R. v. Johnson (L.M.),

• Jurisdiction: Nova Scotia
• Judge: MacDonald, C.J.N.S., Roscoe and Hamilton, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Citation: (2005), 236 N.S.R.(2d) 219 (CA),2005 NSCA 117
• Date: 09 June 2005

R. v. Johnson (L.M.) (2005), 236 N.S.R.(2d) 219 (CA);

    749 A.P.R. 219

MLB headnote and full text

Temp. Cite: [2005] N.S.R.(2d) TBEd. AU.015

Lawrence Michael Johnson (appellant) v. Her Majesty the Queen (respondent)

(CAC 233676; 2005 NSCA 117)

Indexed As: R. v. Johnson (L.M.)

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Roscoe and Hamilton, JJ.A.

August 23, 2005.

Summary:

The accused was convicted by a judge and jury of robbery and carrying a weapon for a purpose dangerous to the public peace. Identity was the only issue at trial. The accused appealed.

The Nova Scotia Court of Appeal dismissed the appeal.

Criminal Law - Topic 1881

Offences against property - Doctrine of recent possession - Application of doctrine - The accused was convicted by a judge and jury of robbery - Identity was the only issue at trial - On appeal, the accused submitted, inter alia, that the trial judge erred in his handling of the recent possession inference - The Nova Scotia Court of Appeal reviewed the jury charge respecting recent possession and dismissed the appeal - The court rejected the accused's suggestion that the Crown had to prove that the items were stolen before the presumption could be put to the jury - The court stated that "The question for the trial judge was more basic. Before putting the matter to the jury, there need only be some evidence that would permit the jury to conclude that these were the stolen items." - See paragraphs 60 to 67.

Criminal Law - Topic 1884

Offences against property - Doctrine of recent possession - Jury charge - [See Criminal Law - Topic 1881].

Criminal Law - Topic 4361

Procedure - Charge or directions - Jury or judge alone - Directions regarding identification - The accused was convicted by a judge and jury of robbery - Identity was the only issue at trial - On appeal, the accused submitted, inter alia, that the trial judge failed to sufficiently highlight the problems with the complainant's identification evidence - The Nova Scotia Court of Appeal reviewed the discrepancies in the complainant's identification evidence and the jury charge - The court dismissed the appeal - See paragraphs 53 to 58.

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post-offence behaviour of accused - The complainant was robbed while walking on the street - The police picked up the accused nearby, shortly after the robbery - Identity was the only issue at trial - In charging the jury on the accused's post-offence conduct, the trial judge referred specifically to two actions, namely, removing his hat after the police passed and fleeing when approached by the police - The Nova Scotia Court of Appeal held that the trial judge did not err in his charge to the jury - He did not treat the removal of the hat "as post-offence conduct consistent with guilt" - Rather, this charge was designed to protect the accused in circumstances where the jury might otherwise be tempted to draw an unfair inference - The charge respecting the accused's flight (properly the subject of a post-offence conduct charge) was balanced - The trial judge noted that people sometimes flee for reasons other than guilt (i.e., "some other criminal act" or a general fear of the police) - See paragraphs 68 to 73.

Criminal Law - Topic 5416

Evidence and witnesses - Witnesses - Cross-examination of Crown witnesses - The accused was convicted by a judge and jury of robbery - Identity was the only issue at trial - The police evidence was that the complainant identified the accused from 12 individual and consecutively numbered photos (exhibit 1) while in the police vehicle at the scene - However, defence counsel had in her file a composite of a second and totally different line-up ("Cecchetto" line-up) - She insisted that she received the composite as part of the Crown's disclosure in this case - The police believed that she received it when she represented the accused in an earlier and unrelated case and that it accidentally made its way to her file in this matter - At trial, the complainant did not identify exhibit 1 as the photos that he viewed that evening, insisting that he selected the accused's photo from a "plastic covered book" of photos that he viewed at the police station - The Nova Scotia Court of Appeal held that the trial judge did not err by restricting cross-examination of the complainant on the Cecchetto line-up - See paragraphs 18 to 31.

Cases Noticed:

R. v. Lyttle (M.G.), [2004] 1 S.C.R. 193; 316 N.R. 52; 184 O.A.C. 1, refd to. [para. 18].

R. v. Hart (W.A.) (1999), 174 N.S.R.(2d) 165; 532 A.P.R. 165 (C.A.), leave to appeal refused (2000), 261 N.R. 391; 190 N.S.R.(2d) 198; 594 A.P.R. 198 (S.C.C.), refd to. [para. 19].

R. v. Dixon (S.), [1998] 1 S.C.R. 244; 222 N.R. 243; 166 N.S.R.(2d) 241; 498 A.P.R. 241, refd to. [para. 32].

R. v. Burke (H.P.), [2002] 2 S.C.R. 857; 290 N.R. 71; 160 O.A.C. 271, refd to. [para. 34].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161, refd to. [para. 35].

R. v. Eisenhauer (D.M.) (1998), 165 N.S.R.(2d) 81; 495 A.P.R. 81 (C.A.), refd to. [para. 42].

R. v. Lifchus (W.) (1997), 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218 (S.C.C.), refd to. [para. 51].

R. v. Kowlyk (1988), 86 N.R. 195; 55 Man.R.(2d) 1; 43 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 60].

R. v. Newton (1976), 8 N.R. 431; 28 C.C.C.(2d) 286 (S.C.C.), consd. [para. 66].

R. v. White (R.G.) and Côté (Y.) (1998), 227 N.R. 326; 112 O.A.C. 1 (S.C.C.), refd to. [para. 68].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 76].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161, refd to. [para. 76].

R. v. Bourassa (P.T.) (2004), 227 N.S.R.(2d) 173; 720 A.P.R. 173 (C.A.), refd to. [para. 77].

R. v. Tat - see R. v. T.T. and S.L.

R. v. T.T. and S.L. (1997), 103 O.A.C. 15; 117 C.C.C.(3d) 481; 35 O.R.(3d) 641 (C.A.), refd to. [para. 78].

Counsel:

Jean Morris, for the appellant;

Daniel A. MacRury, for the respondent.

This appeal was heard on June 9, 2005, by MacDonald, C.J.N.S., Roscoe and Hamilton, JJ.A., of the Nova Scotia Court of Appeal. MacDonald, C.J.N.S., delivered the following decision for the court on August 23, 2005.