R. v. Henderson (H.A.), (2012) 317 N.S.R.(2d) 164 (CA)

• Judge: Saunders, Hamilton and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: May 08, 2012
• Jurisdiction: Nova Scotia
• Citations: (2012), 317 N.S.R.(2d) 164 (CA);2012 NSCA 53

R. v. Henderson (H.A.) (2012), 317 N.S.R.(2d) 164 (CA);

    1003 A.P.R. 164

MLB headnote and full text

Temp. Cite: [2012] N.S.R.(2d) TBEd. MY.061

Houstan Alexander Henderson (appellant) v. Her Majesty the Queen (respondent)

(CAC 357719; 2012 NSCA 53)

Indexed As: R. v. Henderson (H.A.)

Nova Scotia Court of Appeal

Saunders, Hamilton and Fichaud, JJ.A.

May 16, 2012.

Summary:

Henderson was convicted of break, enter and theft contrary to s. 348(1)(b) of the Criminal Code, and breach of recognizance contrary to s. 145(3) of the Code. He was sentenced to four years' imprisonment and ordered to make restitution in the amount of $1,634.15. Henderson appealed his conviction, but not his sentence. He also sought leave to introduce fresh evidence on appeal.

The Nova Scotia Court of Appeal denied leave to admit fresh evidence and dismissed the appeal.

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by evidence - [See Criminal Law - Topic 4970 ].

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - The accused was convicted of break, enter and theft (Criminal Code, s. 348(1)(b)) - The only issue at trial was identity - The Crown's case was entirely circumstantial - The accused based his appeal from conviction on two grounds: (1) that the verdict was unreasonable; and (2) that the court admit the "fresh evidence" of the report prepared by a forensic chemist employed by the R.C.M.P. - The report concerned the analysis of glass fragments discovered on the accused's clothing and footwear seized by the police weeks after the burglary - The accused argued that the report was capable of raising a reasonable doubt because the glass fragments did not match the glass from the broken window at the scene of the burglary - The Nova Scotia Court of Appeal denied leave to admit the report, and dismissed the appeal - The report was available at trial, and was of a trifling nature - The verdict was reasonable and fully supported by the evidence - The trial judge did not draw the inference of guilt based solely on the accused's alleged possession of the stolen cashbox - Nor did the trial judge assess the DNA evidence in isolation, or give it undue prominence - Given the strength of the circumstantial evidence, the Crown's case "cried out for an explanation" - The accused did not testify at his trial, and he did not call evidence, "[a]nd that is something we are entitled to take into account when considering the reasonableness of the verdict".

Cases Noticed:

R. v. C.J. (2011), 307 N.S.R.(2d) 200; 975 A.P.R. 200; 2011 NSCA 77, refd to. [para. 17].

R. v. Shea (S.M.) et al. (2011), 309 N.S.R.(2d) 349, 979 A.P.R. 349; 2011 NSCA 107, refd to. [para. 18].

R. v. Palmer (1980), 30 N.R. 181; 1979 CanLII 8 (S.C.C.), appld. [para. 20].

R. v. Angelillo (G.) (2006), 355 N.R. 226; 2006 SCC 55, refd to. [para. 20].

R. v. West (W.F.) (2010), 288 N.S.R.(2d) 293; 914 A.P.R. 293; 2010 NSCA 16, refd to. [para. 20].

R. v. Fraser (A.) (2011), 306 N.S.R.(2d) 201; 968 A.P.R. 201; 2011 NSCA 70, refd to. [para. 20].

R. v. Hoben, 2009 NSCA 27, refd to. [para. 32].

R. v. O'Brien (M.D.) (2010), 293 N.S.R.(2d) 78; 928 A.P.R. 78; 2010 NSCA 61, affd. (2011), 417 N.R. 52; 304 N.S.R.(2d) 383; 960 A.P.R. 383; 2011 SCC 29, refd to. [para. 32].

R. v. Biniaris (J.) (2000), 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, appld. [para. 35].

R. v. Barrett (J.R.) (2004), 222 N.S.R.(2d) 182; 701 A.P.R. 182; 2004 NSCA 38, appld. [para. 35].

R. v. Griffin (J.) et al. (2009), 388 N.R. 334; 2009 SCC 28, refd to. [para. 36].

R. v. Ward (S.C.) (2011), 307 N.S.R.(2d) 216; 975 A.P.R. 216; 2011 NSCA 78, refd to. [para. 38].

R. v. Eastgaard (H.J.) (2011), 510 A.R. 117; 527 W.A.C. 117; 2011 ABCA 152, affd. (2012), 428 N.R. 200; 2012 SCC 11, refd to. [para. 40].

Counsel:

Appellant, in person;

Kenneth W.F. Fiske, Q.C., for the respondent.

This conviction appeal was heard in Halifax, N.S., on May 8, 2012, before Saunders, Hamilton and Fichaud, JJ.A., of the Nova Scotia Court of Appeal. In reasons written by Saunders, J.A., the Court delivered the following judgment, dated May 16, 2012.