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APPEALS - Miscarriage of justice - Powers of appellate court - To receive new evidence

Wednesday, September 29, 2021 @ 6:07 AM  

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Appeal by Moazami from his convictions on 30 counts of prostitution-related, sexual and human trafficking offences. Application by the appellant to adduce fresh evidence of the lead investigator’s misconduct. The offences involved 11 complainants between the ages of 14 and 19. The appellant took provocative photographs of the complainants and posted them on Internet advertising sites, supplied some of the complainants with drugs, transported complainants to locations for the purposes of prostitution, fixed the rates for their services, and retained income from their services. The appellant testified at trial that he provided protection and security to the complainants. He denied engaging in parasitic relationships and asserted the complainants, who he thought were not underage, consented to sexual activity with him. The trial judge found the appellant was not credible. She determined the appellant knew each complainant was underage or failed to take reasonable steps to ascertain their ages and engaged in exploitive behaviour. The lead investigator was subsequently suspended for engaging in sexual misconduct with a witness and complainants in the appellant’s trial. The conduct occurred, with one exception, after the complainants and witness testified. The investigator was criminally convicted in relation to some of the misconduct.

HELD: Appeal dismissed. Application to admit fresh evidence dismissed. The fresh evidence did not meet the bare threshold of admissibility. It was not admissible as investigative hearsay. Conduct by the investigator that occurred after the impugned witnesses testified could not have affected the appellant’s fair trial rights. There was no evidence capable of supporting the allegation that the evidence of any of the complainants or witnesses was changed to the prejudice of the appellant. There was no reasonable possibility the appellant’s trial was unfair. The complainants were abused by both the appellant and the investigator. Giving the benefit of a new trial to the appellant, and requiring the complainants to testify again, would bring the administration of justice into disrepute and impugn the integrity of the justice system. The appellant did not establish the ineffective assistance of counsel in their cross-examination of two complainants.

R. v. Moazami, [2021] B.C.J. No. 1946, British Columbia Court of Appeal, M.E. Saunders, E.A. Bennett, J.J.L. Hunter JJ.A., September 8, 2021. Digest No. TLD-September272021006