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Five Ottawa men who were found guilty of a violent and bloody 2012 home invasion at gunpoint have had their convictions overturned and won new trials after an appeal court ruled that the trial judge’s lengthy questioning of defence witnesses and his instructions to the jury revealed that he was so biased against the defendants that it prejudiced their right to a fair trial.
“The record shows that the trial judge questioned defence witnesses and charged the jury in a manner that evinced his disbelief in the defence theory of the case. In my view, the cumulative effect of the trial judge’s interventions, and comments in his charge, prejudiced the appellants’ right to a fair trial,” the Ontario Court of Appeal ruled in a decision released on Wednesday.
“The tenor of the trial judge’s questions could leave a reasonable person with no other impression except that the trial judge did not believe the defence witnesses. Indeed, it appeared that the trial judge viewed their evidence as incredible.”
The appeal court said that Ontario Superior Court Justice Albert Roy was anything but impartial when it came to defence witnesses, and improperly called upon two of them to give explanations for the evidence of others, “undoubtedly leaving the impression that such explanations were not forthcoming because the other witnesses were telling the truth.”
The judge was also criticized for ad-libbing his instructions to the jury before they went into deliberation.
The draft of the charge to the jury had already been reviewed by defence lawyers and the Crown, and the judge had received their comments. But while instructing the jury the judge strayed from the script and added his own commentary “on the fly” in what the appeal court noted was generally a risky step and should be avoided.
The questions the judge asked witnesses, and the manner in which they were asked, “seriously compromised the appearance of a fair and impartial trial. There could be no doubt in the minds of the jurors, or to an outside reasonable observer, that the trial judge had aligned himself with the Crown in this prosecution. That impression was only reinforced by the comments offered by the trial judge during the course of his jury instructions.”
In 2013, a jury returned with guilty verdicts for Dennis Hungwe, Moussa Daoui, Richard Ellis, Geovanni Ellis and Christian Nkusi after a 20-day trial.
“Your verdict is certainly supported by the evidence,” Judge Albert Roy told the jurors at the time.
It was a violent home-invasion targeting a reputed drug dealer and onetime pimp. His three children were home when men stormed in demanding drugs and money. Their target was pistol-whipped, slashed with a knife and later tied up with a telephone cable.
The invasion was foiled after a friend hiding in the house called 911. The police surrounded the house, made quick arrests and found a loaded handgun in the basement.
The convictions that are now set aside included conspiracy, robbery, possession of a prohibited firearm, pointing a firearm, forcible confinement and varying degrees of assault.
The five men will now await a new trial.
The defence lawyers who won the new trials include Michael Davies, Meaghan McMahon, Anthony J. Does, John Hale and prominent appeal lawyer Howard Krongold.
gdimmock@postmedia.com
http://www.twitter.com/crimegarden
查看原文...
“The record shows that the trial judge questioned defence witnesses and charged the jury in a manner that evinced his disbelief in the defence theory of the case. In my view, the cumulative effect of the trial judge’s interventions, and comments in his charge, prejudiced the appellants’ right to a fair trial,” the Ontario Court of Appeal ruled in a decision released on Wednesday.
“The tenor of the trial judge’s questions could leave a reasonable person with no other impression except that the trial judge did not believe the defence witnesses. Indeed, it appeared that the trial judge viewed their evidence as incredible.”
The appeal court said that Ontario Superior Court Justice Albert Roy was anything but impartial when it came to defence witnesses, and improperly called upon two of them to give explanations for the evidence of others, “undoubtedly leaving the impression that such explanations were not forthcoming because the other witnesses were telling the truth.”
The judge was also criticized for ad-libbing his instructions to the jury before they went into deliberation.
The draft of the charge to the jury had already been reviewed by defence lawyers and the Crown, and the judge had received their comments. But while instructing the jury the judge strayed from the script and added his own commentary “on the fly” in what the appeal court noted was generally a risky step and should be avoided.
The questions the judge asked witnesses, and the manner in which they were asked, “seriously compromised the appearance of a fair and impartial trial. There could be no doubt in the minds of the jurors, or to an outside reasonable observer, that the trial judge had aligned himself with the Crown in this prosecution. That impression was only reinforced by the comments offered by the trial judge during the course of his jury instructions.”
In 2013, a jury returned with guilty verdicts for Dennis Hungwe, Moussa Daoui, Richard Ellis, Geovanni Ellis and Christian Nkusi after a 20-day trial.
“Your verdict is certainly supported by the evidence,” Judge Albert Roy told the jurors at the time.
It was a violent home-invasion targeting a reputed drug dealer and onetime pimp. His three children were home when men stormed in demanding drugs and money. Their target was pistol-whipped, slashed with a knife and later tied up with a telephone cable.
The invasion was foiled after a friend hiding in the house called 911. The police surrounded the house, made quick arrests and found a loaded handgun in the basement.
The convictions that are now set aside included conspiracy, robbery, possession of a prohibited firearm, pointing a firearm, forcible confinement and varying degrees of assault.
The five men will now await a new trial.
The defence lawyers who won the new trials include Michael Davies, Meaghan McMahon, Anthony J. Does, John Hale and prominent appeal lawyer Howard Krongold.
gdimmock@postmedia.com
http://www.twitter.com/crimegarden
查看原文...
