R. v. Pangan (R.) et al., (1996) 85 B.C.A.C. 54 (CA)

• Judge: Cumming, Finch and Ryan, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: December 18, 1996
• Jurisdiction: British Columbia
• Citations: (1996), 85 B.C.A.C. 54 (CA)

R. v. Pangan (R.) (1996), 85 B.C.A.C. 54 (CA);

    138 W.A.C. 54

MLB headnote and full text

Regina (respondent) v. Romeo (Junie) Pangan (appellant)

Regina (respondent) v. Abner (Mark) Cajigurian (appellant)

(CA20209; CA20323)

Indexed As: R. v. Pangan (R.) et al.

British Columbia Court of Appeal

Cumming, Finch and Ryan, JJ.A.

December 18, 1996.

Summary:

The accused Pangan was convicted by a jury of sexual assault. The accused Cajigur­ian was convicted by the jury of sexual assault and assault. The victims were teen­aged girls. Both the accused appealed from conviction.

The British Columbia Court of Appeal dismissed both appeals.

Criminal Law - Topic 4351

Procedure - Jury charge - Direction re­garding burden of proof and reasonable doubt - Charging the jury on reasonable doubt, the judge said "... you must decide whose evidence you will believe" - The British Columbia Court of Appeal held that this did not mislead the jury into believing they were required to choose between the witnesses - It was given to further explain the functions of the judge and jury, i.e., that credibility was an issue for the jury, not the judge - The passage should be read to emphasize the word "you", not "must" - Further, other impugned passages did not set up a "cred­ibility contest" between the complainants and the accused - The jury were not mis­directed on burden of proof, reasonable doubt and credibility - See paragraphs 35 to 42.

Criminal Law - Topic 4365

Procedure - Jury charge - Directions regarding expert evidence - The two female complainants in a sexual assault trial testified that they currently suffered from a psychiatric illness - A defence psychiatrist, who had not examined the complainants or heard their testimony, testified respecting this disorder - The British Columbia Court of Appeal held that the trial judge's jury charge did not advise the jury to ignore the psychiatrist's evidence and to judge the complainants' credibility without regard to what he said - The court held that the charge correctly served to caution the jury that there might be a reason to carefully examine the com­plainants' testimony, but at the same time noted that without a better foundation the psychiatric evidence was of limited value - See paragraphs 20 to 28.

Criminal Law - Topic 4392

Procedure - Jury charge - Directions re inferences of guilt - The teenaged com­plainant in a sexual assault trial testified that the accused threatened her family if she disclosed the alleged crime - The British Columbia Court of Appeal held that in the jury charge on consciousness of guilt, the trial judge ought to have instructed the jury that the evidence had no probative value with regard to any particu­lar offence, i.e., he ought to have with­drawn it from the jury's consideration - The court applied s. 686(1)(b)(iii) of the Criminal Code to cure the error, since there was no reasonable possibility that the error would have affected the verdict - See paragraphs 50 to 55.

Criminal Law - Topic 4399.9

Procedure - Jury charge - Directions re flight and other post-offence behaviour of accused - [See Criminal Law - Topic 4392 ].

Criminal Law - Topic 5406

Evidence - Witnesses - Credibility - Physical and mental condition - The two female complainants in a sexual assault trial testified that they suffered from a psychiatric illness at the time of trial - The trial judge refused to allow the accused to lead expert evidence from a psychiatrist on the credibility of persons diagnosed with this disorder - The psy­chiatrist had not examined the complain­ants or been present for their testimony - The British Columbia Court of Appeal held that the opinion of the psychiatrist was inadmissible - This opinion would only serve to usurp the function of the jury - See paragraphs 6 to 18.

Evidence - Topic 7157

Opinion evidence - Prohibited opinions - Re credibility of witnesses - [See Crimi­nal Law - Topic 5406 ].

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 31].

R. v. W.(D.) - see R. v. D.W.

R. v. C.W.H. (1991), 3 B.C.A.C. 205; 7 B.C.A.C. 205 (C.A.), refd to. [para. 31].

R. v. Buick (1991), 1 B.C.A.C. 30; 1 W.A.C. 30 (C.A.), refd to. [para. 60].

Counsel:

G.P. DelBigio, for the appellant, Pangan;

D.M. Foster, for the appellant, Cajigurian;

K.J. Gillett, for the respondent.

These appeals were heard on May 23 and 24, 1996, at Vancouver, British Columbia, by Cumming, Finch and Ryan, JJ.A., of the British Columbia Court of Appeal. The fol­lowing decision of the court was delivered by Ryan, J.A., on December 18, 1996.