Court of Appeal

Cite as: R. v. Rehberg, 1973 NSCA 2 1972 s. He No o 01405 IN lHE SUPREt£ COURT OF NOVA SCOT I.A APPEAL DIVISION - CROWN SlOE BEMEN: HER MAJESTY THE QUEEN Respoooent - and - GEORGE DAVID REHBERG Appellant [ oral opinion 1 McKINNON, C.J.NoS.: The appellant was convicted by His Honour Po To J o 0 Hearn, a Judge of the County Court, District Number One, O~ December 15, 1972, for .that he at or near Halifax, in the County of Halifax, on 0,· about the 4th day of September, A. Do 1972, did unlawfully steal one fourteen ft. SunRay f iberglas.s boat, one forty horse­ power Johnson electric motor and one explorer boat tra i Ie,", the property of Birch Cove Sporting Goods ltd o , of a value exceeding two hundred doHars" contrary to Section 194 (a) of the Criminal Code of Canada. He was acquitted on a charge of posscssijo~ of these items. On Oecember 21, 1972, the appellant was sentenced to a term of two years' imprisonment in the federal penitentiary at Dorchester, New Brunsw5cko The facts are: On September 4, 1972, at about 10:30 Perno, Mr. Dennis lawrence 1

an employee of Birch Cove Sporting Goods Limited.., II'IIOticed that a boat, motor and trailer were missing from the front yard of the store where they had been parked two or three days previouslyo The goods were re­ ported to the police as stoleno On September 11, 1972, in the course of their investi ­ g~tion, Constables Macisaac arnd Langille of the Halifax City Police Department discovered the stolen boat, motor and trailer in the poss­ ession of Mro Wilfred Barry Conrad.., the proprnetor of a salvage busi­ ness in Cow Bay, Halifax Countyo These items were discovered parked behind Conrad's mobile home near the scrap yard~ Also in Conrad's possession were two bills of sale in the total amount of $400 Q OO, one for the motor and one for the boat, both of whnch were sogned with the name ''George Rehberg" o On the same day, September 11, the items were positively identified by Mro Mark Ritchie, the owner of Birch Cove Sporting Goods Limited, as being those discovered stolen on Septembefi- 4tho He later testified as to the total value of the items being approximately $1,3500000 At trial Conrad, the salvage yard operator, testified that on September 4, 1972, he purchased the boat and accessories for $400 0 000 The seller of the ~tems signed the name of George Rehberg to the bills of saleo When asked \~ether that person was in Court he ideft1ltified. the appellant and stated he was "pretty sural! that was the individual who sold him the baato He further stated that he had seen the appellant on five occasoons previously and knew his family and in particular his fathero He also testified that the appellant 2

had brothers, that he often referred to them by their wrong names and admitted in reference to the brothers that "they all look alike to me"o In cross-examination when aSked whether he could have mistaken the appellant for anyone else and in part icular one of h is brothers, Con­ rad rep! led, lIit could have been"o Conrad could not remember any dhtill1guishing features about the clothes worn by the person who sold him the boat, motor and trailer, nor could he recall any distinguishing facial characteristics of that persono While we have grave suspiccon that Conrad was not telling the whole truth, suspicion cannot prevail over the evidence before the Court 0 Where the one witness who had contact with the person who sold him the stolen articles, states, under oath, that it could have been someone other than the accused, then it is difficult to see how identaty can be properly established, even considering the receipts given to Con­ rad and signed George Rehberg: see Rex Vo Brown ~nd An9~., 99 CoCoCo 141~ . O'Halloran.!' JQAO;i 147, and ~9ina Vo Smi.!~, lOS CoCoC o 58, MacKay, JoAo, 51 0 leClve to appeal should be granted o After cOi1sidercng the whole of the evidence and the sub­ missions of counsel, we are all of the opinion that the guilt of the , ~ appe11 ant \'1a5 not proven beyond reasonable doubt 0 Accordingly, the appeal should be allowed and the con­ viet ion quashedo DATED at Halifax, Nova Scotia, this 19th day of .~nuary, 3

Members of Appeal Division McKinnon, Co.Jo.No.So. Coff in, JoA 0. Cooper, J ..Ao. Counsel Robert G. Belliveau, Esqo Appellant Graham W. Stewart, Esqo Respondent 4