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Criminal Law - Procedure - Trial judge’s duties - Assessing credibility of witnesses - Charge or directions - Defences - Evidence of witnesses

Thursday, February 09, 2017 @ 7:00 PM  


Appeal by the accused, Berry, from a conviction and sentence for second degree murder. The accused shot and killed the victim in the doorway of the victim’s apartment after using another individual, Jovanovski, as a decoy to lure the victim from the apartment. Six shots were fired at close range. Four shots struck the victim in the head. One shot struck his neck and the other struck his chest. The accused fled the scene. He was arrested approximately 18 months later on an unrelated matter. Once identified, the accused was charged with first degree murder. Jovanovski pled guilty to manslaughter for his role in the incident. The evidence indicated the accused and victim were associates in the drug trade who had a falling out prior to the shooting. The accused testified that he shot the victim in self-defence due to a prior incident in which the victim held a gun to his neck. Alternatively, he advanced a defence of provocation. The accused was convicted of second degree murder and sentenced to life imprisonment without eligibility for parole for 17 years. The accused appealed the conviction and sentence.

HELD: Appeal dismissed. The trial judge did not err in leaving Jovanovski’s manslaughter plea and conviction with the jury after Jovanovski did not respond to a subpoena and could not be located to testify. The guilty plea and one-year conditional sentence provided an avenue of exploring Jovanovski’s credibility in a manner that was favourable to the defence. The trial judge gave a strong Vetrovec warning and clear instructions to the jury regarding the permissible and impermissible uses of the plea. The victim’s prior statements to his fiancée regarding his drug dispute with the accused were not improperly admitted into evidence, as they provided narrative and context, and were of possible relevance to the issues of self-defence and provocation. The fiancée’s reliability was a matter for the jury to consider on the basis of the adequate jury instructions regarding her testimony. The trial judge did not err in instructing the jury on the accused’s post-offence conduct, and the defences of self-defence and provocation to the exclusion of the accused’s intellectual limitations and particular psychological makeup. With respect to the sentence imposed, a 17-year period of parole ineligibility was not excessive given the accused’s record of continuing violence as a youth and adult. The accused was not deterred by prior incarcerations. The judge was entitled to view the offence as near first degree murder. The sentence imposed was entirely fit and entitled to considerable deference. Sentence: Life imprisonment; 17 years’ parole ineligibility.