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Appeals - Grounds - Miscarriage of justice

Thursday, November 10, 2016 @ 7:00 PM  


Appeal by Luk from convictions for assault with a weapon and related weapons offences. The complainant was Luk’s live-in girlfriend who claimed that she was assaulted by Luk with a knife and a gun over a two-day period in October 2014. The police arrested Luk at the home he shared with the complainant on October 2. He was placed in custody while the police obtained and executed a search warrant for the home, where they discovered a handgun under the duvet in the only bedroom. Other guns and imitation guns were also found in the apartment, along with ammunition. The home was not secured between the time of Luk’s arrest at 3:14 p.m. and 6:45 p.m. The only defence witness was Motevalli, who claimed he was a firearms enthusiast who had lived with Luk in the past. He testified that he and a friend of Luk’s, Jay, were present in the home when Luk was arrested. Motevalli was in the bathroom and did not see the police arrest Luk. He claimed Jay seemed nervous when Motevalli came out of the bathroom, after which Jay took a handgun from his hoodie, went to the bedroom, and appeared less nervous when he came out of the bedroom. The inference the defence sought to make from the evidence was that Jay left the handgun under the duvet, and that it did not belong to Luk. Motevalli was cross-examined about whether or not he spoke to Luk after the offence. There was some confusion about whether Motevalli spoke to Luk to get contact information for Luk’s lawyer, or whether he obtained the contact information from another friend, Mark. Motevalli was removed from the courtroom while counsel sought to determine how to clarify his answer. When he returned, the Crown asked if he had obtained the number from Luk or from Mark, and cut Motevalli off when he tried to clarify his response from earlier. The judge found the matter of speaking to Luk or Mark a major internal inconsistency in Motevalli’s evidence that undermined his credibility. The judge rejected Motevalli’s testimony and convicted Luk on all counts.

HELD: Appeal allowed and new trial ordered. The Crown prevented Motevalli from explaining what the judge later found to be a major internal inconsistency. Had Motevalli been permitted to explain his answers, there might not have been a major internal inconsistency in his evidence at all. The Crown’s restriction on his testimony prevented him from clarifying a point central to the entire case. The defence could not have known how important this point was prior to the judge providing reasons for rejecting Motevalli’s testimony, such that the lack of an objection to the Crown’s conduct was excusable. Preventing Motevalli from clarifying an inconsistency of pivotal importance gave rise to the appearance that Luk was denied a fair trial. The evidence against Luk was not so overwhelming that another verdict would have been impossible.