C.A.C. No. 109636
NOVA SCOTIA COURT OF APPEAL
Roscoe, Pugsley and Bateman, JJ.A.
Cite as: R. v. Jesty, 1995 NSCA 146
BETWEEN:
ALBERT STANLEY JESTY ) The Appellant appeared
) in person
Appellant )
)
)
- and - )
)
) Robert Lutes, Q.C.
) for the Respondent
)
HER MAJESTY THE QUEEN )
)
Respondent )
)
) Appeal Heard:
) May 26 and June 28,1995
)
) Judgment Delivered:
) July 21, 1995
)
)
)
THE COURT: The appeal is allowed and a new trial directed, per reasons of Pugsley, J.A., Roscoe and Bateman, JJ.A. concurring.
Pugsley, J.A.:
Albert Jesty appeals from his conviction on August 11, 1994, by the Chief Justice of the Supreme Court, sitting without a jury, for stealing a wallet, cheque and money, of a value exceeding one thousand dollars, the property of the Sydney Mines Police Department.
The Notice of Appeal, prepared by Mr. Jesty, enumerated four grounds of appeal from his conviction, and sought leave to appeal his sentence of ten months' incarceration.
The appeal was argued by Mr. Jesty in person.
At the outset, he made a motion to introduce new evidence on the ground that he was not able to make full answer and defence at trial because his trial counsel failed to adduce relevant evidence respecting the handling of exhibits by the members of the Sydney Mines Police Department.
After hearing representations by Mr. Jesty, and on behalf of the Crown, the Court, after due consideration, dismissed the application.
The Court reserved its decision on the grounds raised in the Notice of Appeal, and advised the parties that the decision would be delivered on June 30th.
On June 19th, before the filing of the Court's decision, the Crown directed a letter to the panel which reads in part:
I wish to advise the panel that on today's date S/Sgt. Tom Doyle of the RCMP Sydney Detachment has advised me that charges have now been laid against Chief Walter Stewart, Chief of the Sydney Mines Police Department, for offences contrary to ss. 137 and 139 of the Criminal Code.
These charges relate to the manner in which exhibits were handled by Chief Stewart. The charges are, however, unrelated to the exhibit which is the subject of this appeal.
These charges relate to one of the allegations made by the appellant, Albert Stanley Jesty, of misconduct on the part of Chief Stewart, and are based on information from another officer of the Sydney Mines Police Department.
The importance of this information is that the question must be asked whether Chief Justice Glube would have taken a different view of the credibility of Chief Walter Stewart and the appellant at the time of the trial if this information had been before her. Chief Stewart is, of course, presumed innocent, but the charges still raise an important question.
...
It is the position of the Crown that justice will not be seen to be done unless this new information is received, reviewed and a decision made on whether or not it should be admitted as "fresh evidence" on this appeal.
The panel met in response to that letter and on June 21st directed the Registrar to write to Crown counsel and to Mr. Jesty in part as follows:
In respect of the charges laid against Chief Stewart, the panel advises that if either party to the appeal wishes to make an application for the introduction of new evidence, the panel will be prepared to hear the application on Wednesday, June 28th, 1995, at 10:00 a.m.
Mr. Jesty advised the Registrar that he wished to make an application for the introduction of new evidence and that matter was accordingly heard on Wednesday, June 28th.
After hearing representations from Mr. Jesty and on behalf of the Crown, the panel, after due consideration, allowed the application to introduce fresh evidence, allowed the appeal, and directed a new trial, with reasons to follow.
Background
While driving to work at 6:30 a.m. on the morning of August 28, 1993, Warren Cousins noticed a wallet on the side of the road. He stopped to examine it. There was no identification, but the contents contained an undated cheque drawn on the Royal Bank of Canada for $2,000.00, payable to Stephen Tamara, signed only by the initial "K" and $1,130.00 in cash made up essentially of 50's and 100's.
The Sydney Mines Police Department was immediately notified by phone and Albert Jesty (then 32 years of age and a part-time constable on the force) was assigned to meet with Mr. Cousins when he came to the station around noon that day.
Chief Walter Stewart of the department testified that:
- Prior to Mr. Cousins' arrival, Mr. Jesty advised him that "the money ... might be involved in some drug - or might be some dirty money, whatever. I advised him to talk to Mr. Cousins, and tell him to keep it quiet, take the money, put it in a safe place," - Mr. Jesty would at once commence an undercover drug operation to try to determine the source of the money;
Mr. Cousins received a receipt from Cst. Jesty respecting the delivery of the wallet and contents. The receipt was unusual in at least two respects:
1. It was signed only by Mr. Cousins. Mr. Jesty's name does not appear on the receipt;
2. The carbon copy of the receipt, later found in the police receipt book, is blank, except for the first three letters of the month (i.e. "Aug");
Chief Stewart testified that:
- By advising Mr. Jesty to put the money in a safe place, Chief Stewart assumed Mr. Jesty would follow the usual practice of recording the denomination and serial numbers of the currency, mark each bill for "continuity purposes", put the information in an exhibit log, fill out an exhibit form in triplicate, deliver one copy to the exhibit officer, and lock the wallet and contents in the exhibit room at the detachment, or alternatively lock them in his personal locker;
- He expected Mr. Jesty to sign, and deliver a receipt for the wallet and contents to Mr. Cousins.
On or about August 31st, Mr. Jesty negotiated a lease agreement for a new car requiring $1,000.00 down and monthly payments of $520.00. The car salesman testified that he discussed Mr. Jesty's financial status with him because "his situation was below the standards that would be acceptable by commercial banks or credit companies". Mr. Jesty made the $1,000.00 down payment in cash.
September 1st, 1993, Mr. Jesty was hired on a full-time basis at the department and his pay was increased to $17.20 an hour.
Chief Stewart further testified that:
- On October 6th, 1993, he received a letter from Ms. LeBlanc of Community Services for Sydney Mines, advising that Mr. Jesty had applied for financial assistance on January 13th, 1993, pending receipt of his unemployment insurance cheque. Based upon Mr. Jesty's representation that the family income was limited to his wife's pension of $620.00 for that month, Community Services paid $503.00 to Mr. Jesty. Ms. LeBlanc subsequently checked with the Town Hall, who verified that Mr. Jesty had received wages of $440.00 and $120.00 respectively in the first two weeks of January;
- After consultation with the town solicitor, Chief Stewart suspended Mr. Jesty on October 7th and demanded that Mr. Jesty turn over his revolver, badges, keys, etc., as well as "all monetary exhibits" in his possession;
- All items requested, except the "monetary exhibits" were immediately turned over;
- When confronted a short time later regarding his failure to turn over the money in the wallet, Mr. Jesty advised that he was "short $200.00 to $250.00".
Inspector Lamond, a member of the department, testified that:
- On the Chief's instructions, he accompanied Mr. Jesty to the latter's house to retrieve the wallet which, upon examination, contained a cheque for $2,000.00, but only $130.00 in cash;
- Approximately a half-hour later, Mr. Jesty walked into his office at the station and "threw a pile of money on the desk...(exclaiming) Here is the rest of the money that was in the drawer at home."
David Lewis, brother-in-law of Mr. Jesty, and the owner and manager of Monty's Beverage Room, testified that:
- On the afternoon of October 7th, 1993, Mr. Jesty came to his office and advised "he needed some money...he was looking for some specific denominations... $1,100.00...he told me he needed it right away and he'd get back to me in a couple of weeks...so I had the money there on hand in the business, so I gave him the money there and then..."
Mr. Jesty testified that:
- His financial problems commenced in 1983 and shortly thereafter he declared personal bankruptcy. He acknowledged that he had continued to struggle financially;
- He did not follow any of the procedures respecting the handling of the wallet or the contents because Chief Stewart had instructed him "give him a receipt. Don't tell anybody about it. Don't write anything down about it. And you take care of it....Ask (Mr. Cousins) if he told anybody else about it and if he did, can he keep it quiet until at least you and I get back in touch with him...";
- When meeting with Mr. Cousins, in accordance with the Chief's instructions, he had the following conversation with Mr. Cousins:
Jesty: I'll get back in touch with you.
Cousins: Well, how long is that going to be?
Jesty: Well, give me time to look into it, a little bit or whatever, more than likely, you'll end up getting it back anyway...
- He forgot to sign the receipt;
- He accepted the Chief's instructions that he didn't want the membership within the office to know about the money;
- He finished his shift work on August 28th at 7:00 p.m. and while emptying his pockets at home he found the wallet, which he placed in his top dresser drawer, a place where he had located exhibits on previous investigations;
- On October 4th in response to the Chief's question as to what he had on his plate, Mr. Jesty related a number of investigations he was conducting and "I told him I still had the money and the cheque and the wallet and that. I still had it in my possession at home.";
- On October 7th, on returning home after being suspended, he asked his wife to get the wallet from his dresser drawer. She advised she spent some of the money. She subsequently advised him that she had spent the majority of it.
Mrs. Jesty testified:
- She discovered the wallet in her husband's top dresser drawer about September 4th. She removed approximately $1,000.00 from the wallet over the next several weeks, as she was annoyed with Mr. Jesty, for using his two pay cheques for a down payment on his car rather than using it to meet family expenses. She used approximately $700.00 of the money for children's clothes, payment of an insurance premium, part payment of a phone bill, and other necessaries;
- She acknowledged, in the course of cross-examination, that she gave the RCMP a statement on October 29th, 1993 that contained some untruths. By way of explanation she said "I had told them the story that Albert had told me to tell, the one we concocted together".
Decision of the Trial Judge
At the conclusion of the three day trial, the Chief Justice gave an oral judgment in which she concluded:
This is a case involving circumstantial evidence, and also one which comes substantially to a question of credibility. In dealing with the credibility of all the witnesses, I am obliged to determine, who I believe, in whole or in part, or not at all. And even though Mr. Jesty is the accused person in this, the same applies to him.
There were certainly a number of conflicts between the evidence of Mr. Jesty and others .... There, of course, are many other discrepancies as to what Chief Stewart said he knew about the money and the telephone calls and what Mr. Jesty said he told the Chief about the money and the telephone calls that had come earlier on August 28th. Mr. Jesty's evidence of what occurred August 28th differs in many details with that of Chief Stewart.
. . .
What do we know in this case? We know that Mr. Jesty took the wallet home that he received from Mr. Cousins, which contained $1,130.00 in cash and a cheque, and he put it into a drawer on August 28th. Next, we know that before doing that he did not put any notes about the evidence in his notebook. He did not mark down on any exhibit form, or any other piece of paper, the denominations of the bills, the serial numbers, the time and date he received them, and whom he received them from.
. . .
We had a very succinct and excellent summation on behalf of the defence and counsel says that I should accept the evidence of Mr. and Mrs. Jesty, that what Mr. Jesty did in bringing to the Chief's attention Mr. Cousins' telephone call, his meeting with Mr. Cousins, all shows that he had no intention to commit the offence at that time; that he did give Mr. Cousins a receipt, he was in a hurry and forgot to sign it, but afterwards he discussed it with the Chief who saw the wallet at that time ... a week before his suspension he talked to the Chief about the wallet and he told the Chief he was going to have a meeting with another police officer.
. . .
I find that the way in which Mr. Jesty dealt with the wallet and the money he received from Mr. Cousins is totally incomprehensible. I do not accept his evidence of the Chief telling him not to put anything in writing.
...
After reviewing all of the evidence, I find that the evidence of Mr. and Mrs. Jesty on who knew the money was gone and how it was used is not believable nor credible. The Crown has met the burden of proof. I do not accept or believe the evidence I heard from Mr. Jesty or Mrs. Jesty and I am not left in any doubt by it.
I have examined all of the evidence and I am convinced, beyond a reasonable doubt, that Mr. Jesty is guilty as charged. Where I've been obliged to draw inferences, I find that the guilt of the accused is the only reasonable inference to be drawn from the proven facts. The coincidences that have been given as examples of using $200.00 by both of them when neither of them spoke to each other; the alleged failure of Mrs. Jesty to tell him how much she had taken; even more, the failure of Mr. Jesty to have asked, is just too much for the Court to believe.
In the course of coming to her conclusions, the Chief Justice referred to evidence given by Mr. Jesty concerning the seizure by him of contraband liquor which was kept at his home. The Chief Justice stated:
I do not accept that the example of liquor in 1992 kept at his home is at all the same as these facts have been presented in this case.
If he took the wallet home inadvertently, why didn't he take it back? I find that I am led conclusively to draw the inference that he intended to take it home and intended to use it. There's simply too much coincidence in this case to accept it, as other than deliberate.
Subsequent Events
After Mr. Jesty was sentenced in October of 1993 he requested and was granted an interview with the provincial Minister of Justice to whom he expressed complaints respecting, inter alia, the actions of Chief Stewart, and the manner in which exhibits were handled within the Sydney Mines Police Department. The Minister appointed Staff Sergeant Tom Doyle of the R.C.M.P. to carry out an investigation. The investigation had not been concluded when the second application for introduction of fresh evidence was heard on June 28, 1995.
Opinion
Section 683 of the Criminal Code of Canada R.S.C. 1985, Chapter C-46 provides as follows:
683 (1) for the purposes of an appeal under this Part, the court of appeal may, where it considers it in the interests of justice,
(b) order any witness who could have been a compellable witness at the trial, whether or not he was called at the trial,
(i) to attend and be examined before the court of appeal, or
(ii) to be examined in the manner provided by rules of court before a judge of the court of appeal, or before any officer of the court of appeal or justice of the peace or other person appointed by the court of appeal for the purpose;
(c) admit, as evidence, an examination that is taken under subparagraph (b)(ii);
(d) receive the evidence, if tendered, of any witness, including the appellant, who is a competent but not compellable witness.
The Supreme Court of Canada in Palmer and Palmer v. The Queen (1980), 50 C.C.C. (2d) 193 interpreted this section as follows at p. 204:
Parliament has given the Court of Appeal a broad discretion ...The overriding consideration must be in the words of the enactment "the interests of justice" and it would not serve the interests of justice to permit any witness by simply repudiating or changing his trial evidence to reopen trials at will to the general detriment of the administration of justice. Applications of this nature have been frequent and Courts of Appeal in various Provinces have pronounced upon them: see for example R. v. Stewart (1972), 8 C.C.C. (2d) 137 (B.C.C.A.); R. v. Foster (1978), 8 A.R. 1 (Alta. C.A.); R. v. McDonald, [1970] 3 C.C.C. 426, [1970] 2 O.R. 114, 9 C.R.N.S. 202 (Ont. C.A.); R. v. Demeter (1975), 25 C.C.C. (2d) 417, 10 O.R. (2d) 321 (Ont. C.A.) [affirmed 34 C.C.C. (2d) 137, 75 D.L.R. (3d) 251, [1978] 1 S.C.R. 538]. From these and other cases, many of which are referred to in the above authorities, the following principles have emerged:
(1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen, [1965] 1 C.C.C. 142, 46 D.L.R. (2d) 372, [1964] S.C.R. 484;
(2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
(3) the evidence must be credible in the sense that it is reasonably capable of belief, and
(4) it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
In considering these four principles in the light of the facts:
1. As the charges against Chief Stewart were not laid until June 16, 1995, evidence respecting them could not have been adduced at a trial which occurred in August of 1994;
2. The Chief Justice acknowledged in her decision that the case "comes substantially to a question of credibility".
Of all the witnesses who gave evidence opposed to that of Mr. Jesty, the greatest contrast is provided by Chief Stewart. A potentially decisive issue in the trial was the credibility of Chief Stewart. Fresh evidence respecting Chief Stewart's alleged fabrication of evidence, even though in another judicial proceeding, is certainly relevant to the issues in Mr. Jesty's trial.
3. The charges that have been laid against Chief Stewart are extremely serious as evidenced by the penalty set out in sections 137 and 139 of the Code.
Section 137 provides:
Every one who, with intent to mislead, fabricates anything with intent that it shall be used as evidence in a judicial proceeding, existing or proposed, by any means other than perjury or incitement to perjury is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
Section 139 provides for a penalty not exceeding ten years for those who wilfully attempt to obstruct, pervert or defeat the course of justice in a judicial proceeding.
While Chief Stewart is, of course, presumed innocent, the charges result from an independent investigation carried out by a member of the R.C.M.P., deserve serious consideration, and cannot be dismissed as purely fanciful.
4. The charges brought against Chief Stewart do not relate to the handling of exhibits by the department in August and September of 1993, but they do relate to the handling of exhibits by Chief Stewart in the previous year.
While it could be argued that the manner in which exhibits were handled by Chief Stewart is a collateral matter and does not affect the core issue of whether Mr. Jesty "fraudulently and without colour of right" stole the wallet, and used the cash in it for his own purposes, it is evident that the Chief Justice formed an adverse impression of Mr. Jesty because "he did not put any notes about the evidence in his notebook, he did not mark down on any exhibit form or any other piece of paper, the denomination of the bills, the serial numbers, the time and date he received them and whom he received them from".
Mr. Jesty's evidence at trial was that he was instructed not to carry out those steps because of instructions he received from Chief Stewart.
The Chief Justice found his explanation to be "totally incomprehensible". The initial impression she formed respecting events that occurred on August 28, 1993, presumably contributed to her later scepticism respecting the explanation advanced by Mr. and Mrs. Jesty concerning the handling of the money in the month of September.
This conclusion is borne out by the Chief Justice's comment:
I find that I am led conclusively to draw the inference that he intended to take it [ie. the wallet] home and intended to use it. [emphasis added]
The guidelines set down by the Supreme Court of Canada in Palmer and Palmer v. The Queen, supra, were considered by the same court in R. v. Stolar (1988), 40 C.C.C. (3d) 1.
McIntyre, J. on behalf of the court stated at p. 10:
Where, however, the fresh evidence does not possess that decisive character which would allow an immediate disposition of the appeal but, nevertheless, has sufficient weight or probative force that if accepted by the trier of fact, when considered with the other evidence in the case, it might have altered the result at trial, the Court of Appeal should admit the proffered evidence and direct a new trial where the evidence could be heard and the issues determined by the trier of fact. [emphasis added]
If the Chief Justice could have been informed that Chief Stewart was charged with violating sections 137 and 139 of the Code respecting the manner in which he handled exhibits shortly before the issues concerning Mr. Jesty, it might have altered the result at trial, or in the words of the fourth Palmer principle, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
In my opinion, the new evidence should be admitted and, as a consequence, following the guidelines set out in Stolar, supra, the appeal allowed and a new trial should be directed.
Pugsley, J.A.
Concurred in:
Roscoe, J.A.
Bateman, J.A.
C.A. No. 109636
NOVA SCOTIA COURT OF APPEAL
BETWEEN:
ALBERT STANLEY JESTY )
)
Appellant )
)
)
- and - ) REASONS FOR
) JUDGMENT BY:
)
) PUGSLEY, J.A.
HER MAJESTY THE QUEEN )
Respondent )
)
)
)
)