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EVIDENCE - Methods of proof - Circumstantial evidence

Thursday, December 01, 2016 @ 7:00 PM  


Appeal by the accused from convictions for theft under $5,000 and possession of property obtained by crime. A vehicle was stolen in the early morning hours. Around the same time and in the same vicinity there was an attempted break and enter of a jewelry store and a robbery of a large quantity of drugs from a pharmacy. A few days later, the vehicle was found abandoned in a parking lot and a balaclava was found in the car. Investigation led the police to the accused’s apartment where they discovered drugs. DNA from the balaclava showed a mixture of DNA from three individuals, one of which matched the accused. The accused was charged with various offences. To establish that the accused participated in the theft of the vehicle, the Crown relied on the DNA evidence and the fact that the attempted robbery and robbery took place nearby. The trial judge convicted the accused of the two charges relating to the theft of the vehicle, but acquitted the accused of all other counts. The accused appealed, arguing that the verdict was unreasonable or could not be supported by the evidence.

HELD: Appeal allowed. The conviction was quashed and an acquittal was entered. The evidence did not support the verdict. The evidence linking the accused to the crime was entirely circumstantial. Based on the limited nature of the evidence presented at trial, the inference that the accused was in contact with the balaclava in the course of the theft of the car was not reasonable. There was no evidence that made that inference more likely than the inference that the accused was in contact with the balaclava at some other time. Evidence of the accused’s DNA on the balaclava only demonstrated that he likely wore it at some point in time and fell short of connecting him to the left of the vehicle. The proximity of the three crime scenes was not relevant, as the trial judge was not satisfied that the evidence supported a finding that the accused was connected with the attempted robbery and robbery.