Between
Her Majesty The Queen, Respondent, and
John Lewis Amaral, Appellant
[1990] O.J. No. 1762
Action No. 283/89
Ontario Court of Appeal
Toronto, Ontario
Galligan, Osborne and Doherty JJ.A.
Heard: October 1, 1990
Judgment: October 3, 1990
Criminal law - Appeals - Setting aside verdicts - Grounds of appeal - Sufficiency of evidence - Evidence and witnesses - Identification.
Appeal by the accused from conviction and sentence.
HELD: Appeal allowed. Conviction quashed and acquittal entered. While the victim's credibility was not in question, the quality of his identification of the appellant was not sufficient to support the Crown's case.
Lorne Sabsay, for the Appellant.
David Butt, for the Respondent.
The following judgment was delivered orally by
THE COURT (endorsement):- Section 6861(a) of the Criminal Code requires that we review the reasonableness of the conviction. The scope of our review is controlled by Yebes v. The Queen (1973), 36 C.C.C. (3d) 417 at 430 (S.C.C.). This is a case where the conviction depends entirely on the identification by the victim. The victim's truthfulness was never an issue, however it was argued that in the totality of the circumstances the victim's identification was not sufficiently reliable to carry the burden of the Crown's case.
The victim and the appellant were strangers. The attack occurred at night and while there was some lighting it was less than optimum. The victim was with his assailant for some 3 or 4 minutes prior to the attack. There was no attempt at any pre-trial identification. The only identification made was a "dock" identification made during the trial some 18 months after the event. There were no circumstances which linked the appellant to the crime on the scene of the crime. The victim's initial description to the police of his assailant was a very general one and the little assistance in differentiating the appellant from the large part of the male population.
In the totality of these circumstances and although the accused did not testify we are satisfied that the verdict is unreasonable and must be quashed.
The conviction will be quashed and an acquittal will be entered. We need not address the other grounds of appeal on the appeal against sentence.
GALLIGAN J.A.
OSBORNE J.A.
DOHERTY J.A.
/DRS/DRS
