adduced at the inquiry considered as a whole. He properly noted that are contrary inferences and arguments that can be made regarding the timeline, but the interpretation of the evidence “is for a jury to decide”.

[32] The court analyzed the evidence and the inferences that would be available to a jury. He concluded that there was sufficient evidence to commit. The preliminary hearing judge committed no error in so doing.

C. Evidence of Planning and Deliberation

[33] Murder is first degree murder when it is planned and deliberate. Planning and deliberation can relate either to an intention to kill or an intention to cause bodily harm that is likely to result in death (see R. v. Nygaard, 1989 6 (SCC), [1989] S.C.J. No.110 (Ont.C.A.)). The evidence of planning and deliberation need not be overwhelming to commit an accused to trial on a charge of first degree murder (see R. v. E.B. [2004] O.J. No.3528 (C.A.)).

[34] The applicant argues that there was no evidence of planning and deliberation in this case. He relies on the decisions of R. v. Nygaard, supra, and R. v. Ivall 2011 ONSC 2677 (S.C.J.) in which the courts defined deliberate as “considered”, “not impulsive”, “slow in deciding” and “cautious”.

[35] The cell phone records demonstrate that Mato and John spoke to each other three times in the hour before Malone died. Those cell phone conversations were 55 seconds, 57 seconds and 44 seconds long. The applicant essentially argues that these brief telephone conversations do not provide sufficient evidence of planning and deliberation.

[36] The defence also argues that, since Mato called a taxi from the 7-11 store, there is evidence that Mato planned to leave the area rather than staying to commit a murder.

[37] I find, however, that a properly instructed jury could draw an inference that there was planning and deliberation based on the following evidence:

i. Malone attacked Mato and stole his truck, which is some evidence of a possible motive.

ii. Mato called John after the fight. The inference can be drawn that John came in his pickup truck and picked up Mato, who did not have a gun at the pool hall or in the 7-11 store. An inference can be drawn that John brought the gun in his truck.

iii. The first shot at 35 Robins grazed Malone’s shoulder and left part of the collar area of Malone’s shirt at the scene. An inference can be drawn that the shot was aimed at Malone’s upper body intending to kill him.

iv. The men in the vehicle chased Malone to 35 Robins; shot at him; chased him through the school yard and car dealership; shot at him; chased him and cornered him; shot at him; knocked him down with the gun; and then shot him at close range in the back of the head. The continuous, deliberate series of actions of the two men in the pickup truck provide some evidence that it was planned and deliberate.

v. A witness who observed Malone’s final movements described that the pickup truck was trying to guide, direct and block Malone and that it looked like they were working together to murder him.

[38] In the recent decision of R. v. Hall [2015] O.J. No. 1439, the Ontario Court of Appeal emphasized that a preliminary hearing judge must consider the whole of the evidence:

The argument advanced at the preliminary inquiry and on the motion to quash, and repeated here, is commonplace in cases in which the prosecutor seeks to establish the liability of an accused on the basis of circumstantial evidence. What is essentially a single ongoing event is subjected to a metaphysical, frame-by-frame dissection. Each item of evidence is examined in isolation, shorn of its context, then cast aside if a competing inference can be conjured. But such an exercise is to no avail. At each level, first instance, judicial review and on appeal, it is the whole of the evidence that is to be considered. Each item in relation to the others, and to the evidence as a whole. It is all of them together that may constitute a proper basis for committal or conviction as the case may be.

[39] In this case, a trier of fact will consider the whole of the evidence, not just the time that the two men spoke on the phone, to determine whether there was planning and deliberation. The evidence is capable of supporting the inference that the murder was planned and deliberate. The preliminary hearing judge committed no error on this issue.

VI. CONCLUSION

[40] The preliminary hearing judge determined that there was sufficient evidence to commit the applicant on a charge of first degree murder. In doing so, the court committed no error. Ultimately, it will be for a jury to decide which inferences to prefer and whether the Crown has proven the case beyond a reasonable doubt.

[41] The application for certiorari is therefore dismissed.

BRAID, J.

Released: August 17, 2015

COURT FILE NO.: 15-4910

DATE: 2015-08-17

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN
Respondent

– and –

MATO JOSIPOVIC
Applicant

REASONS FOR DECISION ON CERTIORARI APPLICATION

BRAID, J.

Released: August 17, 2015