C.A.C. No. 02842
C. A.C. No. 02861
NOVA SCOTIA COURT OF APPEAL
Jones, Hart and Hallett, JJ.A.
Cite as: R. v. Kirincich, 1994 NSCA 33
BETWEEN:
STEPHEN MURRAY KIRINCICH ) Rosanne M. Skoke
) for the Appellant
Appellant )
)
- and - )
) Gordon S. Gale, Q.C.
) for the Respondent
HER MAJESTY THE QUEEN )
)
Respondent ) Appeal Heard:
) December 8, 1993
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) Judgment Delivered:
) January 14, 1994
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THE COURT: Both appeals from conviction dismissed per reasons for judgment of Hallett, J.A.; Jones and Hart, JJ.A. concurring.
HALLETT, J.A.
The appellant was convicted of two charges of theft following two separate trials. The charges against the appellant were:
" (1) At or near New Glasgow, in the County of Pictou, on or about the 24th day of May, 1992, did unlawfully break and enter a certain place to wit: the New Glasgow High School situate at New Glasgow and did commit therein the indictable offence of theft, contrary to Section 348(1)(b) of the Criminal Code of Canada.
(2) At or near New Glasgow, in the County of Pictou, on or about the 10th day of May, 1992, did steal money, the property of the New Glasgow High school, of a value not exceeding one thousand dollars, contrary to Section 334(b)(i) of the Criminal Code of Canada."
Both charges were proceeded with by indictment in the Provincial Court at New Glasgow before the Honourable Judge Clyde MacDonald. In the case of the first charge, a verdict of guilty was entered on the 1st day of February, 1993, to the included offence of theft pursuant to s. 334(1)(b)(i) of the Criminal Code, R.S., c. C-34, s. 1. On the second charge the trial was held on March 17th, 1993, and a guilty verdict was rendered on March 22nd, 1993.
Briefly put, both charges involved the theft of coins from soft drink vending machines at the high school. An inventory check had indicated that substantial sums of money had been unlawfully taken from the vending machines over a period of time. A video camera surveillance was installed to focus on one of the machines. The camera recorded a person accessing the machine by key on both May 10th and May 24th. As a result of the video tape surveillance and observations by acting vice principal Mr. Grovestein and by two members of the New Glasgow police the appellant was apprehended, arrested and searched immediately after he left the school on Sunday evening, May 24th, 1992. The search revealed a number of $1.00 coins in the appellant's possession. The coins had been marked and placed in the vending machine. The search also uncovered a set of keys to the school and two keys that were subsequently proven to be capable of unlocking the vending machines. Six witnesses testified that the person videotaped accessing the machine on both dates was the appellant.
The grounds of appeal in connection with the theft of May 24th, 1992, were set forth in a notice of appeal dated March 1st, 1993. Those grounds are as follows:
" 1. The learned trial judge erred in his determination of a question of law and its application to the facts, by dismissing the Appellant's application pursuant to Section 12 and Section 24 of the Charter of Rights and by failing to exclude certain evidence and further by failing to grant a stay of proceedings;
2. The learned trial judge erred in the determination of a question of law and its application to the facts by dismissing the Appellant's application with respect to the argument of entrapment and abuse of process raised by the Appellant at trial, by failing to grant a stay of proceedings;
3. The learned trial judge erred in the determination of a question of law and its application to the facts by dismissing the Appellant's application with respect to the issue of admissibility of video tape evidence at trial and the issue of continuity of evidence and the existence of reasonable apprehension of the accused with respect to this. The trial judge erred by failing to exclude the videotape evidence at trial and further erred by allowing witnesses to interpret and narrate the black and white, soundless video, and by placing substantial weight on this evidence;
4. The learned trial judge erred in determining a question of law and its application to the facts relevant to the essential element of the offence, mens rea. The learned trial judge erred by dismissing in its entirety and placing, if any, weight on the expert opinion evidence of Dr. Cook, neuropsychiatrist with respect to the issue of mens rea;
5. The learned trial judge erred by convicting the Appellant on the basis of circumstantial evidence;
6. The learned trial judge erred by failing to find on the evidence that there is a reasonable doubt to be granted in favour of the Appellant;
7. And any other grounds of appeal that may arise at the time of hearing the appeal."
The grounds of appeal respecting the May 10th, 1992 offence were set forth in the notice of appeal dated April 6th, 1993. The grounds were similar to grounds 3, 5, 6 and 7 as set out in the notice of appeal of the conviction for the May 24th, 1992, offence.
The May 24th offence was tried first and I will first deal with the issues raised on the appeal with respect to that conviction as it was the principal focus of the arguments by the appellant's counsel. There is no merit whatsoever to the argument that there was entrapment and abuse of process and that the learned trial judge erred in failing to grant a stay of proceedings on that ground. A video surveillance was quite properly set up in the school to ascertain who was stealing from the machine. There are no facts to support an allegation of entrapment or abuse of process.
With respect to the alleged error by the trial judge in admitting the videotape evidence, a review of the transcript shows that none of the persons in whose possession the videotape was at any time altered or tampered with the video in any way. There is no air of reality to the allegation that the video evidence was altered.
Subject to the comments I will make with respect to the evidence of Dr. Allan M. Cook the learned trial judge did not err in convicting the appellant on the circumstantial evidence which was overwhelming. The learned trial judge properly directed himself on the legal test and there is no merit in this ground of appeal.
The only point raised on the appeal with respect to the May 24th conviction that warrants any comment is the ground that alleges that the judge erred in finding that the appellant had the mens rea to commit the offence of theft in that the trial judge erred in giving little weight to the opinion evidence of Dr. Allan M. Cook with respect to this issue.
It is a well-known principle that a trier of fact has the obligation and the right to assess the weight to be given to an expert opinion.
Dr. Cook is a consulting neuropsychiatrist at the Victoria General Hospital. He also teaches in the Department of Psychiatry at Dalhousie University. The appellant's counsel tendered at trial a 7-page written report from Dr. Cook; Dr. Cook also testified. The evidence indicates that Dr. Cook first made an outpatient evaluation of the appellant on February 25th, 1992 and subsequently on March 5, 1992. These evaluations were done prior to the commission of the alleged offences. The appellant had been referred to Dr. Cook by the appellant's family physician. At the time of his initial investigation Dr. Cook observed that the physical symptoms presented by the appellant included dizziness, vertigo, hot and cold spells, nausea, a sense of "whooshing" in the ears, light headedness, lack of energy, headaches and dysuria. The history as set out in the report indicates that these symptoms had commenced in the fall of 1989 and continued through into the summer of 1990 when the appellant developed "decreased sleep, marked fatigue, poor concentration, making errors in judgment, was sad and had a lot of dreams about death". The report makes reference to the fact that in October, 1990, the appellant felt he was unable to carry on his work as a teacher at the New Glasgow High School and that he has been on disability since that time. The appellant had been in a motor vehicle accident in 1979 which gave rise to a whiplash injury and neurological symptoms for which he was off work at that time for two and a half years. When first evaluated by Dr. Cook in February of 1992 the appellant was on significant amounts of medication; the doctor's report shows that the appellant is a non-smoker and a non-drinker. Dr. Cook's initial impression was that the appellant was experiencing a "major depressive episode". It would appear that his diagnosis at that time was as follows:
" At this point, it would seem inappropriate to diagnose this as an organic affective syndrome based on the time course of his symptoms prior to the initiation of anti-hypertensive therapy, although he does indicate that his thyroid indices have not been evaluated recently. It is possible that his compulsive personality style has predisposed him to depression in the face of limited academic resources in his area, and frustrations which he experiences relative to style of administration. However this would not be a new development for Mr. Kirincich and it is difficult to explain solely psychodynamically why he should have such symptoms now. At this point, particularly given his degree of hypertension, I could not confidently ascribe all of his physical symptoms to a psychological etiology, and the possibility of Meniere's disease needs to be raised. Presumably, the presence of his depression may exacerbate the severity at least in his perception of all of his physical symptoms, therefore requiring relatively expeditious treatment for depression."
His recommendations at that time was that the appellant be admitted to the Victoria General Hospital in the early spring when a bed was available at which time Dr. Cook would review the risk factors and carry out other tests. In the meantime he felt that there should be a change in medication and that in his opinion the appellant, by virtue of his severe depressive symptoms and his physical complaints, was legitimately disabled. Dr. Cook's report states that on March 5th, 1992, he again saw the appellant who was unimproved, depressed, increasingly desperate and distressed by lack of improvement in his physical and mental condition. However, there were no availability of psychiatric beds at the Victoria General Hospital.
In his report which appears to have been prepared in November of 1992, Dr. Cook makes mention of the fact that he had collateral information that indicated that after March 5th the appellant had become increasingly restless which he stated was a common side effect of the drug Prozac; that the appellant was unable to sleep, was depressed and desperate leading him to use sedating medications (zopiclone and lorazepam) that had been prescribed to him for sleep. His report also indicates that the appellant had indicated that he had been encouraged by his family physician to remain in contact with the school and that he felt distinctly uncomfortable and anxious about doing so which led him to the use of sedating medication to make visits to the school possible.
Dr. Cook's report states that immediately following the appellant having been confronted and charged by the New Glasgow police on May 24th, 1992, the appellant was urgently admitted to the hospital in New Glasgow pending psychiatric admission. The appellant was transferred to the Psychiatric Floor in the Victoria General Hospital on June 29th, 1992. The appellant continued to show major depressive illness with anxiety. The prozac had been discontinued and as a consequence the appellant was no longer required to use sedative medication to the extent he had previously. The report indicates that the appellant was unable to remember details of the events with which he was charged. Tests undertaken by Dr. Cook showed that as a result of a head injury in 1979 the frontal area of his brain had been affected which affected both bladder control, mental concentration and impulse control. Dr. Cook's report then goes on to state that the appellant underwent "an interview meditated by intravenous barbiturate (methohexital)". During this interview the appellant, according to Dr. Cook's report, demonstrated "sedation state-dependent memory for the events". The appellant recalled that on the day of his arrest he had taken a dosage of an uncertain amount of Lorazepam, at least 2 milligrams orally an hour and a half to two hours before going to the school. The report does not indicate whether the appellant could remember what took place at the school while in this drug induced interview. However the report does say: "After completion of the interview he was again unable to recall the events that transpired within the school despite being aware from an audio tape of the interview the details of his actions". One might infer, although it is not mentioned expressly in the report, that he could remember while under the drug induced interview what took place in the school.
The last part of the report deals with Dr. Cook's opinion that the effects of medication in the appellant's case were multiple. The report concludes with the following:
" Prozac produced a characteristically noxious restlessness, called akathisia, which is recognized (although not solely or uniquely) in the literature to be associated with suicide, homicide, and disinhibition of aggressive or ill-judged behaviour. This appears to have exacerbated his depressive-related irritability. This in turn led to the use of known disinhibiting sedative-hypnotic agents (zopiclone and lorazepam) through his waking time, resulting in state-dependent memory deficit, and abreaction (ie, the uninhibited perception and acting out of feelings which would normally be suppressed in his characteristic manner, as judged by collateral history with respect to his premorbid personality). It is also an exceedingly common phenomenon for severely depressed individuals like Mr. Kirincich to take things not belonging to them, and which they do not need, in a self-defeating, entirely uncharacteristic, paradoxical and irrational manner, as if courting punishment in keeping with their depressive self-recrimination.
Therefore, while actus reus may not be so obviously in question, in my opinion, Mr. Kirincich's allegedly criminal behaviour was the drug-induced abreactive production of a mind inflamed by serious depressive illness (which made him prone to act in a self-defeating, paradoxical and irrational manner), and organically based disinhibition, (in part at least related to prior head injury that has left demonstrable neuroimaging sequelae), leading to an absence of mens rea."
Dr. Cook's prognosis was that the appellant's depressive syndrome would become more treatable once the criminal proceedings were completed and his occupational fate decided.
Under direct examination Dr. Cook testified that the combination of drugs the appellant was taking would produce disinhibited behaviour. With respect to pharmacological state-dependent memory of persons taking certain combinations of drugs which effects their memory which he says is the state the appellant was in at the time of the offences, Dr. Cook testified:
" And we tested out that hypothesis while Mr. Kirincich was in hospital by administering him an intravenous barbituric medication, sodium methohexatol, and then asking him questions about the events of the time when he was at the school during the time of the alleged offence and he was, in that circumstance, able to remember the events of being in school. I might add this point that Mr. Kirincich was fully apprised of the kinds of questions that I was going to ask him prior to that interview. He offered no resistance to being interviewed; in fact, thought it would be something that would help him to be able to recall what had happened. Subsequent to being told about the content of that interview and about the events that transpired at the school, he was still unable to remember them although he was willing to acknowledge that it was quite likely the case. So that is a case for state dependent memory, pharmacologic state dependent memory."
With respect to his intent to commit the offence Dr. Cook was asked on direct examination by counsel for the appellant:
" Q. With respect to the specific allegations before the Court today, that of Steve taking money from the school pop machine, what, if any, comments can you make to the court on the basis of your report and your findings as to this type of behaviour?
A. I find it difficult to imagine how he would have formed a rational intent to carry out that act. My understanding of that whole scenario, based on all of the history that I've taken and on that [barbiturate?] interview, was that he went into the school in a strikingly abnormal mental state characterized by all of the thoughts that I've described previously of depression with regard to desperation, hopelessness, anxiety, anger, resentment, and that that was disinhibited by the concurrent administration of sedative hypnotic medications and aggravated by the both disinhibiting and agitating influences of Fluoxitine Prozac, and that, within two hours of going to the school, that is, prior to going to the school, he had ha--he took a dose of those med--of the sedative hypnotic medications and that that, in my opinion, significantly disinhibited him at that time.
When I took the--did the drug interview, the intensity of his emotion at that time was really quite striking, and that the actions which he then carried out, he was unable, even in that state, to give any kind of a reasonable explanation as to why he would do such a thing because it made no sense. It seemed like an uncoordinated in the sense of psychologically uncoordinated, vague lashing out, in the sense of hopelessness, desperation and resentment in that setting with no plan beyond that. There was no way in which that particular action bore any relationship, at least in my understanding from having reviewed it, to the people that he thought were, in fact, most contrary to him...."
Dr. Cook also went on to testify that he would appear normal to anyone observing him at the time.
Fundamental to the reliability of Dr. Cook's opinion as to how the drugs interacted to cause a state of mind in the appellant that he could not have intended to have stolen money turns on the reliability of the evidence that the appellant had taken drugs an hour or two before he went to the school on that Sunday evening, May 24th, 1992. Dr. Cook was cross-examined on this as follows: (p. 371)
" Q. Tell me, the amount of medication that Mr. Kirincich may or may not have taken on the evening of May 24th, 1992, you got that information from him?
A. That's correct.
Q. And he had no trouble recalling that in good detail?
A. He recalled what medication he had available because he had bottles and labels.
Q. Did he give you the time of the taking of the medication?
A. He gave me approximate time which is within two hours of going to the school.
Q. Okay. And he had no trouble recalling that in detail?
A. No --
Q. Exactly what he took?
A. Yes.
Q. And then, when he's at the school, he hasn't any recollection of what happens at the school. Tell me, does he have a recollection of being apprehended by the police?
A. That depends on the state within which you ask him. He has recollection of the full events of the evening during the barbiturate interview. During his alert, waking state, he has very patchy memory, nothing from fairly shortly around the time of being in the school and then brief snippits of being at the police station."
It would appear from this testimony that the appellant had some recollection of what took place both before and after the theft but not the theft itself.
Dr. Cook was cross-examined with respect to a statement made by the appellant, when apprehended by the police and taken to the police station, that some of the money was his, meaning the unmarked money. The Crown prosecutor put to Dr. Cook that this appeared to be a sensible, rationale and logical statement by the appellant. Dr. Cook answered that it was an accurate observation. Crown counsel then asked Dr. Cook whether or not it would be inherent in that statement that some of the money was known by the appellant not to be his, Dr. Cook stated that "that would be a, an im--certainly a reasonable implication from that". Dr. Cook's opinion was weakened under cross-examination.
A review of the trial judge's decision shows that he was satisfied beyond a reasonable doubt that the person who was videotaped at the machines was the appellant and that the appellant had taken the marked coins from the machine. There can be absolutely no doubt that the appellant took the money; the only issue being whether or not the Crown had proven beyond a reasonable doubt that he had the intention to deprive the school of the money. The evidence of the police officers who had apprehended him on the evening of May 24th, following the surveillance, was that he was alert and rational.
The learned trial judge dealt with Dr. Cook's evidence as follows: (p. 22 decision)
" In Dr. Cook's opinion, Mr. Kirincich had been experiencing a significant degree of depressive illness commencing from the time of his motor vehicle accident in 1979, and that the effects of his medication were multiple, in that Mr. Kirincich's allegedly criminal behaviour was the drug-induced and abreactive production of a mind inflamed by serious depressive illness (which made him prone to act in a self-defeating, paradoxical and irrational manner and organically based disinhibition, (in part at least related to prior head injury that has left demonstrable neuroimaging sequela ...leading to an absence of mens rea.
To assess and weigh this absence of mens rea opinion of Dr. Cook, I take into account Dr. Cook's evidence with the following facts, which I find:
(1) The utterance of Mr. Kirincich at the police station on May the 24th, 1992, in relation to the coins seized, "some of that is mine, I carry a lot of coin on me."
(2) The observations on May the 24th, 1992, of Mr. Kirincich by both constables, who as I've indicated before are experienced and seasoned police officers, and their observations at the time, and I'm repeating this again, Mr. Kirincich was co-operative, answered questions, understood the questions, indicated he did not want to contact a lawyer at that time, that Mr. Kirincich appeared to be normal, was neat in appearance, his eyes were clear, no smell of alcohol, and no trouble in operating his motor vehicle.
(3) The third factor or fact that I take into account, that is Mr. Kirincich attended at the school at 9:32 p.m. on a Sunday evening, when there was no activity at the school.
(4) The coins involved did not belong to the teachers, they were owned by the New Glasgow High School Student Council. And, I fail to see how a theft of coins from the student body would be a striking out at the administration or the teachers at the school.
(5) Dr. Cook did not see Mr. Kirincich on May the 24th, 1992, in fact the outer limits of Dr. Cook's seeing and evaluating Mr. Kirincich were March the 5th, 1992, and October the 19th, 1992.
(6) Another finding of fact that I take into account is Mr. Kirincich had no right to have a key, the keys of the soft drink machines, in his possession at the time, and Mr. Kirincich's conduct, together with his oral utterance at the time indicates to me that he understood the nature and character of the act.
Dr. Cook's opinion is an opinion that the court doesn't necessarily have to accept. If he had personally seen and evaluated Mr. Kirincich closer to May the 24th, 1992, his opinion may have had more weight. I place very little weight on his opinion.
I find that looking at the totality of the evidence, Dr. Cook's evidence does not raise a reasonable doubt in my mind that Mr. Kirincich had the absence of mens rea at the time of his alleged offence."
In rejecting Dr. Cook's opinion that the appellant did not have the mens rea of the offence of theft because of his depressed state and reaction to the drugs he was taking, the learned trial judge appears to have made two errors: first, he failed to recall that Dr. Cook saw the appellant daily from June 29th, 1992, to October 9th, 1992, at the Victoria General Hospital where the appellant was an inpatient. The evidence is clear that Dr. Cook did a daily patient evaluation of the appellant. The learned trial judge stated that the last evaluation prior to the offence was on March 25th, 1992, which is correct but that a further evaluation was not done until October of 1992. In fact, Dr. Cook was in a position to daily evaluate the appellant from June 29th, 1992 to October 9th, 1992, so that the evaluations that were done were closer to the offence date than the learned trial judge seemed to have recognized; the learned trial judge stated that Dr. Cook's opinion might have had more weight if the evaluation had been closer to May 24th. However, even that was over a month from the date of the offence and the first opportunity Dr. Cook had to evaluate the appellant following the offence. The learned trial judge's decision does not seem to take into account Dr. Cook's opinion that the appellant would appear normal to the police officers following his arrest and apprehension as that is the effect of the combination of drugs he was taking. The learned trial judge obviously put weight on the evidence of the police officers that the appellant was normal. However he did not refer to the evidence of Dr. Cook on that subject. While a trial judge does not need to refer to every piece of evidence that has led him to his verdict, his decision indicates that he may have overlooked some relevant evidence in assessing Dr. Cook's opinion. It is therefore prudent to review and weigh the evidence of Dr. Cook to ascertain if the verdict is supportable on the evidence. (Yebes v. R. [1988] 36 C.C.C. (3d) 417).
In assessing the weight to be given to Dr. Cook's opinion it must be borne in mind the opinion is only as good as the factual basis upon which the opinion is founded. As stated by Fauteaux J. in Wilband v. R. [1967], S.C.R 14 at p. 21 the value of a psychiatrist's opinion may be affected to the extent to which it may rest on second-hand source material. In this case the weight to be accorded the opinion must be viewed in light of all the other evidence and is very dependent on proof that the appellant ingested the drugs he says he did while under the influence of the barbiturate induced interview. As indicated in the learned trial judge's decision there was a substantial body of evidence that the appellant was in a cognitive state immediately following his apprehension. There is no evidence other than the hearsay evidence of Dr. Cook that the appellant had taken pills before he went to the school on Sunday evening, May 24th. The appellant did not testify. However, it would appear from Dr. Cook's trial testimony that the appellant had some recollection while in an awakened state with respect to events before he went to the school as well as after. The appellant could have testified as to whether or not he recalled having taken medication and in what amount. His evidence might have added weight to Dr. Cook's opinion.
As the appellant did not testify the Crown was denied the opportunity to test by cross-examination the reliability of Dr. Cook's evidence of the appellant having ingested drugs. The Crown could also have questioned the appellant about the May 10th theft as the appellant's counsel put in issue the appellant's capacity to form the intent for theft with respect to the May 24th theft. Furthermore, the appellant could have been cross-examined as to all the actions that he undertook on the evening of May 24th.
On such a key and elusive issue as intent, in view of the other credible evidence as to the appellant's apparent cognitive state on the evening of May 24th, the appellant's testimony as to what, if any, drugs he had taken that evening would have strengthened the opinion even if the appellant had only testified that he could not remember. To accept Dr. Cook's opinion that the appellant did not intend to deprive the school of the money he took one would more or less have to conclude that the appellant was in such a state due to the combined effect of the drugs on his mental state at the time that (i) he did not intend to drive his car to the school that evening; (ii) that he did not intend to use his key to unlock the door of the school; (iii) that he did not intend to open the machines with his key; (iv) that he did not intend to reach in and take the money and put it in his pocket; (v) that he did not intend to go to his car and insert the key in the ignition so he could drive away after he left the school; (vi) that he did not intend, when he advised the police officers that some of the money was his, to convey the impression that some of the money was his.
When intention is an essential ingredient of an offence the law is clear: it is a reasonable inference that a person intends the natural consequences of his or her acts. To accept Dr. Cook's opinion one would have to conclude that all these purposive actions undertaken by the appellant that evening were not intended to achieve their apparent objectives. The opinion is simply not supported by the evidence in view of what the appellant did on Sunday evening, May 24th, 1992. The fact that the appellant was less inhibited than normal and cannot remember what took place in the school if, in fact, that is the case does not raise a reasonable doubt that he did not have the intent to commit the offence of theft nor does the fact that the appellant was depressed. It was open to the trial court to reject the opinion of Dr. Cook in face of the other evidence that would indicate the appellant had the capacity to form the intent for theft. It is clear from the evidence that he was in a cognitive state immediately after being apprehended; he understood his Charter rights as stated to him by the police and understood that some of the money was his, and thus, apparently understood that some of the money did not belong to him.
It may be that the appellant stole because he was depressed, irritable or lashing out at his critics at the school but that does not mean that when he took the money he did not intend to deprive the school of the money; that is the intent element of the offence of theft. The overwhelming body of evidence in my opinion leads but to one reasonable inference; that is that the appellant intended the results of all his purposive acts which he undertook that Sunday night, May 24th, including the intent to deprive the school of the money he took from the vending machines.
In summary, after considering all of the evidence, I am satisfied that the learned trial judge quite properly gave little weight to Dr. Cook's opinion. I am satisfied beyond a reasonable doubt, considering all the circumstances, including a consideration of Dr. Cook's opinion and the good character evidence advanced on behalf of the appellant that he had the capacity to form the intent to deprive the high school of the money which he took on May 24th, 1992 and, in fact, had that intent. Therefore the verdict was supported by the evidence. I would dismiss the appeal with respect to the conviction for the offence which took place on May 24th, 1992.
With respect to the offence that took place on Sunday, May 10th, 1992, which was tried subsequent to the offence of May 24th and subsequent to the verdict in that trial, Dr. Cook did not testify. I have reviewed the evidence and the decision of the learned trial judge. I am satisfied there is no merit in any of the grounds of appeal raised. The videotape evidence of the May 10th incident was properly admitted into evidence. The appellant was identified as the person at the machines by six witnesses and it is clear that between Friday at 3:30 p.m. and Monday morning the machines had been accessed by someone with a key and money taken. The video showed the appellant access the machines and showed him putting something in his pocket, the reasonable inference being it was money. When he was apprehended on May 24th the appellant had the keys to the pop machines in his possession. He did not have authority to have these keys. The circumstantial evidence was sufficient to justify the learned trial judge's finding that the evidence proved beyond a reasonable doubt that the appellant was the person who took money from the machines on May 10th, 1992. It would be irrational speculation to suggest that he did not. No medical evidence was adduced at the trial of the May 10th, 1992, offence. Lack of intent was not raised as a ground of appeal in connection with the May 10th offence. In my opinion the learned trial judge properly instructed himself on the presumption of innocence, reasonable doubt and the law respecting findings of guilt based on circumstantial evidence. I would dismiss the appeal from conviction for that offence.
In summary both appeals from conviction ought to be dismissed. The verdicts are not unreasonable nor unsafe.
Hallett, J.A.
Concurred in:
Jones, J.A.
Hart, J.A.
C.A.C. No. 02842
C.A.C. No. 02861
NOVA SCOTIA COURT OF APPEAL
BETWEEN:
STEPHEN MURRAY KIRINCICH
)
Appellant )
- and - ) REASONS FOR
) JUDGMENT BY:
HER MAJESTY THE QUEEN )
) HALLETT, J.A.
)
Respondent )
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