J. THE COURT OF APPEAL FOR SASKATCHEWAN PAUL FLENGERIS AND DAVID BURKE CORAM: The Honourable Chief Justice Bayda The Honourable Madam Justice Gerwing The Honourable Madam Justice Jackson COUNSEL: D. Rayner for the Crown B. Banilevic for the appellant, Paul Flengeris David Burke on his own behalf DISPOSITION: Appeal Heard: October 1994 Appeal Dismissed: 3 October 1994 (orally) Written Reasons: October 1994 Appeal Files: 6289 6290 Appeal From: Provincial Court Reasons by: The Honourable Chief Justice Bayda In concurrence: The Honourable Madam Justice Gerwing and The Honourable Madam Justice Jackson BAYDA C.J.S.: The ultimate question in this appeal is whether theevidence adduced by the Crown - the defence called noevidence - was insufficient to such a degree that the trialjudge\'s verdict of guilty ought to be found by this Courteither unreasonable or one that cannot be supported by theevidence and, on the basis of the Yebes v. The Queen(1987), 1987 CanLII 17 (SCC), 36 C.C.C. (3d) 417 (S.C.C.) and pursuant to s.686(1)(a)(i) of the Criminal Code, ought to be set aside. The appellants alleged two insufficiencies in the evidence: (i)"The absence of any expert evidence that the injuries sustained by Musam Musleh [the victim-complainant] resulted from any blows such as kicks or punches and as such were the result of an assault." In short, they contended that the Crown failed to prove that an offence of assault, or indeed an offence of any kind, had been committed. (ii)"The absence of any evidence that the Appellant[s] delivered any blows to [the victim]". In short, they contended that the Crown failed to discharge the burden of proving identity. As well, the appellants alleged an error of law by "convicting on circumstantial evidence, when other reasonable explanations existed". In our respectful view the appellants failed on all three of those submissions. As to the need for expert evidence to pinpoint thecause of the injuries suffered by the victim, the questionis readily resolved by examining the circumstancesimmediately preceding the infliction of the injuries, bythe description of the injuries given by the victim, (who,although he did not remember how the injuries wereinflicted, had a very good recollection of their nature) bylooking at the photographs of the victim taken thefollowing day, by the opinions of both the counterman atthe 7-Eleven store who saw the victim shortly after theinjuries were inflicted and called the police, and of theinvestigating officer who saw the victim shortly afterthat. The officer testified: It was very evident and plain to see that Mr. Musleh had been severely beaten about the face. The extent of his injuries were actually quite unbelievable. I've been an officer for 18 years, and with 18 years police experience, and I've been to lot of injuries, assaults, and beatings of that nature, and this is one of the worst beatings that I've even [sic] seen, or attacks on an individual, specifically to his face. In view of all of this evidence, there was sufficient evidence for the trial judge to reach conclusion respecting the cause of the injuries beyond reasonable doubt without resorting to medical opinion. On the question of identity, it is true that there was no direct evidence to implicate the appellants. There was, however, strong circumstantial evidence. It is fair to infer that the victim received his injuries at the spot where the pool of blood was found at the southeast corner of the Enjoy Gardens building and next to the 7-Eleven store where the victim went for help after he suffered the injuries. Shortly before the victim went into the 7-Eleven store, three persons saw the victim and the appellants at the spot where the pool of blood was found: Mr. Iluk, the victim's casual acquaintance, and the two doormen at the Checkerdome bar who earlier had escorted the two appellants and the victim out of the bar. In addition to that compelling inculpatory evidence of opportunity, there was the evidence of motive. One of the appellants took umbrage at the victim's having had sexual relations or at least boasting of having had relations with the former's younger sister. The resulting hostility on the part of both appellants manifested itself in the bar at the Checkerdome which precipitated the decision by the doormen to escort the appellants and the victim out of the bar onto the parking lot. The threesome then shortly after were seen to gravitate to the spot where the pool of blood was found. The law in this regard is settled. In Yebes, McIntyre J., after referring to Ferianz, [1962] O.W.N. 40 (Ont. C.A.) and also to R. v. MacFarlane (1981), 61 C.C.C. (2d) 458 (Ont. C.A.) said at p. 432: It may then be concluded that where it is shown that crime has been committed and the incriminating evidence against the accused is primarily evidence of opportunity, the guilt of the accused is not the only rational inference which can be drawn unless the accused had exclusive opportunity. In case, however, where evidence of opportunity is accompanied by other inculpatory evidence, something less than exclusive opportunity may suffice. This was the view expressed by Lacourciï¿½re J.A. in R. v. Monteleone (1982), 1982 CanLII 2162 (ON CA), 67 C.C.C. (2d) 489 at p. 493, 137 D.L.R. (3d) 243 at p. 247, 1982 CanLII 2162 (ON CA), 38 O.R. (2d) 651 (Ont. C.A.), where he said: `It is not mandatory for the prosecution to prove that the respondent had the exclusive opportunity in case where other inculpatory circumstances are proved.' It is also supported by further comments of Martin J.A. in R. v. Stevens (1984), 1984 CanLII 3481 (ON CA), 11 C.C.C. (3d) 518 at p. 534 et seq., and see, as well, Imrich v. The Queen (1977), 34 C.C.C. (2d) 143 at p. 147, 1977 CanLII 27 (SCC), 75 D.L.R. (3d) 243 at pp. 247-8, [1978] S.C.R. 622 at p. 627, per Ritchie J. Here the appellants may or may not have had an exclusive opportunity. If they did not, then the "other inculpatory evidence" of motive and hostility, puts the present case into the category of one where "something less than exclusive opportunity may suffice". In either case thecircumstantial evidence of opportunity is sufficient tosustain a finding of identity beyond a reasonable doubt. As for other reasonable inferences to be drawn from the evidence, in our respectful view the trial judge was correct to find that the evidence does not yield up any such other reasonable inferences. Through the cross- examination of one of the Crown witnesses (the counterman at the 7-Eleven), there was an attempt to formulate an explanation for the unexplained injuries by injecting the notion of an unidentified third person having committed the assault. The testimony in that respect was highly tentative and unsatisfactory. At best it was speculative and cannot form an evidentiary base for reasonable inference. To the foregoing may be added the fact that the appellants both failed to testify. This fact may be taken into account by Court of Appeal when dealing with the question: "Is this reasonable verdict?" (Corbett v. R., 1973 CanLII 199 (SCC), [1975] S.C.R. 275 at 280 and VTzeau v. The Queen, [1977] S.C.R. 277 at 288.) The procedural point raised by the appellants (the calling by the appellants to present argument first when there was no evidence called by them) has no merit. They rely on s. 651(3) of the Code which provides: 651(3) Where no witnesses are examined for an accused, he or his counsel is entitled to address the jury last, but otherwise counsel for the prosecution is entitled to address the jury last. The wording of the provision is clear. It deals with counsel's entitlement to address jury, not with counsel's entitlement to present argument to judge sitting without jury. The statutory entitlement to address jury last may indeed be substantive right of defence, as observed by Dubin J.A. in R. v. Hawke (1975), 1975 CanLII 672 (ON CA), 22 C.C.C. (2d) 19. The traditional entitlement to present argument to a judgesitting without a jury last, however, is a proceduralentitlement to which the curative provision contained in s.686(1)(b)(iv) applies. We would be prepared to invoke thatcurative provision in this instance. In summary, we find that the verdict is not unreasonable, that it can be supported by the evidence, and that the judge made no error of law. In the result theappeal is dismissed.
At trial in Provincial Court, the accuseds called no evidence and were convicted. They appealed on the basis that the Crown's evidence was so insufficient that a verdict of guilty was unreasonable or was one which could not reasonably be supported on the evidence. HELD: Appeal dismissed. 1)No medical evidence was necessary to establish that the victim's injuries were caused by an assault, given the photographs admitted into evidence, the evidence of the police officer who was called to the scene of the assault and the evidence of the 7-11 clerk who was first approached by the victim for assistance. 2)Evidence of exclusive opportunity was unnecessary to sustain a conviction where there was other circumstantial evidence pointing to the identity of the accuseds. 3)Although a failure to permit an accused who calls no evidence to argue last in a jury trial might be a good ground of appeal, the failure to be permitted to argue last before a judge alone was merely a procedural error which could be cured under the curative provision contained in S.686(1)(b)(iv) of the Criminal Code.