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APPEALS - Miscarriage of justice - Powers of appellate court

Monday, January 07, 2019 @ 7:36 AM  

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Appeal by the accused by way of reference from a conviction for first degree murder. In 1987, following a jury trial, the accused was convicted of first degree murder in connection with the shooting death of the victim. The Crown alleged that the accused provided the handgun and arranged for others to kill the victim due to his belief the victim provided information to the police leading to his arrest for drug trafficking. The accused acknowledged his role as a high-level cocaine dealer but denied all involvement in the murder. It subsequently surfaced that the Crown failed to disclose that a material witness received consideration for his testimony and failed to disclose police notes and reports of a meeting with that witness that might have discredited the witness’s testimony at trial. The Crown agreed that non-disclosure of evidence violated the accused’s right to make full answer and defence, leading to a miscarriage of justice. The Crown agreed that the conviction should be set aside and that the passage of time, the unavailability of witnesses, the deterioration of the evidence, and the time served by the accused precluded a new trial. The sole issue was whether the appropriate remedy was, as argued by the Crown, an order for a new of trial with a judicial stay of those proceedings, or, as argued by the defence, the entry of an acquittal.

HELD: Appeal allowed. The evidence amply supported a finding that important evidence was not disclosed to the accused and that the non-disclosure violated his right to make full answer and defence, resulting in a miscarriage of justice. It was reasonably possible a jury would find that the Crown’s material witness had no knowledge of a deal his counsel had struck prior to his testimony. It was not clear whether the jury would have accepted the police testimony regarding the details of the call with the material witness, but a significant amount of other evidence supported the details provided by that witness. Based on all of the information now available, there was evidence upon which a properly instructed jury could reasonably find the accused guilty. Moreover, it was not clearly more probable than not that the accused would be acquitted at a hypothetical new trial. The conviction was set aside, and a new trial was ordered. Given the length of time that passed since the events at issue, including the trial, and the significant amount of time that the accused had already spent in custody, a judicial stay of proceedings regarding the new trial was ordered.

R. v. Ostrowski, [2018] M.J. No. 306, Manitoba Court of Appeal, H.C. Beard, W.J. Burnett and J.A. Pfuetzner JJ.A., November 27, 2018. Digest No. TLD-January72019002