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Procedure - Trial judge's duties - Charge or directions - Evidence of witness

Thursday, September 01, 2016 @ 8:00 PM  


Appeal by Bailey from conviction for first degree murder. Three young men entered the home of the victim intending to rob him. The victim was taken to the basement by two of the robbers and shot in the head at close range with a .22 calibre gun. The victim was kneeling or lying on the floor when he was shot. The victim died. The victim’s mother was present during the robbery. The victim’s mother pointed out Bailey in court. Bailey testified that he agreed to participate in the home invasion, but abandoned the plot at the last minute and was not present for the robbery or the shooting. The jury convicted Bailey of first degree murder. Bailey submitted that the trial judge’s instruction on the victim’s mother’s eye witness identification evidence constituted misdirection.

HELD: Appeal allowed. The conviction was quashed and a new trial was ordered. The trial judge’s instruction on eye witness identification evidence constituted misdirection. The instructions simply tracked model jury instructions exactly without tailoring them to the circumstances of the case, thereby failing to equip the jury with the information necessary to properly assess the eyewitness identification. The most important feature of the eyewitness evidence was the total absence of any eyewitness evidence identifying Bailey as one of the robbers until the victim’s mother made an in-court identification of Bailey well into her cross-examination some two and one-half years after the robbery. This singularly significant feature of the eyewitness evidence should have been the starting point and the focal point of the eyewitness evidence instruction. The trial judge’s instructions suggested that the victim’s mother had identified Bailey as one of the robbers at some point other than in her in-court identification. The trial judge should have told the jury that given the very suggestive circumstances in which an in-court identification is made, an in-court identification, standing alone, had little, if any, value as evidence identifying an accused as the person who committed the crime. The trial judge should have next identified the specific features of the evidence that further weakened the evidentiary value of the victim’s mother’s in-court identification. The jury should have been told that Bailey’s admission that he was at the home the day before did not render the victim’s mother’s in-court identification of Bailey as one of the persons at her home on the day of the shooting more reliable. The instruction on eyewitness identification evidence constituted misdirection amounting to an error in law. The proviso could not be applied. The error was far from minor. There was a reasonable possibility that a jury, having regard to the entirety of the evidence, could be left with a reasonable doubt based on Bailey’s testimony. The Crown’s case could not be characterized as overwhelming.